Sources Of Admin Law

Question 0

What are the important sources of admin law?

Answer 0

Reference will be made to the interim Constitution 200 of 1993 (the interim Constitution), the final Constitution of 1996 (the Constitution), and the Promotion of Administrative Justice Act 3 of 2000 (PAJA).

Question 1

What role do the sources of admin law play in our understanding?

Answer 1

Sources comprising and influencing administrative law facilitates our understanding, comprehension and application of how administrative law, can be conceptualised. Moreover, it also provides a basis for understanding what constitutes administrative action.

Question 2

What is the historical impact of the sources on admin law?

Answer 2

Historical impact of the sources that we will examine, administrative law has come to rest on a constitutional foundation of jurisprudential principles informed by the rule of law and the more dynamic concept of the principle of legality.

Question 3

Why is the principle of legality of particular importance in the development of admin law?

Answer 3

The development and application of the principle of legality is a source of administrative law that requires particular focus given its ability to serve as a an augmented type power of, alternatively catch-all safety-net ensuring that the exercise of all powers conform to the most supreme law of the Republic, namely the Constitution.

Question 4

What other legislation must also be considered with regards to admin law?

Answer 4

The specialised nature of administrative law, forces us also to consider other relevant pieces of legislation such as the Labour Relations Act 66 of 1995 (the LRA), and the applicable common law that has arisen and intersected with administrative law.

Question 5

What is the significance of the source of power?

Answer 5

Power wielded by administrators does not arise in vacuo (in a vacuum). The same holds true for natural or juristic persons. The exercise of power, which needs to be subject to review, must arise from some source; whether a formal act on the part of the legislature in the form of a statute or an agreement between natural persons conferring power on a chairperson of a disciplinary hearing.

Question 6

What is the significance of PAJA on s33 of the Constitution?

Answer 6

Recall that s 33 of the Constitution is not self-executing. It is reliant upon statute, namely PAJA, to give effect to its provisions.

Question 7

How does PAJA define an ‘empowering provision’?

Answer 7

Section 1 of PAJA encompasses the definition section of the Act that defines ‘empowering provision’ as:

“a law, a rule of common law, customary law, or an agreement, instrument or other document in terms of which an administrative action was purportedly taken.”

Question 8

What is just administrative action?

Answer 8

The Constitution and PAJA are the two primary statutory sources of administrative law.

Just administrative action in s 33 of the Constitution, is defined as follows:

(1) ​Everyone has the right to administrative action that is lawful, reasonable and procedurally fair;
(2) ​Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons” [own emphasis].

Question 9

In terms of PAJA, what is administrative action?

Answer 9

A cumbersome, lengthy and intricate definition of administrative action, is given in terms of section 1 of PAJA as follows:

’administrative action’ means any decision taken, or any failure to take a decision, by-
a) an organ of state, when-
(i) Exercising a power in terms of the Constitution or a provincial constitution; or
(ii) Exercising a public power or performing a public function in terms of any legislation; or
b) a natural or juristic person, other than an organ of state, when exercising a public power or performing a public function in term s of an empowering provision,
which adversely affects the rights of any person and which has a direct, external legal effect, but does not include -
[…]

Question 10

What is the purpose PAJA?

Answer 10

The purpose of PAJA is “To give effect to the right to administrative action”. Moreover, the Preamble of PAJA, sets out the purport of PAJA as:

[to] promote an efficient administration and good governance; and create a culture of accountability, openness and transparency in the public administration or in the exercise of a public power or the performance of a public function, by giving effect to the right to just administrative action.

Question 11

How is the definition of administrative action limited in PAJA?

Answer 11

Administrative action in terms of PAJA is limited to various expressions and qualifications defining the exercise of powers and functions of public and private bodies that adversely impact upon the rights of any person and which has a direct, legal effect, to the exclusion of certain specifically defined powers and functions.

Question 12

On the other hand, administrative law remains a “difficult concept to capture”. What questions arise from such an observation?

Answer 12

First: ​Does the elusiveness of a concept of an area of law not confined to the limits of a definition compared with conduct that is lawful, reasonable and procedurally fair, as determined by a definition, namely administrative action, pose potential problems when deciding whether or not a certain power or function is administrative in the administrative law sense?

