STUDY GUIDE

Administrative Law (Part1)

LLB (Hons)
JAD3660

Item No:

Centre for Open, Distance and e-Learning

Materials Development and Instructional Design Department
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Acknowledgements
The Centre for Open, Distance and e-Learning Materials Development and Instructional Design
Department wishes to thank those below for their contribution to this study guide:

John Nakuta Author(s)

Prof. S. Amoo Content Editor(s)

G.Murangi Instructional Designer

 Administrative Law (Part1)

Contents
About this study guide 1
How this study guide is structured ................................................................................... 1

Course overview 3
Welcome to Administative Law JAD3660 ....................................................................... 3
Administrative Law JAD3660 —is this course for you? ................................................. 4
Exit Learning Outcomes ................................................................................................... 4
Time frame ....................................................................................................................... 5
Study skills ....................................................................................................................... 5
Need help? ........................................................................................................................ 6
Assignments...................................................................................................................... 7
Assessments ...................................................................................................................... 7

Getting around this study guide 8

Margin icons ..................................................................................................................... 8

Unit 1 9
Introduction to Administrative Law ................................................................................. 9
Introduction ............................................................................................................. 9
1. What is Administrative Law? .......................................................................... 10
Scenario 1 ......................................................................................................................... 11
Scenario 2 ......................................................................................................................... 12
1. Administrative law and constitutional law ............................................................ 15
2. The two sides of public power ............................................................................... 15
3. Administrative Justice ........................................................................................... 16
4. Public authority and functions ............................................................................... 16
2 The Scope and Purpose of Administrative Law ............................................. 17
3 Principles of administrative law ..................................................................... 18
4 Administrative law prior to 1990 ................................................................... 18
Unit summary ................................................................................................................. 20
References ...................................................................................................................... 20

Unit 2 21
The Right to Administrative Justice ............................................................................... 21
Introduction ....................................................................................................... 21
Upon completion of this unit you should be able to: ..................................... 21
1 The Namibian Constitution and Administrative Justice ................................ 23
2 .Constitutional Supremacy ................................................................................. 24
3 Rule of Law .................................................................................................... 24
4 Separation on Power....................................................................................... 25
 5 Who Must Ensure Administrative Justice? .................................... 26
6. The Right to Administrative Justice ................................................................. 27
6.1. Administrative bodies and Administrative Officials ............................................ 28
6.2 A relationship of authority ..................................................................................... 30
Scenario 1: ........................................................................................................................ 30
Scenario 2: ........................................................................................................................ 30
Complete the following table with reference to each of the scenario given above:
............................................................................................................................... 31
6.3.Restrained authority.................................................................................................... 32
Unit summary ................................................................................................................. 33
References................................................................................................................... 34

Unit 3 35
Sources of Administrative Law and Administrative Power ........................................... 35
Introduction ........................................................................................................... 35
1. Administrative Law and Administrative Power Distinguished .. 36
2. Administrative law and administrative authorities distinguished ..................... 37
3. Sources of Administrative Law ........................................................................ 38
3.1. The Constitution ....................................................................................... 38
3.2 Legislation ............................................................................................................. 40
3.3 .Case Law ................................................................................................................... 42
3.4 .Common Law ............................................................................................................ 43
3.5. African Customary Law ............................................................................................ 44
3.6 Administrative Practice .............................................................................................. 44
3.8.Estoppel ...................................................................................................................... 44
2nd School of thought ........................................................................................................ 46
3rd School of thought .................................................................................................. 46
This school of thought invokes the right reasonable administrative action to
determine whether or not to apply the doctrine of estoppel to particular situation.
Per Justice Boruchowitz: .............................................................................................. 46
3.8 Prerogative Powers ..................................................................................................... 47
Unit summary.............................................................................................................. 47
References................................................................................................................... 48

Unit 4 49
Types of Administrative Power and Classification of Administrative Acts .................. 49
Introduction ....................................................................................................... 49
1. Types of Administrative Power ........................................................................ 51
1.3 Discretionary and Mechanical Powers .................................................................. 54
1.4 Mandatory and Directory Provisions ..................................................................... 56
2 Classification of Administrative Activities .................................................... 57
 2.1 Legislative Administrative Activities .................................................................... 58
3 Administrative acts ............................................................................................ 60
Unit Summary................................................................................................................. 60
References ...................................................................................................................... 61

Unit 5 62
Administrative Action .................................................................................................... 62
Introduction ........................................................................................................... 62
1 .Administrative action in general ....................................................................... 64
2. The test for an ‘administrative action’ ............................................. 65
3 Distinguishing administrative action from other acts ................. 66
4.The legal force of administrative action ............................................................ 71
Prescribed material, Burns, I: pages ................................................................................. 71
Legislative administrative acts ......................................................................................... 72
Judicial/adjudicative administrative acts .......................................................................... 72
Administrative acts ........................................................................................................... 72
4.2 Termination of the legal force of administrative action ............................................. 72
Unit summary.............................................................................................................. 74
References................................................................................................................... 75

Unit 6 76
Extending the Principles of Administrative Law to Voluntary Associations ................. 76
Introduction ....................................................................................................... 76
1. The position of voluntary associations ........................................... 78
Scenario 2: ........................................................................................................................ 79
2 Widening the Accountability Net ....................................................... 81
.2.1 When? .................................................................................................................... 82
2.2 How? ...................................................................................................................... 83
3 Examples From Case Law....................................................................... 84
3.1 Compliance with ‘own’ law/rules .......................................................................... 84
3.2 The Duty to Act Fairly ........................................................................................... 85
3.3 The duty to act reasonably ..................................................................................... 86
Unit summary ................................................................................................................. 87
References ...................................................................................................................... 87

Unit 7 88
Government/Public Contracts......................................................................................... 88
Introduction ........................................................................................................... 88
1 Contracts entered into by public bodies ......................................... 90
2 The ‘Public Law Approach’ ........................................................................... 91
3 The Purely Contractual Approach ....................................................... 92
4 Which Approach is Preferable? ........................................................... 93
Unit summary.............................................................................................................. 95
References ...................................................................................................................... 96
 Administrative Law (Part1)

About this study guide

Administrative Law (Part1) JAD3660 has been produced by the Centre
for Open, Distance and e-Learning. All study guides produced by the
Centre for Open, Distance and e-Learning are structured in the same way,
as outlined below.

How this study guide is structured

The course overview
The course overview gives you a general introduction to the course.
Information contained in the course overview will help you determine:

▪ If the course is suitable for you.

▪ What you will already need to know.

▪ What you can expect from the course.

▪ How much time you will need to invest to complete the course.

The overview also provides guidance on:

▪ Study skills.

▪ Where to get help.

▪ Course assignments and assessments.

▪ Activity icons.

▪ Units.

We strongly recommend that you read the overview carefully before

starting your study.

The course content

The course is broken down into units. Each unit comprises:

▪ An introduction to the unit content.

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About this study guide Introduction to Administrative Law

▪ Unit outcomes.

▪ New terminology.

▪ Core content of the unit with a variety of learning activities.

▪ A unit summary.

▪ Assignments and/or assessments, as applicable.

▪ Answers to Assignment and/or assessment, as applicable

Resources
For those interested in learning more on this subject, we provide you with
a list of additional resources at the end of this study guide; these may be
books, articles or web sites.

Your comments
After completing Administrative Law (Part1) we would appreciate it if
you would take a few moments to give us your feedback on any aspect of
this course. Your feedback might include comments on:

▪ Course content and structure.

▪ Course reading materials and resources.

▪ Course assignments.

▪ Course assessments.

▪ Course duration.

▪ Course support (assigned tutors, technical help, etc.)

Your constructive feedback will help us to improve and enhance this

course.

