ADL2601 - Concepts to know
1. Administrative action – KNOW PAJA (know the definition)
o Section 1 of PAJA defines “administrative action” as any decision taken, or any
failure to take a decision, by-
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
a natural or juristic person, other than an organ of state, when exercising a
public power or performing a public function in terms of an empowering
provision, which adversely affects the rights of any person and which has a
direct, external legal effect.
Example of NOT admin action: President signing legislation into effect
2. Organ of state (NB! KNOW the definition)
o Organ of state is defined in section 239 of the Constitution. (a) any department of
state or administration in the national, provincial or local sphere of government; or
any other functionary or institution that (i) exercises a power or performs a function
in terms of the Constitution or a provincial constitution; or (ii) exercises a public
power or performs a public function in terms of any legislation. A court or a judicial
officer is not included
3. General and specific admin-law (legal) relationships
o At least one of the legal subjects must be a person or body who exercises power
o position of power must be held by a person or body clothed with state authority,
and who is able to exercise that authority (power to prescribe, restrain, or allow
others to act in a certain way)
4. Rules of audi alterum partem
o opportunity to be heard
o informed of considerations which count against him or her
o Reasons must be given
5. Principle of legality (and case law)
o The lawfulness of state action; in other words, government by the law and under the
law
6. Delegation of power (rules etc.)
o General rule against delegation (famous maxim commit to memory NB!)
o Foster case + Shidiack v Union Government
7. Legitimate expectation
o Fairly new to our law
o Traub v Transvaal case law (doctors Baragwaneth hospital)
o Jenkins case (civil service benefits)
o Everitt case
8. Control v remedy
o Control = Restriction, means of regulating
o Remedy = relief, setting right, legal amends for the wrong
9. Exceptions to exhausting internal remedies first (go straight to court)
o If case has already been pre-judged by the administrator
o Decision made in bad faith, fraudulently, or illegally
o Aggrieved party has an option in some cases (the specific law says so)
10. Forms of judicial control
o Statutory appeal (review in terms of a statute)
o Judicial review (does NOT involve the merits of the case, mainly procedure)
o Interdict (urgent remedy, to stop something)
o Mandamus (urgent remedy, to do something)
o Declaratory order
o Defence in criminal procedure
11. Section 33 of the Constitution
o (1) lawful, reasonable, procedurally fair
o (2) Written reasons
o (3) legislation to put one and two into effect
12. “Just” administrative Action (Constitution and case law)
o Lawfulness (law giving authority)
o Act in a reasonable way
o Procedure must be fair (according to the law)
o Section 33 of the Constitution reads as follows:
Just administrative action
(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.
Overarching terms
intra vires/ultra vires
applying one’s mind to the matter
legality
13. “Lawful” administrative action (Constitution and case law)
14. “Reasonable” administrative action (Constitution and case law)
o Bato Star case (Judge O’Reagan)
nature of the decision
identity and expertise of the decision-maker
range of factors relevant to the decision
reasons given for the decision
nature of the competing interests involved
impact of the decision on the lives and well-being of those affected
15. “Procedurally fair” administrative action (Constitution and case law)
o Procedural fairness (provision n PAJA)
16. 3 forms of abuse of power
o Exercising power with an unauthorised or ulterior purpose (administrator uses his
or her power for a purpose other than that set out in the enabling statute)
o Exercising power using an unauthorised procedure (administrator usually uses an
unauthorised procedure when the proper and correct procedure is more difficult,
time-consuming and cumbersome. The administrator then circumvents this correct,
but difficult procedure by using a short cut)
o Exercising power using ulterior motives to defeat the purpose of the law (exercising
power in fraudem legis the administrator deliberately and intentionally evades the
provisions of the empowering statute.
17. Principle of proportionality
o Relates to the means or method used to achieve the purpose; whether the means
are proportional to the purpose. In short, is there an even balance between the
means used and the ends envisaged?
o Suitability
Administrator must choose only those means that are most appropriate for
achieving the desired end. There must be a rational connection between the
end and the means.
o Necessity
Administrator must take only such steps as are necessary if any prejudice to
an individual is involved. Administrator must choose the action that causes
least harm to those who will be affected by the measure.
o Weighing up the advantages and disadvantages
Weighing up the advantages and disadvantages, and considering the injury
to the general public or the individual. The method or means must not be
out of proportion to the advantages.
o Proportionality requires the achievement of an even balance.
18. Common law rules of natural justice (KNOW case law)
o Audi alterem partem – hear the other side
o Nemo iudex in sua causa - Judges must be impartial, and seen to be impartial
19. Procedural fairness (KNOW PAJA)
o Section 3(2)(b)
adequate notice of the nature and purpose of the proposed administrative
action
reasonable opportunity to make representations
clear statement of the administrative action
adequate notice of any right of review or internal appeal, where applicable
adequate notice of the right to request reasons in terms of section 5
20. Forms of internal control
control by superior/senior administrators or specially constituted bodies/
institutions
parliamentary control
control by public bodies and commissions, such as the public protector and the
auditor- general (Chapter 9)
Internal control is also less expensive, less cumbersome and less time-consuming
than judicial control
21. Straight to Judicial Control – general rule says NO
o Exceptions to the general rule:
the case has already been prejudged by the administrator
the decision has been made in bad faith (mala fide), fraudulently or illegally,
or has in effect not been made at all
the aggrieved party has an option whether to use the extrajudicial remedy
or to proceed direct to judicial review
the administrative authority has come to an unacceptable decision as a
result of an error of law
the administrative body concerned has agreed that judicial review
proceedings may start immediately
the administrative body concerned has no authority to rectify the particular
irregularity complained of
the internal remedy cannot provide the same protection as judicial review.
22. Different classes of administrative actions (judicial, legislative, purely admin)
o Judicial -
o Legislative -
o Purely admin –
23. Ultra vires
o Broad definition
o Narrow definition
24. Nemo iundex sua in causa
o common examples of bias are the following:
Presence of pecuniary/financial interest; and
Presence of personal interest.
A pecuniary (financial) interest
25. Limitation clause (s 36)
o limitation is reasonable and justifiable in an open and democratic society based on
human dignity, equality and freedom, taking into account all relevant factors,
including –
the nature of the right
the importance of the purpose of the limitation
the nature and extent of the limitation
the relation between the limitation and its purpose
less restrictive means to achieve the purpose
26. Ultra vires
o Qualifications of the administrator
o Geographical element
o Act in accordance with a specific time
o The objectives or purpose of the empowering provision taken into account
