Unit 4 - Grounds of review of administrative action Flashcards
What is administrative law in terms of seperation of powers ?
Administrative law is an incident of the separation of powers, where the courts regulate and control the exercise of public power by the other branches of government, as outlined in Pharmaceutical Association of SA & Another case.
Where is judicial review explicitly mandated ?
Judicial review is explicitly mandated in Sections 33 and 34 of the Constitution.
How do courts exercise judicial oversight in administrative law ?
- Courts oversee administration through judicial review, ensuring compliance with administrative law.
- This is to ensure that administrative actions comply with constitutional standards.
What rights are guaranteed under Section 33 of the Constitution ?
- Under Section 33, everyone has the right to administrative action that is lawful, reasonable, and procedurally fair.
- Additionally, if administrative action causes adverse effects on rights, reasons must be provided.
What does national legislation need to provide for, according to Section 33 ?
- The review of administrative actions.
- Imposing a duty on the state to give effect to the rights of lawful, reasonable, and fair action.
- Promoting an efficient administration.
What is the court’s role in administrative law ?
- The court’s role is not to take over the functions of the administration but to review how decisions are made.
- The court ensures that administrative actions are taken according to the relevant law and consistent with the standards of lawfulness, fairness, and reasonableness.
What can a reviewing court determine ?
- Whether the administration has exercised its functions in a manner prescribed by the relevant law.
- Whether the actions are consistent with the standards of lawfulness, fairness, and reasonableness.
- The court does not assess the appropriateness or correctness of the administrator’s decision, unless the challenge is based on reasonableness or a mistake of fact or law.
What is the difference between valid and invalid administrative conduct ?
- Valid administrative conduct meets the standards of lawfulness, procedural fairness, reasonableness.
- Invalid administrative conduct fails on grounds of unlawfulness, procedural unfairness, unreasonableness.
How does the court assess administrative conduct ?
- If the action is public power, the grounds of review under the Promotion of Administrative Justice Act (PAJA) should apply.
- If it’s non-administrative action, the legality grounds of review apply.
- For private power, common law grounds apply if the power mimics public power, such as coercive power over individuals in non-employment contexts.
What is required for administrative action to be lawful under Section 33 ?
- Lawful: The conduct aligns with the rule of law.
- Procedurally fair: The administrator must follow a fair, impartial process.
- Reasonable: The administrator must justify their decision as rational, effective, and sometimes proportional.
What are the grounds of review under Section 6(2) of PAJA ?
- Conduct satisfies the definition of administrative action in Section 1 of PAJA.
- The action is inconsistent with the standards of just administrative action.
- The conduct is judicially reviewable on the grounds stated in Section 6(2) of PAJA.
What are the grounds of review based on legality ?
- Unlawfulness.
- Procedural unfairness.
- Irrationality.
What does the lawfulness enquiry
entail ?
- There must be valid authorization in an empowering provision.
- The administrative action taken must align with or overlap with the authorization in the empowering provision.
- If the administrative action aligns with the authorization, it is lawful. If not, it is unlawful.
How do you determine the elements of the authorization conferred by an empowering
provision ?
- What was authorized ?
- Who was authorized ?
- How was the authorization prescribed to be carried out ?
What happens if an administrator acts outside their authority ?
If an administrator acts outside their authority and deliberately relies on an empowering provision that does not authorize their action, they will act unlawfully, even if another provision could have authorized the action.
Can an administrator change a decision already taken ?
An administrator can change a decision if they are authorized to do so. If not authorized, the change is reviewable under Section 6(2)(f)(i) of PAJA as unlawful.
What happens if an administrator changes a decision they are not authorized to change ?
- If an administrator changes a decision without authorization, their action will be unlawful.
- The administrator must apply to the court to set aside the original administrative action if it is defective.
What is required for an entity to be an authorized body or entity under administrative law ?
- All required members must be included.
- The entity must comply with the requirements of how it should be constituted.
- If not correctly constituted, the entity’s actions are unlawful.
What is delegation in the context of administrative law ?
Delegation refers to the transfer of decision-making power from a senior official (the delegator) to a lower-ranked official (the delegatee) to exercise on behalf of the senior official.
When can an administrator delegate their powers?
An administrator can delegate their power to another person only if such delegation is authorized by the empowering provisions.
What happens when a delegated decision is reviewed ?
A delegated decision can be reviewed if the delegation was not authorized. The test for lawfulness includes determining:
- Who was originally authorized to make the decision ?
- Was the delegation authorized by the empowering provision ?
Can deviations from prescribed procedures make administrative actions unlawful ?
Deviation from prescribed procedures will not necessarily result in unlawfulness. If the deviation does not materially affect the purpose of the provision, the administrative action may still be lawful.
What is the test for unlawfulness of deviation from prescribed procedures ?
- Possibly lawful: No deviation or the deviation was not material.
- Unlawful: There was a deviation and it was material.
What are subjective and objective substantive preconditions in administrative law ?
- Subjective preconditions: These confer a wide discretion on the administrator to decide if the facts exist based on their view.
- Objective preconditions: These refer to facts that can be objectively determined, giving the administrator less discretion.