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 Administrative Law (Part1)

Course overview

Welcome to Administative Law

JAD3660
Administrative law falls under the broad umbrella of public law. It
is concerned with the exercise of state power, and the impact of
governmental activities upon the citizen (including non-citizens). It
is a dynamic and exciting young legal discipline. In recent times
the role of government has expanded considerably.
In fact, nowadays, we can see that the state is extensively involved
in most areas of our lives. Someone once observed that
administrative law governs one’s lives from cradle to grave. This is
indeed the case considering the plethora of administrative decisions
taken by government officials which influences the lives of each of
us on a daily basis. Think for instances, about decisions relating to
the registrations (or not) of births, marriages or issuing of death
certificates. Similarly, the provision of education, the running and
administration of the public health system, the recognition of
traditional authorities, the running of prisons, the management of
elections, the registration of political parties, the allocation of
fishing quotas and mineral exploration licenses (EPLs), the
granting and administration of social grants, the registration of
companies, the awarding of public tenders, the granting or refusal
of refugee status, work permits, are but some of the many decisions
taken by governmental officials on a daily basis.
Administrative law deals primarily with the legal rules governing
the exercise of public power and the performance of a public duty
in the context of it serving as a means to empower and to regulate.
Topics include the nature, scope and purpose of administrative law;
the theoretical underpinnings of administrative law i.e. rule of law,
separation of power, constitutional supremacy, and the principle of
legality; the meaning of an administrative action; the requirements
for valid administrative action; the role of the courts in controlling
the exercise of public power; and remedies for invalid
administrative action. The course also looks at alternatives to
judicial review as other important ways of holding public power to
account.

This is a year module. To make the work manageable the learning

material is divided in two study guides, Part 1 and Part 2. This
study guide, Part 1, deals primarily with the theoretical

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Course overview Introduction to Administrative Law

underpinnings of the subject as a whole like the rule of law;

constitutional supremacy, the relevance of the separation of power
doctrine to administrative law, and values of an open, accountable
and transparent administration; the concept of an administrative
action. Part 2, will deal extensively with the requirements for a
valid administrative action.

Administrative Law (Part1)

JAD3660—is this course for you?
▪ Understand key important provisions of the Namibian Constitution
and a clear understanding of the Constitutional Law;
▪ Can read, analyse and extract the relevant information from the case
law and other sources;
▪ Have ability to communicate effectively in the medium of instruction..

Exit Learning Outcomes

The exit learning outcomes for this course are:

• Describe the development of administrative law in Namibia;

• Explain concepts and principles related to administrative

justice;
Exit Learning Outcomes
• Define, demarcate and enumerate on the purpose of
administrative law;

• Explain the meaning and content of the constitutional right to

administrative justice.

• Apply the requirements of lawfulness, reasonableness and

procedural fairness to a pattern of facts.

• Describe the development of administrative law in Namibia;

• Explain concepts and principles related to administrative

justice;

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 Administrative Law (Part1)

• Define, demarcate and enumerate on the purpose of

administrative law;

• Explain the meaning and content of the constitutional right to

administrative justice.

• Apply the requirements of lawfulness, reasonableness and

procedural fairness to a pattern of facts.

Time frame
guides covering the 1st and 2nd semesters respectively.

You are strongly advised to cover two (2) study units per month.

You are strongly advised to allocate at least two (2) hours per day self-
How long? study time to yourself to master this complex but exciting module.

Please see tutorial letter for instructions on the submission of

assignments.

Study skills
As an adult learner your approach to learning will be different to that
from your school days: you will choose what you want to study, you will
have professional and/or personal motivation for doing so and you will
most likely be fitting your study activities around other professional or
domestic responsibilities .

Essentially you will be taking control of your learning environment. As a

consequence, you will need to consider performance issues related to
time management, goal setting, stress management, etc. Perhaps you will

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Course overview Introduction to Administrative Law

also need to reacquaint yourself in areas such as essay planning, coping

with exams and using the web as a learning resource.

Your most significant considerations will be time and space i.e. the time
you dedicate to your learning and the environment in which you engage
in that learning.

We recommend that you take time now—before starting your self-

study—to familiarize yourself with these issues. There are a number of
excellent resources on the web. A few suggested links are:

▪ http://www.how-to-study.com/
The “How to study” web site is dedicated to study skills resources.
You will find links to study preparation (a list of nine essentials for a
good study place), taking notes, strategies for reading text books,
using reference sources, test anxiety.

▪ http://www.ucc.vt.edu/stdysk/stdyhlp.html
This is the web site of the Virginia Tech, Division of Student Affairs.
You will find links to time scheduling (including a “where does time
go?” link), a study skill checklist, basic concentration techniques,
control of the study environment, note taking, how to read essays for
analysis, memory skills (“remembering”).

▪ http://www.howtostudy.org/resources.php
Another “How to study” web site with useful links to time
management, efficient reading, questioning/listening/observing skills,
getting the most out of doing (“hands-on” learning), memory building,
tips for staying motivated, developing a learning plan.

The above links are our suggestions to start you on your way. At the time
of writing these web links were active. If you want to look for more go to
www.google.com and type “self-study basics”, “self-study tips”, “self-
study skills” or similar.

Need help?
Is there a course web site address?

What is the course instructor's name? Where can s/he be located (office
location and hours, telephone/fax number, e-mail address)?
Help

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 Administrative Law (Part1)

For routine enquiries please contact the Student Support Department at

+264 61 206 3416.

For further assistance you can go to your nearest Regional UNAM

Centre.

Assignments
Consult your assignment letter for more in formation on this ,

Assignments

Assessments
Course materials may have activities and/or self-assessment exercises to
check your own understanding of the material, but there are also tutor-
marked assignments/tests which you have to submit. Please see tutorial
letter for more details.
Assessments

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Getting around this study guide Introduction to Administrative Law

Getting around this study guide

Margin icons
While working through this study guide you will notice the frequent use
of margin icons. These icons serve to “signpost” a particular piece of text,
a new task or change in activity; they have been included to help you to
find your way around this study guide.

A complete icon set is shown below. We suggest that you familiarize

yourself with the icons and their meaning before starting your study.

Activity Additional Answers to Assessment

reading Assessments

Assignment Audio Case study Discussion

Exit Learning Feedback Group Activity Help

Outcomes

Prescribed Recommended
Note it!/Warning Outcomes Reading website

References Reflection Study skills Summary

Terminology Tip Video

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 Administrative Law (Part1)

Unit 1

Introduction to Administrative
Law
Introduction
It is worth repeating that governmental officials takes many decisions on
a daily basis. The multiplicity of state functions, once again, includes the
running and administration of various public services such as health care,
education, housing, social grants, immigration, taxation, correctional
service (prisons), the management of elections, the registration of
political parties, to mention but a few. Such powers and functions is the
preserve of administrative law. Differently phrased, administrative law is
the separate and dedicated body of law governing the exercise and control
of such public power and functions.

This study unit introduces the student to the study of administrative law.
To this end, it focusses on the nature, scope, purpose and principles of
underpinning administrative law. It will then moves on to take a
comparative look at Namibia’s pre-and post-colonial administrative law
regimes.

Upon completion of this unit you should be able to:

▪ describe what administrative law is;

▪ identify the areas in which administrative law operates;
▪ apply administrative law to everyday life situations;

Outcomes ▪ elaborate on the need and purpose of administrative law;

▪ contrast the pre- and post-colonial administrative law regimes of
Namibia.

Hoexter,C(2012) Administrative Law in South Africa, 2nd Edition.

Chapter 1 pp.1-13; pp.207-210.