Second:​If the answer to the above is in the negative, cadit quaestio (the matter admits of no further argument, i.e. end of the matter/query)! However, if in the affirmative, what is the extent of the problem and how would or should our courts go about resolving such a problem?

Question 13

How are we required to interpret the Constitution in comparison to PAJA?

Answer 13

Interpretation of the Constitution representing the supreme law of our country as opposed to the interpretation of PAJA may require a somewhat different interpretative approach.

Constitutional statutory interpretation differs from non-constitutional statutory interpretation as described by Froneman J in the case of Matiso v Commanding Officer, Port Elizabeth Prison 1994 3 BCLR 80 (SE) when it was stated that:

“The interpretation of the Constitution will be directed at ascertaining the foundational values in the Constitution, whilst the interpretation of the particular legislation will be directed at ascertaining whether that legislation is capable of an interpretation which conforms with the fundamental values or principles in the Constitution.”

Question 14

What is the impact of the Constitution admin law?

Answer 14

Apart from being the supreme law of the Republic in terms of s 2, the Constitution provides, in terms of s 8(1) that the Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state.

The definition of organ of state resides in s 239.

Moreover, in terms of s 172(1) courts are instructed, when deciding constitutional matters, to declare invalid, any law or conduct, inconsistent with the Constitution.

Question 15

What did Goldstone J emphasise in the Fedsure case about the legislature’s exercise of power?

Answer 15

It was made clear in Fedsure Life Assurance v Greater Johannesburg Transitional Metropolitan Council 1998 2 SA 1115 (SCA), Goldstone J stated that:

[…] the Legislature and Executive in every sphere may exercise no power and perform no function beyond that conferred upon them by law.” [own emphasis].

Question 16

What did Chaskalson P state in Pharmaceutical Manufacturers case about the court’s power to review public power?

Answer 16

In Pharmaceutical Manufacturers Association of SA: In re Ex parte President of the RSA 2000 2 SA 674 (CC) Chaskalson P stated that:
​
[the Courts] no longer have to claim space and push boundaries to find means of controlling public power. That control is vested in them under the Constitution, which defines the role of the courts, their powers in relation to other arms of government and the constraints subject to which public power has to be exercised.

Question 17

In what way is the Constitution important with regards to the exercise of control and power?

Answer 17

The exercise of control and power and the review thereof through our judiciary takes place with reference firstly to the Constitution as the ultimate source of reference.

Question 18

How was the supremacy of the Constitution emphasized in the Fedsure Life case?

Answer 18

In Fedsure Life Assurance v GJTMC 1999 1 SA 374 (CC) the Constitutional Court stated that:

[…] public body exercising delegated powers [but] a deliberative legislative assembly with legislative and executive powers recognised in the Constitution itself…

[And in circumstances where] Parliament is no longer supreme. Its legislation, and the legislation of all organs of state, is now subject to constitutional control.

Question 19

How was the supremacy of the Constitution evident in President of RSA v SARFU?

Answer 19

The supremacy of the Constitution was also evident in President of the RSA v SARFU 2000 1 SA 1 where the court stated that:

It is clear that under our new constitutional order the exercise of all public power, including the exercise of the President’s powers under s 84(2), is subject to the provisions of the Constitution, which is the supreme law.

Question 20

What did the Pharmaceutical Manufacturers case state about the importance of the Constitution with regard to the exercise of public power?

Answer 20

In Pharmaceutical Manufacturers: In Re Ex Parte President of the RSA 2000 2 SA 674 the Court held that:

The […] the common-law principles that previously provided the grounds for judicial review of public power had been subsumed under the Constitution.

Further, it went on to state that:

What would have been ultra vires (outside his power) under the common law by reason of the functionary exceeding a statutory power in invalid under the Constitution according to the doctrine of legality. In this respect, at least, constitutional law and common law are inter-twined and there can be no difference between them.

Question 21

Ultimately what was the finding with regard to the power exercised by the president n the Pharmaceutical Manufacturers case?

