State Authority

Question 1

Name the four key features of administrative law.

Answer 1

1. State Authority
2. Administrative Action
3. Just Administrative Action
4. Control of Administrative Action

Question 2

What is state authority and what role does it play in administrative law?

Answer 2

Public power exercised by an organ of state or a natural or juristic person over another person or body in a subordinate position. If the person exercising a certain authority is not a state authority, administrative law does not apply.

Question 3

What is administrative action?

Answer 3

The conduct of functionaries and institutions when exercising a public power or performing a public function in terms of any legislation. It usually takes the form of a “decision” of the administrator that has an adverse effect on the person/persons.

(In a scenario describe administrative action means to describe the decision made)

Question 4

What is just administrative action?

Answer 4

Section 33 of the Constitution imposes a duty on all administrators exercising public power to act lawfully, reasonably, procedurally fair and to give written reasons when the rights of the subordinate person are adversely affected.

Question 5

How do we control administrative action?

Answer 5

By correcting administrative action that is not just through remedies for prejudiced people against the administrator.

Question 6

What is Ubuntu?

Answer 6

Ubuntu means humanness. It is an African view of life and the world. It involves sympathy, care and sensitivity for the needs of others, respect, patience and kindness.

Question 7

Define administrative law.

Answer 7

Administrative law forms part of public law. Administrative law regulates the activities of organs of state and natural or juristic persons that exercise public powers or perform public functions. Regulating the activities of organs of state and natural or juristic persons include prescribing the procedures to be followed when public powers are exercised, or public functions performed; and ensuring that such action is within the boundaries of the law. Regulating also includes control over such action.

Question 8

Describe the public-law relationship.

Answer 8

The public-law relationship is a vertical one between someone in authority and a subordinate or lower-ranking individual. This relationship is between the state and the individual.

Question 9

Describe the private-law relationship.

Answer 9

The private-law relationship is a horizontal one between individuals who are on equal footing.

Question 10

What are the characteristics of the administrative-law relationship?

Answer 10

1. At least one of the legal subjects must be a person or body who exercises power.
2. More important, the position of power must be held by a person or body clothed with state authority, and who is able to exercise that authority.

The authoritative person must have the power to prescribe, restrain or allow other individuals to act in a certain way. Moreover, such exercise of power may affect the rights of the person in the relationship, leaving such a person in a subordinate position.

Question 11

What is the general or objective administrative-law relationship?

Answer 11

In the general relationship the legal rules governing the relationship between the parties apply to all the subjects within a particular group. These rules apply impersonally and non-specifically and not to a particular identifiable legal subject. a Group must be confined to a certain class of persons, such as refugees etc. The general relationship is created, changed or ended by legislation.

Question 12

What is the individual or subjective administrative-law relationship?

Answer 12

In an individual relationship, legal rules apply personally and specifically between the parties. The legal rules apply to specifically identifiable legal subjects. Individual relationships are created by individual administrative decisions. They are therefor not affected by new general legislative provisions unless stated otherwise.

(Example: The decision affects one refugee and not refugees as a whole)

Question 13

What does “organ of state” mean?

Answer 13

Section 239 of the Constitution states as follows:
“organ of state” means
(a) any department of state or administration in the national, provincial or local sphere of government; or
(b) any other functionary or institution
(i) exercising a power or performing a function 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,
but does not include a court or judicial officer.

(NB! Must memorize exactly)

Question 14

Give three examples of private-law issues regulated by legislation.

Answer 14

1. Relationships between employer and employee. (Contracts are governed by legislation like the Labour Relationships Act)
2. Relationship between husband and wife. (legislation to prohibit domestic violence like The Prevention of Family Violence Act)
3. Legislation to prohibit unfair discrimination by private persons and companies like The Promotion of Equality and the Prevention of Unfair Discrimination Act.

Question 15

Which of the following are “organs of state”, why?

1) The board of the South African Broadcasting Authority (SABC)
2) The high court issuing an interdict prohibiting the municipality to proceed with plans to expropriate land
3) The National Soccer League, when it disciplines a player

Answer 15

1) Yes. It is an institute in terms of statute (the Broadcasting Act) and it performs public functions and exercises public power.
2) No. Courts and judicial officers are excluded from the definition of an organ of state.
3) No, it does not perform it’s functions in terms of legislation.

Question 16

What is the role of associations, clubs and other “private” organizations when it comes to being “organs of state”?

Answer 16

Although they have professional status (example: Kaiser Chiefs) they are not organs of state. They are not created by statute and do not possess state authority.
However, the common-law rules of administrative law have been applied to them, because the management is in a position of authority over a member.

Question 17

Is the subordinate person powerless in the authoritative relationship?

Answer 17

No, persons in the subordinate position are never stripped of their rights, privileges and interests when entering in such relationships. Neither are those in authority allowed to abuse their power.

Question 18

What are sources of law?

Answer 18

The places where we can find the legal rules, norms, principles and values that govern a particular branch of the law. The state authority to act - in terms of administrative law - must therefor be authorized in a specific source of law.

Some sources are more authoritative than others, these have binding authority; whilst the others only have persuasive authority.

Question 19

Name the binding/authoritative sources of law.

Answer 19

1) The constitution of the Republic of South Africa, 1996
2) Legislation
3) Case law or judicial precedent
4) Common Law
5) Administrative practice
6) Ubuntu
7) International Law

Question 20

Name the persuasive sources of law.

Answer 20

1) Writings in books and journals expressing academic opinions
2) Policy Documents such as Green and White Papers
3) Reports by “state institutions supporting constitutional democracy”, such as reports from the Human Rights Commission
4) Foreign Law