Prescribed reading

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Unit 1 Introduction to Administrative Law

Quinot, G(Ed) et al (2015) Administrative Justice in South Africa, An

Introduction Chapter 1 pp.2-16.

Additional reading

Abuse of power: The improper use of authority.

Accountability Taking responsibility for what you did and being

able to give a satisfactory reason for it.

Terminology Public The organs and functionaries of the executive

administration: branch of the state that are concerned with the day-
to-day business of implementing law and
administering policy.

Public Power: The power vested in a person or institution as an

agent or instrument of the state.

Public Function: Functions that are traditionally reserved to the

state

Transparency: A lack of any hidden agendas with all information

being made available.

1. What is Administrative Law?

The concept of administrative law covers a wide area, thus one cannot
attach an exact definition to it. As you will see when studying this
module, administrative finds itself in every aspect of the legal system and
in our day to day way of life.

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 Administrative Law (Part1)

The following scenarios illustrate every-day life situations. It seeks

to show the presence of administrative law in our daily life.
Consider each scenario carefully and attempt to answer the given
Activity 1 questions

Scenario 1

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Unit 1 Introduction to Administrative Law

Scenario 2

Scenario 3
School denied food for leaking information
News - Namibia | 2013-10-04
by Hileni Nembwaya
OSHIKOTO deputy education regional director said they were
investigating the source of the media leak about Waapandula Primary
School pupils who have not been receiving food for more than a year.
The Namibian reported early last month that more than 100 pupils at the
school in Omuthiya, who are living with HIV, could not take their anti-
retroviral therapy medication because of hunger since the school had not
received any food from the National Schools Feeding Programme (NSFP).
The deputy director, Vilho Shipuata, told The Namibian yesterday that the
education ministry was fully aware of Waapandula's plight and that the
Oshikoto education directorate was busy investigating why Waapandula
informed the media about the shortage of food the school has been
experiencing.
“The Ministry of Education is aware that we have not delivered any food
items to Waapandula Primary School yet as we are still investigating why
the school management had to run to the media about the shortage of food
the school is experiencing,” said Shipuata.
He said he was disappointed by the Waapandula school management for
giving out very sensitive information about the plight of the school to the
media without approaching relevant authorities in the ministry.

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 Administrative Law (Part1)

Sources are however furious with the government for denying the pupils
access to the food just because their plight was leaked to the media. They
have described the ministry's actions as insensitive towards the plight of
the children whom they claim to be protecting.
Shipuata further said that all the schools in the region are experiencing
food shortages since the beginning of the second term and they should have
written letters to their food suppliers to make inquiries instead of running
to the media.
The Namibian reported about two weeks ago that more than 100 pupils
who are on the anti-retroviral treatment at Waapandula school were
struggling to take their medication because the school had allegedly run
out of food.
The school was established in 1994 with 486 pupils including 168 orphans
and vulnerable children.
Source: The Namibian

1. Name the parties involve in each of the picture?

2. Was a decision taken in each of the instances? Briefly Explain.
3. Was there public authority involved? Motivate your answer.
4. Where do think these powers were derived from? Motive your
answer.
5. What in your opinion was the public function performed in each
of the above instances?
6. What do all these scenarios have in common?

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Unit 1 Introduction to Administrative Law

1. You would have noticed that in each of the given scenarios there
are at least two parties involved. Ordinarily, one of the parties is
usually a government official. For example, the parties involved
in scenario 1 were the police officers and the arrested persons.
Feedback
2. A decision was taken in the given scenarios. For instance, in
scenario 3 the decision taken was to suspend the National Schools
Feeding Programme (NSFP) at the school in question.

3. The person who took the decision in each of the scenarios was a
government official (also called an organ of state). This person is
usually clothed with state authority. In the context of Namibia
these persons are called administrative officials or administrative
bodies. You will learn more about this in subsequent chapters. In
the given scenarios the police officers, the Minister of Home
Affairs and the Ministry of Education are the administrative
officials and administrative body respectively.

4. Generally, state officials do not have inherent powers. Their

decision making powers must be derived from an empowering
provision. For instance, the police officer derives his arresting
powers from the Police Act, the Minister from the Immigration
and Control Act, etc.

5. In scenario 1 it can be said that the public function concerns the

observance of law and order. In order to perform such a function
police officers exercised their power to arrest the persons
suspected of having committed a crime.

In scenario 2 the public function relates to mandate of the ministry

to manage and administer the national population register.

In scenario 3 the public function revolves around the

administration and implementation of government’s school
feeding programme.

6. Powers given to the government officials whether by law or policy

must be used for the purposes meant for. It may not be used for
any other purposes or arbitrarily. Government officials are thus
expected to justify their actions/decisions. This amounts to
minimise the abuse of power and to promote transparency and
accountability. Scenario 3 might be seen as an example of abuse
of power.

All the given scenarios deal with the kind of things administrative law
is concerned about. These scenario give you a sense of what
administrative is all about.

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 Administrative Law (Part1)

As noted above the concept of Administrative Law covers a wide area of

our daily lives, therefore one cannot attach an exact definition to what
constitutes administrative law. However scholars such as Quinot and
others have proposed a working definition for what constitutes
administrative law. They give the following working definition for what
is administrative law. In terms of their working definition :
“Administrative law is that part of constitutional law which both empower
those exercising public authority or performing public functions through
the law, and which hold accountable to rules of law all those who exercise
public power or performing public functions.” (Geo Quinot et al, p.3)

This working definition is adopted for this study guide. You are therefore
strongly advised to ensure that you understand and are to apply this
definition whenever relevant. You are not required to memorise this
definition. Make sure though that you understand it and are able to apply
Note it! it.

Several things can be derived from the given working definition. These
relates to the relationship between administrative law and public Law, as
well as the relationship between administrative law and constitutional law.
The following can be deduced from the given working definition:

1. Administrative law and constitutional law

There is an overlap between constitutional law and administrative law.
This overlap, as explained by Hoexter has a fundamental bearing on
administrative law.

Administrative law is properly part of constitutional law. However,

administrative law focuses only on one arm of the State, namely, the
Executive. In other words, the arm responsible for the running state
administration.

Make sure to acquaint yourself with the differences and commonalities

between constitutional law and administrative law?

You must also be able to describe the position and operation of the state
administration within a system of separation of powers.

Similarly, you must also be able to explain the overlaps between

constitutional law and administrative law.

2. The two sides of public power

Administrative law performs a dual function. On the one hand it
authorizes/empowers state officials to perfume certain task and or
functions. For example in scenario 1, we see that the police officer is
empowered by law to carry out arrests.

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Unit 1 Introduction to Administrative Law

On the other hand it also seeks to regulate, the powers exercised by state
officials by prescribing the procedures to be followed. These aspects are
often described as the (empowerment) and (accountability) elements of the
subject.

3. Administrative Justice
Administrative law has everything to do with administrative justice.
Article 18 of the Namibian Constitution guarantees to everyone the right
to administrative justice. Administrative justice is said to be broader than
administrative law.

Administrative law, as clarified by Quinot and other, narrowly focuses on

obtaining justice through the judicial system. Administrative justice, on the
other hand, expands the obtaining justice through other means such as
appeals, tribunals or the ombudsperson offices.

4. Public authority and functions

Administrative law is concerned with public authority/power and function.
There is no single test of universal application whether a public or function
is of a public nature. Generally, public powers and functions is generally
associated with conduct and activities that are ‘governmental’. However,
this is not the sole criteria. Other features include ‘a duty to act in the
public’s interest or in pursuance of a public duty rather than for private
purposes.

Other consideration include the source of power, whether it is exercised

consensually or coercively and its effect on the public. A mere interest in
the activity by the public is not a decisive factor though.

Over the past year the boundaries between what is regarded as public and
what is private has become blurred.