Answer 21

Ultimately the Constitutional Court found that the President, although having acted bona fide (in good faith), to have exercised the public power as a member of the Executive in an arbitrary and irrational manner that fell short of the standards imposed by the Constitution on account of the fact that:

What the Constitution requires is that public power vested in the Executive and other functionaries be exercised in an objectively rational manner.

Question 22

In the Bato Star Fishing case, what did O’Regan J state is the ground norm of administrative law?

Answer 22

In Bato Star Fishing v Minister of Environment 2004 4 SA 490, O’Regan J held that:

The grundnorm of administrative law is now to be found in the first place not in the doctrine of ultra vires (outside her power), nor in the doctrine of parliamentary sovereignty, nor in the common law itself, but in the principles of our Constitution. The common law informs the provisions of PAJA and the Constitution, and derives its force from the latter.

Question 23

What admin law issue was addressed in the AAA investments case?

Answer 23

In AAA Investments v Micro Finance Regulatory Council 2006 11 BCLR 1255 (CC) in which the legal validity and status of rules of a regulatory body (the Rules), namely, the Micro Finance Regulatory Council (the Council) which regulated the classes of certain moneylenders, some of whom became known as micro-lenders were challenged. AAA was one such micro-lender who contested the validity of the rules of the Council.

The High Court had no difficulty in finding the Rules were of a nature that their exercise had a public function and were therefore constitutionally objectionable, the SCA found the Rules to be private in nature especially because neither the rule of law nor the principle of legality or the Bill of Rights had any application to the Rules which it found were wide-ranging in their wording and purport and that accordingly the Council, as an organ of State approved by the Minister of Trade and Industry, had been delegated the necessary power to issue the Rules.

Question 24

How did Langa CJ describe the position in AAA Investments?

Answer 24

Langa CJ, in AAA Investments aptly described the position as follows:

It is a fundamental tenet of our constitutional jurisprudence that all law, whether statute, common law, customary law or regulation must be read in a manner that is consistent with the Constitution. This principle is not limited to consistency with the spirit, purport and objects of the Bill of Rights as required by section 39(2), it is an implied principle of the Constitution as a whole that a constitutional interpretation should always be preferred to a non-constitutional interpretation. [own emphasis].

Significantly, Langa CJ held that on account of the constitutional interpretation of the law in question, namely whether the power which the Council exercised when making the rules was of a public nature, was subject to the application of the rule of law and the principle of legality flowing from the rule of law as enshrined in section 1 of the Constitution, that no need was required for the court to employ the interpretive mechanisms in terms of section 39(2) of the Constitution which provides:

When interpreting any legislation, and when developing the common law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.

Question 25

What admin law issue was addressed in President of RSA v Hugo?

Answer 25

In the matter of President of the RSA v Hugo 1997 6 BCLR 708 (CC), a case decided under the interim Constitution, Magid J found the President’s exercise of powers under section 82(1)(k) of the interim Constitution, now the equivalent of section 84(2)(j) of the Constitution, to release “all mothers in prison on 10 May 1994, with minor children under the age of twelve (12) years” in terms of the Presidential Act 17 unconstitutional on the grounds that it unfairly discriminated against persons on the basis of gender. On appeal before the Constitutional Court, it was found that whilst modern constitutional democratic states recognised prerogative powers that were derived from the English monarchical system, it also recognised that such powers were subject to the power of review of the court. Goldstone J, had the following to say about the exercise of the prerogative:

This does not mean that if a president were to abuse this power vested in him or her under section 82(1)(k) [now 82(4)(j) in terms of the Constitution] a court would be powerless, for it is implicit in the interim Constitution that the President will exercise that power in good faith. If for instance, a president were to abuse his or her powers by acting in bad faith I can see no reason why a court should not intervene to correct such action and to declare it to be unconstitutional.

Question 26

Why was PAJA introduced?

Answer 26

PAJA was introduced pursuant to the provisions of s 33 (3) of the Constitution and would serve as the principal authority to give effect to the right to administrative action that is lawful, reasonable and procedurally fair, together with the right to written reasons for administrative action.

