Lawfulness part 2 Flashcards
ACDP held that regarding procedural jus facts. the court must assess whether the actions of the applicant constituted compliance with the statutory provisions viewed in light of their purpose
False
- Allpay held this
We must take a purposive approach to Procedural juris facts
True
- ACDP
According to the case of Pepcor, review of non-juris mistake of fact, will succeed on:
1. In public interest
2. If theres potential prejudice to party whose favour the decision has been made.
True
A non-juris mistake of fact must be uncontentious and objectively variable
True
- Dumani case
The threshold for non-jurisdictional mistakes of fact is : objectively varifiable
True
“Abuse of discretion” is closely linked to reasonableness and rationality
True
Courts decide on the correct interpretation of the law.
True
-Standard of correctness
“abuse of discretion” engages a courts power to interpret and define the ambit of authority conferred on administrators by provisions.
False
- This is authority + jurisdiction.
- AOD is about the constraints that the law imposes in the exercise of discretion.
UCT held that decisions can be set aside even if the purposes are partly legitimate and partly ulterior
True ?? - i think? idk
Dishonest conduct is not a ground of review anymore
False.
- Bad faith is reviewable in terms of PAJA
PAJA and the Common law provide that administrators cannot simply decline to act/decide
True
- Both CL and PAJA
In Offit, the court held that the ground “failure to take a decision” refers to a decision that the administrator is under an obligation to make.
True
- doesnt apply simply to indecisiveness.
- does not concern itself with policy considerations.
An action can be set aside, under PAJA and S33, if an action was taken because of the consideration of relevant and irrelevant considerations.
False
- Must be set aside under the specific empowering provision
- If no empowering provision, courts seek to decide which considerations are relevant. (Concern : this can be subjective)
Under common law, dishonesty is a ground of review
False
- Controversial under Common law
Fettering is when the decision-maker limits their own discretion
True
Fetting is clearly included in PAJA
False
- Rely on catch- all provision
Kemp held that officials cannot exercise a discretion in accordance with an existing policy
False
- Officials can but must be independently satisfied that the policy is appropriate to the specific circumstances.
Administrators are able to make a decision and it will then be binding rules.
False
- Kemp: DMs must not turn policies/principles into binding rules because then there would be no room for discretion.
It is permissible for decision makers to adopt + apply general criteria evenly to applications where there is a large number of applicants.
True
- Bato Star
- Based on values of fairness + consistency
The incompatibility test is relied on when assessing whether there has been fettering by contract
True
- “Is the purpose of the contractual undertaking compatible with the purpose of discretion/power it fetters?”
- only incompatible contracts = void
The current view of “fetting by other promises and assurances” is that administrators may not stipulate in advance that they will act a certain way, as this fetters their future freedom of action.
False
- This is the orthodox view
Arbitary/capricious decision making is, in other words, “terrible decision-making”
True
In SARIPA, the court held that rationality speaks to the connection between the purpose and means + to juristification
False.
- Rationality only speaks to the connection between the purpose and means and NOT justification.
According to SARIPA, arbitrariness is concerned with justification
True
- Concerned with justification and is established by the absence of reasons or reasons which do not justify the action taken.