Actions of private entities rendering public

services.

Discussion Consider the following situation:

The City of Windhoek outsourced the collection of household refuse to

private company called, Garbage Gobblers. The Gargabe Gobblers truck
is busy loading your wheelie-bin one morning when the driver forgets to
put on the handbrake while taking a cell phone call. As a result, the truck
hits your vehicle gate, breaking it completely and damaging your in the
process.

Do you have an action for damages against the City of Windhoek or

against Garbage Gobblers or both of them in the alternative? If you do

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 Administrative Law (Part1)

have such recourse to law, do you find your action in pubic law (which is
likely to afford you greater scope to sue) or in the private law of contract
or delict? Does it make a difference which party you sue?

Source: Geo Quinot et al, 2015

5. Rule of law: You will recall from your study of constitutional law
module that one of the distinctive characteristic of
constitutionalism is the rule of law. The rule of law in its basic
form is that no one is above the law. In the context of
administrative law it means that the ADM cannot go beyond the
scope of their given powers, if they were to do that it would amount
to abuse of power.

Having said that, what then is the purpose of administrative law?

2 The Scope and Purpose of Administrative Law

The scope in influence of administrative into our daily life is quite wide.
That’s why administrative law has been described as that branch of public
law that governs our lives from cradle to grave. Administrative law, as
noted earlier, is regulating the activities and conduct of functionaries and
institutions that exercises public power or performs public functions.

Administrative law serves several purposes. Administrative law subjects

the executive to internal and external regulatory control. Such control
functions to, amongst others:
▪ holds the executive accountable
▪ minimises bureaucratic abuse of power
▪ ensures democratic control
▪ improves the quality of the administration
▪ inform the public
▪ legitimize administration action
▪ protects and promote human rights

1. Write short notes on each of the purposes of administrative law

listed above.
2. What are public powers and functions?
Activity 3. Define, in your own words, executive authority, public
administration, and the civil service and illustrate the correlation between
them.

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Unit 1 Introduction to Administrative Law

This is a self-study excercises. Your are strongly advise to attempt it.

Feedback

3 Principles of administrative law

Administrative law is based on the principle that government actions
must, strictly speaking, be legal and that citizens who are affected by
unlawful government acts must have effective remedies. A strong
administrative law system helps to maintain public confidence in
government authority.

The underlying principles of administrative law include the rule of law,

the prohibition of the abuse of power, access to justice, accountability and
transparency.

Activity Write short notes to explain the relevance and

significance of each of the following principles to administrative law.
• Rules of law
Activity • Abuse of power
• Access to justice
• Accountability
• Transparency.

This is a self-study excercise. Your are strongly advise to attempt it.

Feedback

4 Administrative law prior to 1990

Prior to independence judicial review was the only form control of
administrative power. Courts tested delegated legislation action and

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 Administrative Law (Part1)

administrative under the common law. This was made clear in the
Johannesburg Consolidated Investment case where the courts stated:

“Whenever a public body has a duty imposed by it by statute, and

disregard important provisions of the statute, or is guilty of gross
irregularity, or clear illegality in the performance of the duty, this Court
may be asked to review the proceedings complained of and set aside or
correct them. This is no special machinery created by the Legislature; it is
a right inherent in the Court….” – Johannesburg Consolidated Investment
Co Ltd v Johannesburg Town Council 1903 TS 111

The pre-independent era was characterised by what is known as

parliamentary sovereignty. Through this parliament could constrain
powers of courts. This happen in various ways, by for example, by
express legal provisions, conferring wide discretionary powers on ADMs,
or through ouster clauses. Section 9(3) of the Residence of Certain
Persons in South West Africa Act is an example of an ouster clause. This
section provided that:

“No court shall be competent to enquire into or pronounce upon the

validity of an Act of the Assembly.”

Similarly, section 4(3) of the Squatters Proclamation, Proclamation 21 of

1985 which has been declared unconstitutional by the Supreme Court in
2013 is another example of an ouster clause.

Activity Describe the state of administrative law before 1990. In

your answer, you must show how each of following related to
administrative then:

Activity i) Parliamentary sovereignty

ii) Ouster clauses
iii) Judge-made law
iv) The growth of discretionary authority
v) Deference/‘executive-mindedness’

This is a self-study excercise. Your are strongly advise to attempt it.

Feedback

19
Unit 1 Introduction to Administrative Law

Read and analyse the following cases to fully appreciate the administrative
law regime before independence:
i). Free Press of Namibia v Cabinet, Interim Gov. SWA 1987(1) 614
Case Study ii). Cabinet, Interim Gov. SWA v Bessinger 1989 (1) SA 618
iii). Cabinet, Interim Gov. SWA v Frank Chikane 1988 (86) 521 SCAD

Unit summary
In this unit you we looked at scenarios which fall within the ambit of
administrative law. With these scenarios and by asking some relevant
questions we tried to stimulate your thoughts about the applicability of
administrative law. From these questions we have worked out a definition
Summary of administrative law. We then elaborated on the scope, purpose and the
principles underlying administrative law.

We then flagged the main features of administrative law in Namibia before

independence.

In the next study unit we will be discuss some of the main influences of the
Namibian Constitution on administrative law.

References
Hoexter, C. (2012). Administrative in South Africa. Cape Town: Juta, 2nd
Edition.
Quinot, G (Ed) et al. (2015). Administrative Justice in South Africa: An
References Introduction. Cape Town: Oxford University Press Southern
Africa, 1st Edition.

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 Administrative Law (Part1)

Unit 2

The Right to Administrative

Justice

Introduction

The adoption of the Namibian Constitution revolutionised administrative

law in Namibia. The Constitution made a clear break from the past.
Administrative justice was entrenched as a fundamental human rights in
article 18. This article, read to together with several others can be said to
have transformed Namibia’s administrative law regime from a culture of
authority to one of justification. Those exercising a public function or
performing public powers are now required to act lawfully, fairly and
reasonably whenever they take administrative decisions. Non-compliance
with these dictates give the aggrieved person a right to seek redress from
a tribunal or the courts.

In this unit we will highlight the scope, purpose and content of the right
to administrative justice. We will then look at article 18 in broad terms.

Upon completion of this unit you should be able to:

▪ discuss the scope, purpose and content of the right to administrative
justice;
▪ describe how article 18 of the Constitution transformed Namibia’s
administrative law regime;
Outcomes ▪ identify the duty bearer of the right to administrative justice in a
hypothetical administrative law scenario;
▪ recognise the rights holder of the right to administrative justice in a
hypothetical administrative law scenario.

Hoexter,C(2012) Administrative Law in South Africa, Second

edition. Chapter 1 pp.13-29

Prescribed reading

21
Unit 2 The Right to Administrative Justice

Parker, C. 1991. “The ‘Administrative Justice’ provision of the

constitution of the Republic of Namibia: a constitutional protection of
judicial review and tribunal adjudication under administrative law”. The
Comparative and International Law Journal of Southern Africa, Vol. 24,
Additional Reading No. 1, pp. 88-104.

Mureinik, E. 1994. “A Bridge To Where? Introducing the Interim Bill of

Rights South African”, Journal on Human Rights, Vol. 31, pp. 31-48.

Arbitrary: Based on random choice or personal whim, rather

Terminology than any reason or system

Concerns how we interact as individuals when the

Administrative government, or those working on its behalf, act in
justice: ways that appear wrong, unfair or unjust.

Accountability: An obligation or willingness to accept

responsibility or to account for one's actions.

Authority: The power or right to give orders, make decisions,

and enforce obedience.

Entrenched: Firmly established and difficult or unlikely to

change.

The action of showing something to be right or

Justification: reasonable.