Question 27

Are there instances where the right to admin action arises directly from the Constitution?

Answer 27

Our courts have, however, recognised instances where the right to administrative action arises directly from the Constitution itself by virtue of the social security rights to be found in ss 26 and 27 (See Minister of Works v Kyalami Ridge Environmental Association 2001 3 SA 1151 (CC) and President of the RSA v Modderklip Boerdery 2005 5 SA 3 CC).

Question 28

What is the intended purpose of PAJA?

Answer 28

PAJA came into operation on 30 November 2000. Its intended purpose is to give effect to the right to administrative action that is lawful, reasonable and procedurally fair and to written reasons for administrative action as contemplated in s 33 of the Constitution.

Question 29

What problem arises from PAJA?

Answer 29

The mere ten (10) sections PAJA presents itself with is prima facie welcoming, however, the devil lies, it is submitted, not in the shortness of PAJA but in the convoluted detail thereof.

Question 30

What difficulties arise when interpreting the definition of administrative action in relation to the right to just admin action contained in the Constitution?

Answer 30

Section 33 of the Constitution enshrines the right to administrative action that is lawful, reasonable and procedurally fair. This wording is sufficiently broad to give contextual and a purposeful meaning thereto in terms of s 39(2) of the Constitution. PAJA, on the other hand, whilst intending to give effect to the right to administrative action commences with a definition of administrative action that is narrow, inherently complex and difficult to understand. The scope for an open-ended definition of what constitutes “administrative action” is intentionally limited and restrictive. Instead of user-friendly definition or perhaps even a concept that can be developed according to the postulates of valued norms and principles that jurisprudentially lend themselves to the best possible interpretation that Ronald Dworkin would want a judge to bring to the matter (See Freeman M.D.A Lloyd’s Introduction to Jurisprudence 8th Ed (2008) 717-729 and esp. at 727) we have a definition which, Nugent JA has described as a “palisade of qualifications” (See Greys Marine Hout Bay (Pty) Ltd v Minister of Public Works 2005 6 SA 313 (SCA), as referred to by C Hoexter ‘’Administrative Action’ in the courts’ (2006) Acta Juridica 303 306. See also I Currie ‘What difference does the Promotion of Administrative Justice Act make on administrative law’ (2006) Acta Juridica 325).

Question 31

For present purposes, what is sufficient to know in terms of PAJA?

Answer 31

For present purposes, it is sufficient to know that PAJA is source of administrative law.

Question 32

What is Hoexter’s view in relation to the sources of admin law?

Answer 32

Hoexter is of the view that since almost all administrative power rests on some legislative source, ‘legislation is the most important source of administrative law.’

Question 33

What problems arose with regards to the courts power of review during the time of parliamentary sovereignty?

Answer 33

Under our previous sovereign parliament, not only were courts deprived of common-law substantive powers of review; their powers were further curtailed by ouster or privative clauses. The pinnacle of so-called constrained judicial power of review was reached during the 1980s state of emergency (See K O’Regan ‘Breaking ground: some thoughts on the seismic shift in our administrative law’ (2004) SALJ 424).

Question 34

What does s43 of the Constitution provide?

Answer 34

Section 43 of the Constitution vests all legislative power in Parliament, consisting of the national, provincial and local sphere of government which in turn is each invested with the necessary executive authority in terms of s156 of the Constitution.

Question 35

What is the most important source of admin power?

Answer 35

Even as the most important source of administrative power, namely s 43, it still falls to be considered within the parameters of section 8(1) of the Constitution. So as not to stifle the values and principles offered by a constitutional democracy, our courts are enjoined, where necessary, to engage s 39(2) when interpreting the Bill of Rights.

Question 36

What are prescribe acts?

Answer 36

The effective running of government is usually not reliant merely on a principle Act, for example the Constitution. To give effect to a specific provision therein contained, legislation is enacted which is referred to as a prescriptive statute. Examples of prescriptive statutes would be the LRA and s 1 thereof which gives effect to s 23 of the constitutional right to fair labour practices. A further example is PAJA which gives effect to s 33(3) of the Constitution, as does the Promotion of Access to Information Act 2 of 2000 which gives effect to s 32 of the Constitution.

