Mistakes as an aspect of lawfulness Flashcards
Lawfulness of an administrator’s actions ito a mistake
An administrator’s action may be unlawful if they make a
mistake relating to their authorisation.
How do mistakes relate to the questions of authorisation?
§ Who has the power.
§ What the administrator can do in terms of the power.
§ How the power is performed.
What are the two forms of mistake?
Ø An error of law; or
Ø A mistake of fact
How do mistakes by error of law occur?
Ø Occurs when an administrator takes administrative action on the basis of the incorrect interpretation of the law that is set out in:
§ The empowering provision; or
§ Any other applicable law
* Court judgment
* Statute
What must an administrator do to avoid an error of law?
Ø Therefore, an administrator must:
§ Take the administrative action upon a correct interpretation
of the applicable law.
§ If they fail to do that, then it may be unlawful.
Ø Why is it only that a mistake by an error of law “may” be reviewable?
§ The error must be material.
Authority that administers mistake by error of law
v Section 6(2)(d) of PAJA
Ø A court or tribunal has the power to judicially review an
administrative action if the action was materially influenced by
an error of law.
Whats the test for Materiality of an Error of Law
Ø Would the administrator have reached the same decision if they
adopted the correct interpretation of the applicable law?
§ If Yes à Not material and not unlawful.
§ If No à It is material and is unlawful.
Ø So basically, if they made the decision because of the error in
law, then it is material and the administrative action is unlawful
What is a mistake of fact?
Ø An administrator must take the administrative action upon the
correct/true facts (or relevant conditions).
Ø A mistake of fact occurs when the administrator takes the
administrative action on the basis of the incorrect facts (or
irrelevant considerations).
§ Such a mistake may be unlawful
* This is the case because it must also be material.
Whats the authority administering mistake of fact?
v Section 6(2)(e)(iii) of PAJA
Ø A court or tribunal has the power to judicially review an
administrative action if:
§ The action was taken because irrelevant considerations were
taken into account or relevant considerations were not
considered.
Ø Irrelevant Considerations à Incorrect/mistaken facts
Ø Relevant facts not considered à Correct/true facts
Chairman, State Tender Board case on when a mistake of fact is material
§ A mistake of fact will be material if it was the direct cause
of the decision (administrative action).
PAJA authority on materiality of mistake of fact
v Section 6(2)(i) of PAJA
Ø A court or tribunal has the power to judicially review an
administrative action if:
§ The action is otherwise unconstitutional or unlawful.
Ø This is an alternative ground of review.
Ø It is a general ground of review, for instances that do not neatly
fit into any of the other grounds of review in section 6(2) of
PAJA.
general rule on lawfulness as a standard of just administrative action
Ø Lawfulness is a basic standard of administrative justice
Ø The core of lawfulness is authorisation.
Ø Lawfulness is directly linked to the overarching constitutional
principle of legality which is an aspect of the rule of law
What does lawfulness require?
Lawfulness requires all public action to be based on a valid
source of power or authorisation.
§ Authorisation = Empowering provision
Ø Lawfulness further requires that the administrative action taken
be aligned to the authorisation in the empowering provision.
What does PAJA say on Lawfulness?
PAJA does not contain a consolidated statement of what the
lawfulness standard of administrative justice in Section33 of the
Constitution entails.
Ø PAJA only contains various grounds of review in section 6(2) that
are related to the standard of lawfulness.