Separation of The division of government responsibilities into

power: distinct branches to limit any one branch from
exercising the core functions of another.

22
 Administrative Law (Part1)

Rule of Law: The restriction of the arbitrary exercise of power

by subordinating it to well-defined and established
laws.

1 The Namibian Constitution and Administrative Justice

In 1990, Namibia gained independence and adopted the Namibian
Constitution. The adoption of the Constitution was a significant shift
from the doctrine of parliamentary sovereignty to constitutional
democracy. The Constitution is enshrined as the supreme law of the land.
The Constitution also contains a Bill of Rights (Chapter 3). Article 18,
which guarantees the right to administrative justice is part Chapter 3.
Article 18 states:

“Administrative bodies and administrative officials shall act fairly and

reasonably and comply with the requirements imposed upon such bodies
and officials by common law and any relevant legislation, and persons
aggrieved by the exercise of such acts and decisions shall have the right
to seek redress before a competent Court or Tribunal.”

Administrative justice, as explained by the UK Administrative Institute

(UKAJI), is about how we interact as individuals when the government,
or those working on its behalf, act in ways that appear wrong, unfair or
unjust. It encompasses matters of everyday importance to all of us, such
as housing, education, health care, immigration, social security and
taxation.

Article 18 requires from those exercising state authority to always act

lawfully, fairly and reasonably. We will elaborate on each of these in
subsequent units. For now it is important to stress that article 18 prohibits
administrative officials or administrative bodies to exercise their powers
in an arbitrary manner.

Article 18, in the words of Etiene Mureinik, therefor serves as a bridge

from a culture of authority (which prevailed during colonial times) to the
culture of justification. In fact, this was confirmed in the case Kaulinge v
Minister of Health and Social Services in which Mainga J states:

“Administrative bodies and administrative officials who are capable of

making decisions affecting the citizens should always bear in mind that,
by the adoption of the Constitution of Namibia, we have been propelled
from a culture of authority to a culture of justification.”

This above statement serves to illustrate how administrative law have

changed under the constitutional dispensation after independence. It is
wide enough to prove that administrators have to act in favour of justice
and not in accordance with their whims and caprices and any conduct
which is not equitable or just is subject to judicial review.

Another point of importance is that article 18 also states that any person
affected by the decision of the administrator shall have the right to seek

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Unit 2 The Right to Administrative Justice

redress before a competent Court or Tribunal. This implies the

abandonment of ouster clauses. In the Shanika case (see Unit 1), we saw
that the Supreme Court declared sections 4 (1) and (3) of the Squatter
Proclamation 21 of 1985 unconstitutional because they ousted judicial
review.

Article 18 should not be read in isolation. It must be read with a hosts of

other articles in the Constitution.

2 .Constitutional Supremacy
Article 1(6) of the Namibian Constitution states

“This Constitution shall be the Supreme Law of Namibia”

This article gave birth to constitutional supremacy in Namibia. It thus

effectively with the doctrine of parliamentary sovereignty of the previous
dispensation. By virtue of this article any laws or conduct that is contrary
to the Constitution is invalid. It also means that any obligations imposed
by the Constitution must be fulfilled.

3 Rule of Law
The rule of law is listed as one the foundational values of the Republic of
Namibia. This is stated in article 1(1) of the Constitution.

“The Republic of Namibia is hereby established as a sovereign, secular,

democratic and unitary State founded upon the principles of democracy, the
rule of law and justice for all”.

Everyone is equal before the law and are entitled to equal protection of
the law. The rule of law in the administrative law context prohibits the
arbitrary exercise of power. All power exercised is subject to well-
defined and established laws. This applies to each and every citizen and
all organs of the State.

Activity Read the following cases. Make summaries on these

cases and highlight the rule of law issue as demonstrated in each of these
cases.

Activity i) Anhui Foreign Economic Construction v Minister of Works and

Transport (A21-2016)[2016] NAHCMD265 (9 September 2016).
ii) Minister of Justice v Magistrates Commission and Another (SA
17-2010) [2012] NASC 8 (21 June 2012).

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 Administrative Law (Part1)

This is a self-study excercise. You are strongly advised to attempt it.

Feedback

4 Separation on Power
Article 1(3) of the Constitution provides for the separation of power. It
states that the main organs of the State shall be the executive, the
legislature and the judiciary.The separation of powers doctrine recognises
the functional independence of the three (3) branches of the State and the
check and balances associated with the doctrine prevents the branches
from usurping each other’s powers. Legislative, executive and judicial
powers are thus vested in separate organs in terms of our Constitution

Figure 1: Separation of state authority in Namibia

The public administrative forms part of the executive branch. Therefore,

the mechanisms that safeguard normative objectives such as
accountability, and the balance of power are aimed at the executive as a
whole. Article 27(2) of the Constitution vests the executive authority of
the Republic of Namibia shall vest in the President and the Cabinet.

It is worth noting that the separate functions, as pointed out by Hoexter

and other scholars, have become increasingly blurred with the rise of the
modern, developed, administrative state and its enormous bureaucracy.
There is a general consensus that the separation of powers can never be
complete in any system and that it is not a ‘fixed or rigid constitutional
doctrine’.

25
Unit 2 The Right to Administrative Justice

Consider the nature and characteristics of the separation of power in

Namibia. Which other institutions are, or should, fall the separation of
power? Does the Bank of Namibia fall under the separation of power?
Activity Should it? Who holds the Bank of Namibia accountable? Also consider
the position of state-owned enterprises? Where would they fit into the
scheme of Figure 1 above? Finally, consider the position of pure private
entities which perform public functions on behalf of the state. Should
companies be accommodated in Figure 1 above? If so, where?

This is a self-study excercise. You are strongly advised to attempt it.

Feedback

5 Who Must Ensure Administrative Justice?

Article 5 of the Constitution clarifies/stipulates those who are bound by

the Namibian Bill of Rights (Chapter 3). In words, those who are
obligated to respect, protect and fulfil the obligations imposed by the
right entrenched in Chapter 3. Article 5 provides that:

“The fundamental rights and freedoms enshrined in this Chapter shall be

respected and upheld by the Executive, Legislature and Judiciary and all
organs of the Government and its agencies and, where applicable to
them, by all natural and legal persons in Namibia, and shall be
enforceable by the Courts in the manner hereinafter prescribed.”

As can be seen, this article imposes a duty on all branches of the State,
state-owned enterprises, including legal and natural persons (where
applicable) to respect and uphold all rights and freedoms guaranteed in
Chapter 3. Article 18, the right to administrative justice is included in the
list.

26
 Administrative Law (Part1)

Make summaries on how each of the following entities must respect and
uphold the right to administrative justice in their sphere of operation.
Give examples, and use case law, as far as possible to strengthen and
support argument.
Activity
i. The legislature
ii. The Executive
iii. The Judiciary
iv. Parastatals/ State owned enterprises
v. Legal persons and natural persons (where applicable)

Discuss this with some of your colleagues

Feedback

6. The Right to Administrative Justice

The right to administrative justice is guaranteed in article 18 of the
constitution. Article 18 states that:

“Administrative bodies and administrative officials shall act fairly and

reasonably and comply with the requirements imposed upon such bodies and
officials by common law and any relevant legislation, and persons aggrieved by
the exercise of such acts and decisions shall have the right to seek redress
before a competent Court or Tribunal.”

This article is the basis for the study and application of administrative in
Namibia.

The scope, purpose and content of administrative justice include:

▪ The achievement of a fair and honest administration;
▪ Serving the public interest;
▪ Accountability & openness exercise & performance of public
functions & duties;
▪ Evaluate/measure public decisions against constitutional values &
administrative accountability; and
▪ Curb abuse of power.