Question 37

What is the purpose of prescriptive acts?

Answer 37

Prescriptive Acts would set out the parameters within which administrators must exercise their powers, functions and duties. It also sets out the framework for administrative legality by laying down the grounds for judicial review. Neither the LRA nor PAJA are empowering pieces of legislation. They are prescriptive in that they prescribe or dictate the steps and procedures administrators and organs of state must follow in the performance of their daily functions. Prescriptive Acts are to be distinguished from delegated legislation.

Question 38

What is delegated legislation?

Answer 38

Vital to the function of modern governments is ‘the delegation of authority to administrators to take action and make decisions that would otherwise have to be performed by the legislature or executive’. In other words, the legislature and executive, powers and functions to be exercised by administrators on their behalf.

Authority is conferred by means of ‘original or primary legislation’ in terms of powers conferred by the Constitution itself. Delegated legislation in turn may then be vested with power to confer authority to exercise power and functions in term s of regulations, proclamations, ordinances or directives on the part of other administrative officials.

For example, the grant of fire-arm licenses or the decision to withdraw a social grant. It has been argued that subordinate or delegated legislation has not been included in the definition of PAJA and therefore does not constitute administrative action. (See also Minister of Home Affairs v Eisenburg 2003 8 BCLR 838 (CC)).

Question 39

What uncertainty, with regards to delegated legislation, was dealt with in New Clicks SA case?

Answer 39

Although some uncertainty may have been expressed by the constitutional court in Eisenburg as to whether subordinate or delegated legislation in the form of regulations, promulgations and ordinances may constitute administrative action, any uncertainty in this regard was dealt a blow by the constitutional court in Minister of Health v New Clicks SA v Pharmaceutical Society of South Africa 2006 1 BCLR 1 (CC) wherein the court held that:

The remedial powers conferred by section 172 apply to all orders of constitutional validity including orders of constitutional invalidity in relation to delegated legislation.

Question 40

What importance does the finding in New Clicks case have with regards to delegated legislation?

Answer 40

The finding by the court in New Clicks is consonant with our common law where subordinate or delegated legislation has always been subject to administrative review. Moreover, it is submitted that there is a special need for ordinances, regulations and directives which have been issued by ministers in their administrative capacity, which are to be given effect to by administrators in their duly appointed administrative capacity, to be subject to review since it is the very exercise of their duties, powers and functions on a daily basis which has the widest impact on the rights of a person or persons.

Question 41

What are prerogative powers?

Answer 41

A prerogative which is given to the President as the supreme executive power is non-statutory in nature and derived from the Royal prerogative in English law which recognises and acknowledges the inherent power of the Crown to confer honours, pardon and reprieve offenders, declare war, appoint diplomatic agents and enter into and ratify international treaties.

Question 42

Why were prerogative powers not able to be reviewed prior to our democratic system of government?

Answer 42

Prior to our democratic system of government, the prerogative powers that were exercised fell to be reviewed narrowly in terms of ‘the existence and scope of the prerogative power, but not […] the way in which it was exercised’ (See Sachs v Dönges 1950 2 SA 265 (A)).

Question 43

What does our current dispensation allow with regards to prerogative powers?

Answer 43

Currently, in terms of s 84(2) of the Constitution the President is responsible for the exercise of various powers and functions, the nature of which no doubt are akin to that of a prerogative.

In this regard specific reference is made to section 84(2)(k), namely the conferring of honours. In the case of Mansingh v The President of the RSA & others, Case No. 20879/2011, Phatudi J, of the North Gauteng High Court held that the State President had no power in terms of s84(2)(k) to confer the status of senior counsel (silk) on practicing advocates.

South Africa, as do other countries, has a well-defined system of the conferment of honours which is available on the Presidency website (See www.thepresidency.gov.za). An example of honours that the President may confer is the Order of Mendi for Bravery or the Order of the Baobab awarded to citizens who have excelled in the fields of arts, culture, literature, music, journalism, or sport.

Question 44

Are the powers f the President in terms of s84(2)(k) regarded as admin action?

