ADL

• These notes were compiled by Prof. R Henrico – 11 February 2024
• Three principles relevant to our democratic order play an essential role in administrative law: the supremacy of the Constitution of the Republic of South Africa (the Constitution); the rule of law; and requirements of accountability, responsiveness, and openness
• Supremacy of Parliament


  Previously, the legislative supremacy of Parliament which was heavily influenced by English Law, also referred to as the Westminster system of government
• Under Roman-Dutch law the courts were not permitted to 'adjudicate on matters of politie'
• Culture of justification


  A product of South Africa's history and is a direct result of the right to just administrative action in the Bill of Rights (BOR)
• Transformative constitutionalism


  Radically changed the scope and content of the principles of administrative law by requiring the state administration to justify any infringement of the fundamental rights and freedoms (including the right to just administrative action) and any other rights which individuals may enjoy
• The principles of administrative law and just administrative action are founded in the Constitution, and the Promotion of Administrative Justice Act 3 of 2000 (PAJA)
• Rule of law


  Premised upon: the absence of arbitrary power, equality before the law, and the general principles of the (unwritten) British Constitution, particularly those governing the liberties of the individual, are the result of judicial decisions
• Under the apartheid regime, the rule of law was somewhat of a weak restraint on Parliament, but a significant principle used for securing individual freedom and justice
• The rule of law empowers the court to act as an impartial watchdog over government, specifically its executive branch
• Klaaren: 'The judicial supervisory power should be used sparingly and, in a manner, facilitative of democracy. The primary argument underlying this conclusion is an institutional one. The judiciary is an institution with real limitations. It has vast power to say no but little power to say yes. It is institutionally equipped to listen and decide but not to command, supervise, order, devise and implement. Members of the executive are more competent managers than are judges. While there are times where pro-active and imperative judicial action is called for, such instances must be rare.'
• The case of Economic Freedom Fighters v Speaker of the National Assembly: Democratic Alliance v Speaker of the National Assembly confirms the importance of the rule of law and refers to the consequences of the abuse of state power
• State


  A particular country endowed with public authority, including the executive, legislature, judiciary, police etc.
• Executive


  • Formulating (or developing) policy and initiating legislation
  • Implementing policy and legislation
• Administrative action


  The implementation of policy and legislation by the administrative part of the executive (the public administrators)
• If policy is formulated outside a legislative framework, and driven by political considerations it will generally not constitute administrative action. However, if policy is formulated with reference to the implementation of legislation it may well constitute administrative action
• The constitutional responsibilities of developing policy and initiating legislation do not ordinarily constitute administrative action – this is the task of the executive branch of government
• Prior to our constitutional dispensation, 'administrative action' was generally a term employed referring to 'conduct of public administration', but the concept has taken on an expansive dimension to include more than mere 'public administration'
• The public or state administration has always been responsible for the implementation of legislation in the national, provincial and local spheres of government
• The administration derives its very existence and powers from legislation (notably the Constitution and enabling legislation) and must act within the limits of the Constitution and relevant enabling legislation
• The administration is independent of the judiciary which exercises control over it
• In implementing legislation, the public administration is involved in various fields such as trade, industry and education and in this way administrative law impacts upon most aspects of daily life
• The execution and performance of all the functions and duties of the public state administration are governed by principles of administrative law
• The exercise of public power by the state administration is subject to control by both the legislature and judiciary
• The administration is independent of the judiciary which exercises control over the former by ensuring it adheres to the requirements of administrative justice in terms of section 33 of the Constitution
• In administrative law, a court will only review (and therefore interfere with the power in question) if it is satisfied that the exercise of the power constitutes administrative action
• Whether or not something constitutes administrative action is not always readily ascertainable
• The reason for determining whether the conduct in question is administrative action and therefore capable of being judicially reviewed is due to the devolution of power of management given to different branches of government
• Once a decision is made (in terms of, for example a specific legislative or an empowering provision) or legislation is implemented in a manner or way that adversely affects the rights of a person or members of the public, the aforesaid is referred to as an exercise of a public power or a public function that constitutes administrative action under PAJA
• In instances where the decision or exercise of public power or public function is performed in a way that does not constitute administrative action since the nature of the power is constitutionally sourced or of an executive power, judicial review cannot take place under PAJA, but can take place in terms of the principle of legality
• Administrative law


  The area of public law which regulates administrative action, that is, the exercise of powers and performance of public functions by organs of state, institutions and functionaries so as to comply with the requirements of the right to just administrative action in terms of section 33 of the Constitution
• Administrative law has been given a specific attribute as noted in Pharmaceutical Manufacturers Association of SA: In Re Ex Parte President of the RSA, by Chaskalson P
• Chaskalson P: 'Administrative law occupies a special place in our jurisprudence. It is an incident of the separation of powers under which our courts regulate and control the exercise of public power by the other branches of government. It is built on constitutional principles which define the authority of each branch of government, their relationship and the boundaries between them.'
• The question of what renders the exercise of a power or function 'public' is something not easily answered
• To establish whether conduct constitutes administrative action under PAJA we will come to learn how to apply the methodology as set out in Minister of Defence and Military Veterans v Motau
• Bodies that exercise public powers or perform public functions do not simply refer to a public administrator falling within the definition of an organ of state (see section 239 of the Constitution), but any entity, private or public, the exercise of whose power or performance of a function affects the public
• The exercise of all public power, constitutional or administrative, is subject to judicial review as regulated by the Constitution
• The exercise of all public powers must conform to the prescripts of the Constitution and the principle of the rule of law which is a founding principle of the Constitution but more significantly from which we derive the principle of legality
• The Bill of Rights is the cornerstone of our democracy enshrining the rights of all people and affirming the democratic values of human dignity, equality, and freedom
• The state is obliged to respect, protect, promote, and fulfil the rights in the Bill of Rights which applies to all law, and binds the legislature, the executive, the judiciary, and all organs of state