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Unit 2 The Right to Administrative Justice

As we analyse article 18, we see that it gives everyone the right to

administrative justice. This right, in short, requires that all administrative
decisions taken by administrative bodies or administrative officials must
at all times be fair, reasonable and lawful. Failure to comply with these
constitutional imperatives gives the aggrieved person i.e. the person (s)
affected by such a decision the right to seek redress before a competent
court or tribunal.

From this article several things are of significance. These include, what is
an administrative decisions (action), who or what is an administrative
body or administrative official, what constitute fairness, lawfulness and
reasonableness in the context of administrative justice? Also, who
qualifies as an aggrieved person for purposes of article 18?

These and other related questions are addressed and clarified in the
subsequent units of this Guide. For now, the next sub-sections briefly
shed some light to these concepts as a curtain-raiser in anticipation of
what is to come.

6.1. Administrative bodies and Administrative Officials

Article 93 of the Constitution defines an "official" as:

“any elected or appointed official or employee of any organ of the

central or local Government, any official of a para-statal enterprise
owned or managed or controlled by the State, or in which the State or the
Government has substantial interest, or any officer of the defence force,
the police force or the correctional service […].”

It is important to note that judges and other judicial officers are not
“officials” for purposes of article 18. This is expressly stated in
article 93 of the Constitution.

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 Administrative Law (Part1)

Activity Examine each of the scenarios given below and indicate

whether each of the functionaries or institution would qualify as
‘administrative bodies’ or ‘administrative officials’ (organs of state).
Give reasons for your answers:
Activity
(1) An Immigration Official from the Ministry of Home Affairs
confiscating the South African passport of a Namibian citizen and
ordering her to leave the country;
(2) A police officer re-arresting someone who escaped from police
custody;
(3) The Supreme Court issuing an interdict prohibiting the Windhoek
Municipality to evict people without court order;
(4) The Board of Directors of Telecom Namibia;
(5) A political party expelling one of its members;
(6) Unam, when the university expels a student after a disciplinary
hearing;
(7) The Namibia Football Association (NFA) it suspends its
president.
(8) The school board of a private school suspending a learner for two
weeks;
(9) A Traditional Authority dismissing a senior traditional councillor
from his position.

This is a self-study exercise. You are strongly advised to attempt it.

Refer to the case of Hikumwah v Nelumbu (A 15/2012) [2015]

NAHCMD 111 (13 May 2015) to know whether or not traditional
Feedback
authorities qualify as administrative bodies for purposes of article 18

An “official”, in simple terms, refers to the administrative

decision makers (ADMs) constituting the public administration.

Note it!

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Unit 2 The Right to Administrative Justice

6.2 A relationship of authority

The official referred to in article 18, is usually the person or entity in
authority. S/he/it is therefore the bearer of state authority. At the other
end of the relationship is a subordinate/lower-ranking individual(s) or
entity.

The administrative law relationship is thus a vertical relationship i.e. a

relationship of inequality

Consider each of the given scenarios below and complete the table at the
end.

Activity

Scenario 1:
Minister sent ‘drunk’ PPS principal home
A PRINCIPAL at a Windhoek primary school was sent home last week
after he allegedly turned up at work drunk for the second day in a row.
It is alleged that the headmaster has had a drinking problem for years.
Adolf Narib, principal of People’s Primary School (PPS) in Katutura in
Windhoek, was sent on special leave by the Minister of Education,
Abraham Iyambo, on March 2 after Iyambo got a phone call the previous
day that Narib “was acting as if drunk”.
Iyambo decided to pay a surprise visit to the school the next day.
According to Josia Udjombala, the Khomas Regional education director,
Narib admitted that he “was behaving strangely” but denied that he was
drunk.
Narib was apparently stopping cars at random in the road in front of the
school.
When Iyambo, accompanied by Police officers, asked Narib whether he
was under the influence during their conversation on March 2, the
principal again denied this.
Udjombala said Narib was then subjected to a breathalyser test which
confirmed that he was not as sober as he claimed he was. Narib
apparently claimed he had had “a few drinks” the previous evening.
Iyambo decided to send Narib home.
Source: DENVER KISTING, The Namibian, 07.03.11

Scenario 2:
The Permanent Secretary of Health has been given a medical opinions
that one of the senior members of the ministry has a medical condition
that makes her unfit to continue government service.

30
 Administrative Law (Part1)

However, the Permanent Secretary refuses to allow the official to go on

early retirement since his is not satisfied that, given the nature of the
official’s duties, a discharge on medical grounds is called for.

Scenario 3:
The Ministry of Regional, Local Government and Housing decides to
buys 4x4 pick-ups for all the recognised traditional leaders. The cars are
bought from company BEE Incorporated. The contract of sale is
concluded by Dingara, the official at the head of the ministry’s
procurement section i.e. the section dealing with the buying and selling of
goods.

Complete the following table with reference to each of the scenario given above:

Is there a The person Person in The decision

relationship of exercising subordinate taken.
authority power/authority position
present?
Yes/No

This is a self-study exercise. You are strongly advised to attempt it.

From these scenarios and activity you must able to explain/describe in

your own words:
Feedback
▪ what an administrative-law relationship is; and
▪ the main features of such a relationship.

31
Unit 2 The Right to Administrative Justice

Scenario 4:

The Ministry of Labour and Social Welfare recently discovered that

Activity about 20% of those people receiving disability and welfare pensions
are not actually entitled to those benefits. The Ministry feels that they
are insufficiently resourced to deal with the over 1 500 illegal
recipients individually. In order to ensure that the situation is ratified
and that the funds go to those who legally qualify for the benefits, the
Permanent Secretary of the Ministry issued the following directive

“All persons receiving disability and welfare pensions have six

months in which to submit proof that they are entitled to receive such
benefits and, if they do not do so within the period prescribed, their
benefits will be withdrawn”.

Is there an administrative-law relationships recognisable in the given

scenario?

If so, how does this relationship differ from that in scenarios 1, 2 and 3?

Is this relationship of an example of an individuals or general

administrative-law relationships? Explain briefly.

Examine how the legal rules in each of such relationships apply?

This is a self-study exercise. You are strongly advised to make summaries

of the issues raised in the given questions.

Feedback

6.3.Restrained authority
Is the subordinate person powerless in the authoritative relationship? The
answer is “no”. Persons in the subordinate position are never stripped of
their rights when entering into administrative-law relationships. Those in
authority are, similarly, not allowed to abuse their position of authority.

The person in the subordinate position in the administrative-law

relationships is protected by article 18, specifically.

The triad requirements of article 18 are:

32
 Administrative Law (Part1)

Lawfulness: the person in authority may only act in terms of an

empowering provision.

Fairness: this imposes procedural constraints on the decision taken

(administrative action);

Reasonableness: this relates to the substance of the decision or act.

These triad requirements, importantly, apply:

prospectively not retroactively

simultaneously and in the alternatively

Non-compliance with these requirements give the person affected by the

decision (the aggrieved person) a right to extra-judicial and/or judicial
remedies.

Note it!
The requirements of article 18 apply proactively and not after the
fact.
Also, article 18 is subject to limitations but is non-derogable! (You
will learn more about these concepts in the human rights module).

Unit summary
In this unit we highlighted one of the most important rights guaranteed in
the Namibian Constitution, namely, the right to administrative justice. We
also looked at other constitutional provisions which complement this right.
We have seen that the administrative justice clause brings into being an
unequal power relationship. This notwithstanding, the three requirements
Summary

33
Unit 2 The Right to Administrative Justice

for administrative justice seeks to curb the abuse of state authority by those
in position of authority.

References

Hoexter, C. (2012). Administrative in South Africa. Cape Town: Juta,

2nd Edition.