Answer 44

Section 84(2) should not be taken as consisting of a list of powers that constitute administrative action.

The appointment of a commission of enquiry in terms of s 84(2)(f) was held not to constitute administrative action in the matter of President of the RSA v SARFU. What matters more is the function and not so much the functionary in considering whether the action constituted administrative action.

It is interesting to note, as Hoexter points out, that almost all the powers listed under s 84(2), save for s 84(2)(e), are excluded from the definition of administrative action in terms of s 1 of PAJA.

Question 45

What role does the common law play in admin law?

Answer 45

The fact that administrative law functions subject to the Constitution and PAJA does not mean that the values and principles upon which it had so heavily relied prior to the constitutional dispensation are nugatory. In the Pharmaceutical Manufacturers Association case, Chaskalson P stated:

[It is] not to say that the principles of common law have ceased to be material to the development of public law. These well-established principles will continue to inform the content of administrative law and other aspects of public law, and will contribute to their future development.

Question 46

When may administrators actor the basis of common law powers?

Answer 46

Performance of an administrative function does not always take place within the framework of an Act, ordinance or regulation. There are times where, depending on the facts and circumstances, administrators may find themselves acting on the basis of common law powers. In Minister of Public Works v Kyalami Ridge Environmental Association Chaskalson P, stated:

[…] the legislative framework …was neither designed for nor appropriate to the provisions of relief to the victims of the flood. It cannot be said that these laws [referring to the Development Facilitation Act 67 of 1995, the Less Formal Township Establishment Act 113 of 1991, the Civil Protection Act 67 of 1977 and the Civil Defence Ordinance 20 of 1977] excluded or limited the government’s common-law power to make its land available to flood victims pursuant to its constitutional duty to provide them with access to housing.

Question 47

What is an example of the state being able to act in accordance with a common law power?

Answer 47

A common law power to contract in respect of immoveable property belonging to the state would also be a power derived from the common law, which may not exist in any piece of legislation. However, such power would need to be exercised within the limits of parameters of the Constitution (See Logbro Properties CC v Bedderson NO 2003 2 SA 460 (CC)).

Question 48

What role does African customary law play in admin law?

Answer 48

Section 39(3) of the Constitution does not deny the existence of customary law to the extent that it is not inconsistent with the Bill of Rights. The ‘empowering provision’ in s1 of PAJA is inclusive of African customary law. It is significant to note that African customary law is duly accorded a place within the framework of administrative law, but subject to the parameters of the Constitution (See Bhe v Magistrate, Khayelitsha 2005 1 SA 580 (CC)).

Question 49

What happens in instances where administrators make representations upon which affected parties rely to their detriment?

Answer 49

Take an example where an applicant, who, on the strength of an assurance that her license will be renewed, purchases certain equipment, only to discover that she has been grossly misled. Applying the doctrine of estoppel has far-reaching repercussions for the following reasons:

a) the administrator acquires powers that he or she were never vested with by legislation or the Constitution;
b) if the representation turned out to have been unauthorised by law or ultra vires, the application of estoppel in effect ‘ratifies’ decisions of the administrator which were not permitted to be made or taken in the first place, thereby rendering such decision(s) lawful;
c) the effect of (b) above is in total contradiction of the basic principle that lawful authority is required for all actions and decisions of public bodies;
d) Baxter would argue that public authorities cannot be allowed to unjustifiably claim for themselves powers which they do not possess; and
e) Permitting public authorities to waive legal requirements overlooks the very important principle of permitting them to ‘waive’ rights ‘in which the public have an interest’.

Question 50

What did the court find with regards to the doctrine of estoppel in the Eastern Cape Provincial Government v Contractprops25 case?

Answer 50

In Eastern Cape Provincial Government v Contractprops25 (Pty) Ltd 2001 1 SA 142 (SCA) a provincial government department entered into a number of leases without going through the appropriate tender board as required by law. In rejecting the argument that the leases should be ‘validated’ on the basis of the doctrine of estoppel the SCA, Marais J, refused to apply the principle doctrine of estoppel and stated:

If the leases are, in effect ‘validated’ by allowing estoppel to operate, the tender Board will have been deprived of the opportunity of exercising the powers conferred upon it in the interests of the taxpaying public at large….The fact that the respondent was misled into believing that the Department had the power to conclude the agreements is regrettable and its indignation at the stance now taken by the department is understandable. Unfortunately for it, those considerations cannot alter the fact that leases were concluded which were ultra vires the powers of the department and they cannot be allowed to stand as if they were intra vires.

