Untitled

• These notes were compiled by Prof. R Henrico – 02 March 2024
• STUDY NOTES (ADMINISTRATIVE LAW)
• Applicable lecture period-time: 04 March – 08 March 2024 (Week 4) 11 March – 15 March 2024 (Week 5)
• Administrative law


  The constitutional order in which administrative law is applied takes due account of the historical injustices of our past whilst simultaneously being informed by the current constitutional values and principles
• Inherent common law power of review

  1. Courts in the 1500s initially established themselves as keeping all other courts within their jurisdiction

  2. Eventually extended their jurisdiction to administrative bodies

  3. Evidenced in the Rook Case in 1598 where Judge, Sir Edward Coke, overruled a discretionary decision of a sewer commissioner and referred to their authority in terms of the purpose for which the enabling statutes were made
• The implementation of the socio-political based legislation of the government since Union in 1910 and in particular the coming to power of the National Party in 1948 required a magnificent infrastructure of rules, regulations and ordinances that would support and give effect to infamous legislation such as the Black Administration Act 38 of 1927, the Population Registration Act 30 of 1950, and the Group Areas Act 41 of 1950
• The Protection of Information Act 84 of 1982 made it a criminal offence punishable by a long term of imprisonment without the option of a fine for any public servant to disclose information obtained or acquired during the course of her work as a public servant
• Underscoring such draconian laws were hundreds of others Acts of Parliament ensuring the official protection and secrecy of the Executive
• The spectacular achievement of executive power achieved its zenith during the 1980s with the passage of security legislation such as the Internal Security Act 74 of 1982 and the consequential regulations in terms of which various states of emergencies were declared and individuals detained without due process and or the right to be heard
• Executive deference was given by certain of our judges

  As is clear in the case of Omar v Minister of Law & Order 1987 3 SA 859 (A) where Rabie CJ (for the majority), at 892A, in upholding a state of emergency regulation stated: This indicates that parliament contemplated that the need to ensure the safety of the public or to maintain public order might necessitate the taking of extraordinary measures which might make drastic inroads into the rights and privileges normally enjoyed by individuals
• It was this very doctrine of parliamentary sovereignty that conferred sufficient power on the part of administrative officials to limit the most basic of rights such as dignity, equality and freedom
• Under the apartheid system of government Parliament was sovereign which meant that the ruling party commanded Parliament, Parliament commanded the bureaucracy, and the bureaucrats commanded the people – resulting in a culture of authority
• Regulatory administration – Eingriffsverwaltung or a rule by law system


  As opposed to a rule of law system
• The powers of our courts to review the legality of administrative conduct presented a potential obstacle for the government
• The exercise of these powers of review were soon frustrated by ouster or 'privative' legislative provisions designed by the drafters of security legislation to exclude and diminish the effectiveness of the review power of the court irrespective of the 'standard of reasonableness, lawfulness or procedural fairness' thereof
• Clause 29(6) of the Internal Security Act 74 of 1982 provided as follows: No court of law shall have jurisdiction to pronounce on any action taken in terms of this section, or to order the release of any person detained in terms of the provisions of this section
• The decision as to what counted as lawful and fair was state-based executive-minded policy, the prelude of which started playing itself out in our country as early as the 1930s
• It fell to parliament and the executive; not the courts to decide matters politic

  As evidenced in the case of Sachs v Minister of Justice 1934 AD 11 where, at 37, Stratford JA stated that: Parliament may make any encroachment it chooses upon the life, liberty property of any individual subject to its sway, and … it is the function of the courts of law to enforce its [parliament's] will
• The only refuge and redress against such executive-minded legislation was by way of judicial review where the Supreme Court (as it was then known) would call upon its inherent jurisdiction to test delegated legislation, in other words, law made by an official or organ of state in accordance with powers delegated to it in terms of an Act of parliament
• Common-law principles the courts came to rely upon


  • Procedural fairness (natural justice)
  • Audi alteram partem (let the other side be heard)
  • Reasonableness
  • Doctrine of legitimate expectation
  • Requirement of bona fides (good faith)
  • Requirement of acting intra and not ultra vires (outside the range of power)
  • Requirement of nemo iudex in sua causa (nobody can be a judge in their own cause)
  • Requirement against acting male fide (in bad faith)
• The case of Administrator, Transvaal v Traub 1989 4 SA 731 (A) is accorded recognition for officially importing the doctrine of legitimate expectation into our law from English law
• Corbett CJ: 'Thus the person concerned may have a legitimate expectation that the decision by the public authority will be favourable, or at least that before an adverse decision is taken he will be given a fair hearing'
• The Constitution of the Republic of South Africa 200 of 1993 (the interim Constitution) set the stage for the adoption of the Constitution 108 of 1996 (the Constitution)
• The Bill of Rights of the Constitution making provision for a host of rights the enforcement of which would be nugatory if it was not for s 38 providing: Enforcement of Rights
• The culmination of administrative law provisions is to be found in the entrenchment of the right to just administrative action as evidenced in section 33, which provides as follows: 33 Just Administrative action
• The aforesaid administrative law provisions, which are given constitutional recognition, have transformed the landscape of administrative law in South Africa
• The culmination of administrative law provisions is to be found in the entrenchment of the right to just administrative action as evidenced in section 33 of the Constitution
• Section 33 of the Constitution


  Everyone has the right to administrative action that is lawful, reasonable and procedurally fair
• National legislation must be enacted to give effect to the rights in section 33(1) and (2) of the Constitution
• The Promotion of Access to Information Act 2 of 2000 (PAIA) was enacted to give effect to the provisions of section 32 of the Constitution (access to information)
• The Promotion of Administrative Justice Act 3 of 2000 (PAJA) was enacted to give effect to the non self-executing provision of section 33(1) of the Constitution
• Ackerman J: 'We have moved away from a past characterised by much which was arbitrary and unequal in the operation of the law to a present and future in a constitutional State where State action must be such that it is capable of being analysed and justified rationally'
• The principle of legality is implied within the terms of the interim Constitution
• The common-law principles that previously provided the grounds for judicial review of public power have been subsumed under the Constitution
• Bato Star Fishing v Minister of Environmental Affairs


  • There is only one system of law regulating administrative law, namely the Constitution
  • The power of the Court to review administrative action no longer flows directly from the common law but from PAJA and the Constitution itself
  • The grundnorm of administrative law is now to be found in the principles of our Constitution
  • The common law informs the provisions of PAJA and the Constitution, and derives its force from the latter
  • The extent to which the common law remains relevant to administrative review will have to be developed on a case-by-case basis as the Courts interpret and apply the provisions of PAJA and the Constitution
  • The provisions of section 6 of PAJA divulge a clear purpose to codify the grounds of judicial review of administrative action as defined in PAJA
  • In treating the decisions of administrative agencies with the appropriate respect, a Court is recognizing the proper role of the Executive within the Constitution