References Quinot, G (Ed) et al. (2015). Administrative Justice in South Africa: An

Introduction. Cape Town: Oxford University Press Southern Africa, 1st
Edition.

34
 Administrative Law (Part1)

Unit 3

Sources of Administrative Law

and Administrative Power
Introduction
The term “source” denotes the instrument that contains legal rules that
that govern a particular branch of the law, including administrative law.

A “source”, in the context of administrative law may also refer to the

source of administrative powers and duties. It is very important to
administrative law that when an administrative decision-maker (ADM)
takes a decision s/he/it must be backed by proof that s/he/it was
authorised to take that decision. This is so because administrative power
is not “self-generating”. It must be conferred by law and/or other form of
empowering provisions.

In this unit we will see that the ADM has no inherent powers. The ADM
must derive his/her/its power to decide from some source. This unit
accordingly highlights the sources of administrative law and
administrative power.

Upon completion of this unit you should be able to:

▪ distinguish between sources of administrative law and sources of

administrative power
▪ list the possible sources of administrative law and administrative
power;
Outcomes ▪ know when (and to which extent) each source applies in a given
circumstance;
▪ apply the applicable source(s) to factual/concrete situation.

Hoexter,C (2012) Administrative Law in South Africa, Second

edition. Chapter 1, pp 29-39

Prescribed reading

35
Unit 3 The Right to Administrative Justice

Quinot, G(Ed) et al (2015) Administrative Justice in South Africa, An

Introduction Chapter 1 pp.59-63.

Additional reading

Inherent Power that is not given but always existed

powers:

Ultra vires: Acting beyond the scope of one’s powers

Terminology
Intra vires: Acting within the scope of one’s powers

Prerogative: Exclusive privilege, usually associated with royal

powers

Administrative Legal Instrument that empowers that ADM

Power:

Enabling Defines the mandate of the ADM

Legislation:

1. Administrative Law and Administrative Power Distinguished

Administrative law, as was explained in Unit 1, refers to the body of legal

rules that regulate the incidences of public power or the exercise of public
functions. Administrative power, on the other hand, refers to the legal
authorisation to perform a particular public function. The following
example from the Local Authorities Act (No.23 of 1992) will be used to
make this difference clear.

Section 30(1) of the Local Authorities Act bestows various kind of power
to local authorities. Local authorities, for example, are authorised to:

36
 Administrative Law (Part1)

30(1) (u) determine […] the charges, fees and other moneys
payable in respect of any service, amenity or facility established and
provided by it […], including –

(ii) levy […] interest at a specified rate […] on unpaid debts in

respect of such charges, fees or other moneys.

From this provision it is clear that local authorities have the power or
capacity to impose and collect fees for their services, amenities or
facilities, including charging interests on unpaid debts. This provision is
an example of a source of administrative power.

Administrative law is very much relevant to the given example.

Whenever a local authority exercises its power or capacity to impose and
collect fees, their decisions in respect thereof would have to lawful,
reasonable and fair if such decisions qualify as administrative actions.
Administrative law thus implies that the ADM’s actions are limited to the
content of the authorising provision, thereby shaping the nature of the
source of administrative power.

2. Administrative law and administrative authorities distinguished

Administrative law and administrative authorities should not be confused.
Administrative law, once again, at the most basic level refers to the set of
legally binding rules. Administrative authorities, on the other hand, refers
to a number of public institutions.

It is important to note though that administrative law is not confined to

the law applicable to administrative authorities only. Similarly,
administrative authorities are not only regulated by administrative law
only. For example, administrative authorities often perform private acts
such as concluding contracts. In such cases, the private law contract will
apply.

Administrative law does not only binds administrative authorities.

Administrative law, depending on the circumstances can apply natural
persons, judicial persons, organs of states, including the judiciary.

From this concise summary it must be clear that administrative law does
not only apply to administrative authorities; also that administrative
authorities are not only subject to administrative law.

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Unit 3 The Right to Administrative Justice

3. Sources of Administrative Law

Administrative power is not self-generating. It is conferred by law or
other sources of administrative power. The various sources of
administrative authority are also effectively sources of restrained, since
their terms define the boundaries of what administrators can do.

The following sub-sections look at the various possible source of

administrative law in Namibia.

3.1. The Constitution

The Namibian Constitution was adopted as the supreme law of the

country on March 1990. Article 1(6) states that the Constitution shall be
the supreme law of Namibia.

The Constitution being the supreme law of Namibia means that all laws
and conduct must conform to the principles and values therein.

The Constitution plays an important role for administrative law in

Namibia. It contains an entrenched right to administrative justice. In
terms of this right administrative bodies and administrative officials are
required to act fairly, reasonably and in accordance with common law
and legislation (lawfully). Non-compliance with these requirements
entitles an aggrieved person with a corresponding right to seek redress.

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 Administrative Law (Part1)

Read the opinion piece, “A Constitutional Crisis?” by Toni Hancox and

Dianne Hubbard published in the Namibian of 22 July 2016. You can
access it at https://www.namibian.com.na/153494/archive-read/A-
Constitutional-Crisis
Activity
Answer the following questions with reference the article.

1. What, according to the authors, is the constitutional crisis?

2. What caused the crisis?

3. How, if at all, is this crisis relevant to administrative law?

Proceed now to read both the High Court and Supreme Court decisions in
the De Wilde v Minster of Home Affairs cases and answer the following
questions.

39
Unit 3 The Right to Administrative Justice

1. Discuss how the Constitution was used as a source of administrative

power in both courts.
2. How did the courts differently interpret article 4?
3. What is the significance of the Supreme Court’s decision in respect
of the Constitution being a source of administrative power?

This is a self-study exercise. You are strongly advised to make summaries

of the issues raised in the given questions.

Feedback

3.2 Legislation
Today almost all administrative power has a legislative source. Viewed
from this angle, legislation is the most important source of administrative
law.

We distinguish between original legislation and delegated (subordinate)

legislation.
i)Original Legislation

Original legislation is passed by parliament. It is usually known as

enabling or empowering legislation. This type or legislation creates the
organ of state and sets out the mandate of the ADM’s power e.g. to award
licenses, award visas, to make rules etc.

Examples:
▪ The Immigration Control Act (No. 7 of 1993)
▪ The Tender Board of Namibia Act (No. 16 of 1996).
▪ The Electoral Act (No. 5 of 2014)
▪ University of Namibia Act (No.18 of 1992)

Scan each of these Acts and list some examples of administrative

powers emanating from each.

Activity

40
 Administrative Law (Part1)

This is a self-study exercise. You are strongly advised to attempt it.

Feedback

ii) .Delegated legislation

Delegated legislation is also called “subordinate legislation”. Delegated

legislation must be enacted in terms of original legislation. Also,
delegated legislation:

is made by the ADM;

must be construed consistently with the original legislation under which

they are made; and such,

must not conflict with the provisions of the enabling Act.

Examples:
▪ Squatters Proclamations, AG 21 of 1985- still in force!;
▪ Regulations of the Research, Science and Technology Act (No. 23 of
2004);
▪ Regulations under the Tobacco Products Control Act, 2010;
▪ Municipal by-laws dealing with matters such as building regulations,
noise pollution, dumping, dogs.

All by-laws or regulations made by local authorities must be tabled in the

National Assembly for endorsement.

Note it!

Do a random research on the by-laws or regulations of your by local

authorities. List some examples of administrative powers emanating
from such by-laws or regulations.
Activity

This is a self-study exercise. You are strongly advised to attempt it.

Feedback

41
Unit 3 The Right to Administrative Justice

Read the case of Shaanika and Others v Windhoek City Police and
Others (SA 35-2010) [2013] NASC 9 (15 July 2013) and answer the
following questions.