Question 51

When will the doctrine of estoppel be used?

Answer 51

This is not to say that estoppel, as a source, is never applied. It has been indicated that estoppel has been permitted where a policy rather than a legal issue was at stake, where estoppel would serve only to waive an internal requirement and not a legal formality, and where the legal duty that had been violated was not mandatory (compulsory) but merely directory (optional).

Question 52

What importance does the decision in Durban City Council v Glenore Supermarket case play?

Answer 52

The case of Durban City Council v Glenore Supermarket 1981 1 SA 470 (D) is comparable to the evolution of our common law in accordance with our Constitution in terms of s 39(2) of the Bill of Rights. In the aforesaid case, the defendant owner of a block of flats relied on the correctness of the administrator’s invoices for a number of years. Suddenly it was confronted with a claim for thousands of rand in arrears rates and service charges which the administrator had neglected to claim. The defendant sought to estop the plaintiff’s claim whilst the plaintiff contended that to uphold the principle of estoppel would prevent the plaintiff in the performance of its statutory duties. Boruchowitz J, in denying the defendant the right to rely on the doctrine of estoppel stated that if plaintiff were to be estopped from charging the defendant as a result of an unintentional mistake plaintiff made on its billing system, the end result would be that the defendant would receive a “preference over other users of electricity” in the same area under similar circumstances. It is notable to take account of the court’s statement that:

[…] the right to reasonable administrative action, including proportionality, and the culture of justification of which it formed part, would not countenance immunity from estoppels where this would be of minimal benefit to the plaintiff and cause great hardship and injustice to the defendant.

Question 53

What role does international law play in admin law?

Answer 53

S v Makwanyane 1995 3 SA 391 (CC) emphasised the fact that international law whether it be binding or non-binding may be used by our courts as interpretive tools. The binding effect of international agreements is given effect to in terms of s 231 whilst s 233 enjoins our courts, when interpreting any legislation to prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law. Some international instruments our courts may have regard to are:

The Charter of the United Nations;
The Universal Declaration of Rights;
The International Covenant on Civil and Political Rights; and
The International Covenant on Economic, Social and Cultural Rights. ​

Question 54

What international instruments may our courts have regard to?

Answer 54

S v Makwanyane 1995 3 SA 391 (CC) emphasised the fact that international law whether it be binding or non-binding may be used by our courts as interpretive tools. The binding effect of international agreements is given effect to in terms of s 231 whilst s 233 enjoins our courts, when interpreting any legislation to prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law. Some international instruments our courts may have regard to are:

The Charter of the United Nations;
The Universal Declaration of Rights;
The International Covenant on Civil and Political Rights; and
The International Covenant on Economic, Social and Cultural Rights. ​

Question 55

What are examples of our case law referring to foreign law?

Answer 55

Our case law authority is replete with examples of our courts referring to foreign case law jurisprudence in the assessment of the values and principles to be applied to the outcome of a particular case (See Fedsure Life Assurance, Pharmaceutical Manufacturers Association, Bato Star Fishing, AAA Investments, and President of the RSA v Hugo.

Question 56

In conclusion, what do the different sources of law play in admin law?

Answer 56

Sources of administrative law, whether the Constitution, PAJA, Acts of parliament, delegated legislation, common law, African customary law, doctrine of estoppel or foreign case law have not been rendered meaningless as a result of the current prevailing constitutional dispensation. The Constitution, as read with PAJA, serve, in a sense as a form of constitutional jurisprudential holder of the common law principles and values upon which administrative law was built and will continue to be built in accordance with the principle of legality. Whatever the nature of the source, such source must be engaged with reference to the values and principles imposed by the constitutional democracy in which administrative law is to operate.