Activity 1. What was the source of administrative power in this case?

2. Why was the particular source at issue?
3. This judgment places significant constitutional constraints on
delegated legislation. Briefly discuss this significance.

3.3 .Case Law

Caw law also known as judicial precedent has become part of our law
through the judicial system. It is relevant as it played and continues to
play an important role the evolution of administrative law.

It is the role of the judges to interpret the law and apply it to the facts laid
out in the case. As a result judgements through the notion of stare decisis

42
 Administrative Law (Part1)

are binding on other courts, thus obviously making it a crucial source of

administrative law.

Read Ombudsman v The Station Commander (HC-MD-CIV-MOT-GEN-

201700042) [2017] NAHCMD 366 (08 December 2017) and write a case
note.

Guide lines on how to write a case note available at:

Assignment
https://www.kent.ac.uk/library/subjects/lawlinks/skills-
hub/docs/Casenotes.pdf

It is very important that you read your cases and are always reading the
development of new cases. Administrative law in Namibia is not
stagnant, decision are being passed regularly, its best you stay up to date.

Tip

3.4 .Common Law

Common law, as you already know from your studies in Introduction to
Law is the unwritten law which mainly consist of Roman Dutch law.
Through Proclamation 21 of 1919 it became applicable in South West
Africa. Article 66 of the Constitution serves at the vehicle for the
continued existence and validity of the common law in Namibia.

The common law is still very relevant and plays an important role in
administrative Law. For instance, some Latin maxims such as the audi
alteram partem rule, ultra vires, acting in fraudem legis are some
concepts that are still recognised in present day administrative in
Namibia. These phrases will be discussed in detail in subsequent units.

With that been said, the following observation SA Constitutional Court

also holds true for the Namibian situation:

“I cannot accept this contention which treats the common law as a body
of law separate and distinct from the Constitution. There are not two
systems of law, each dealing with the same subject matter, each having
similar requirements, each operating in its own field with its own highest
court. There is only one system of law. It is shaped by the Constitution
which is the supreme law, and all law, including the common law, derives
its force from the Constitution and is subject to constitutional control.”-
Pharmaceutical Manufacturers case, SA ConCourt, par. 44.

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Unit 3 The Right to Administrative Justice

3.5. African Customary Law

African customary law, just like common law derives its validity from
article 66 of the Constitution. In the case of Hikumwah v Nelumbu as
discussed in Unit 2 the High Court held that traditional authorities are
indeed administrative bodies vested with a range of administrative
powers.

African customary law, like all other law, is subject to the Constitution.
In other words, the courts will not recognise a custom that conflicts with
either the Constitution or legislation.

There are several cases in which our superior courts expressly recognised
a particular African custom as a valid source of administrative power.

Refer to the case of Mbanderu Traditional Authority and Another v

Kahuure and Others (Case No 20-2007) [2008] NASC 7 (14 July 2008).

1. Read this case and discuss the customary rule which served as the
source of administrative power in this instance.
Assignment
2. Find other cases dealing with African customary law and make notes
on why the court found the relevant provision:

a) a valid source of administrative power;

b) an invalid source of administrative power.

3.6 Administrative Practice

Administrative practice as a source of administrative power is rather and
exception than a rule. This entails customs and practices which have been
practiced over a long period of time and have now become a norm within
an institution/ administration. Examples of administrative practices
include internal directives, circulars, policy guidelines. Such practices
will acquire legal force is there is proof of:

usus (meaning?)

communis opinion necessitates (i.e. ‘prevailing opinion’, ‘the current

view’ or ‘the general professional opinion’).

3.8.Estoppel
Consider the following:

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 Administrative Law (Part1)

“a person (B) is precluded (estopped) from denying the truth of a

representation previously made by him/her to another person (A), if the latter
(A), believing in the truth of the representation, acted thereon to his/her
prejudice” (Hoexter 2012:39).

This statement, in the context of administrative law raises several

questions? For instance, was B an administrative decision-maker? Was
there an empowering provision involve? What is the degree of harm
suffered by A? Should the ADM i.e. B be held to the representation s/he
made?

Let’s consider the following activity to see how these and other related
questions have been dealt with by our courts.

The Permanent Secretary (PS) of the Ministry of Works & Transport informed
company AFECG that the tender to upgrade the Hosea Kutako. International
Airport has been awarded to them.
It transpired though that the PS neither sought the approval of Treasury and that
Activity of the Minister of Finance before he informed the company AFEGC as required
by law.
Meanwhile, company AFEGC obtained a bank loan and recruited personnel and
experts for the upgrade job based on the PS’ letter.
The Government want the PS’ letter to be set aside. The company AFEGC, on
the other hand, wants to hold the Government to representation made to them
by the PS.
How do you think this dispute should be resolved? Why?

Can there be estoppel against the government or its agencies?

Administrators often makes representations on which affected parties rely

to their detriment. The issue at stake in the activity is thus whether the
official (Permanent Secretary) can acquire authority by the operation of
the doctrine of estoppel by representation.

What is at issue is whether, by application of the doctrine of estoppel,

administrators can acquire powers that has not been vested in them.
Importantly, a blanket application of the estoppel doctrine would
undermine the principle of administrative legality.

There are currently three (3) schools of thought in respect of the

application of the doctrine of estoppel in administrative law.

1st School of thought

In terms of this view, if the representation turned out to have been

unauthorised by law or is ultra vires the application of the doctrine of
estoppel would have the effect of ‘ratifying’ was not allowed to make
thus rendering them lawful. This would conflict with the basic principle

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Unit 3 The Right to Administrative Justice

that lawful authority is required for all actions and decisions of public
officials or bodies.

This school of thought accordingly holds that public officials cannot be

estopped since such officials cannot be allowed to arrogate powers to
them which they do not possess.

Read the Supreme Court judgment in President of Namibia v Anhui Foreign

Economic Construction Group Corporation Ltd (SA 59 - 2016)[2017] NASC (28
March 2017)
Explain why the court refused to apply the doctrine of estoppel.
Activity

The term ‘estoppel’ is not used in this case but its underlying principles
are at issue and applied in this case.

Note it!

2nd School of thought

This school of thought shows a preparedness to apply the doctrine of
estoppel against public authorities. In short, estoppel might operate in
instance:
▪ where a policy rather than a legal provision is at issue;
▪ where it would result in the waiving of an internal requirement rather
than a legal formality; and
▪ where the legal duty that has been violated was merely directory and
not mandatory.

Read Van Rooyen v University of Namibia 2004 NR 150

What was the reason for the court’s ruling in Mr Van Rooyen’s favour in
estopping the University?
Activity
3rd School of thought
This school of thought invokes the right reasonable
administrative action to determine whether or not to apply the
doctrine of estoppel to particular situation. Per Justice
Boruchowitz:

“the right reasonable administrative action, including proportionality, and

the culture of justification of which it formed part, would not countenance
immunity from estoppel where this it be would of minimal benefit to the
plaintiff and cause great hardship and injustice to the defendant.” – Eastern
Metropolitan Substructure v Peter Klein Investments Pty (Ltd) 2001 (4) SA
661(W), paras 35-8.

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 Administrative Law (Part1)

Read the Eastern Metropolitan Substructure v Peter Klein

Investments Pty (Ltd) 2001 (4) SA 661(W).

Activity Write a critical case note of this judgment.

3.8 Prerogative Powers

The Canadian Encyclopedia defined prerogative powers as "the residue
of discretionary or arbitrary authority which at any given time is legally
left in the hands of the Crown.” We inherited prerogative powers from
English law. Examples of prerogative powers include the Crown’s
inherent powers to: confer honours, pardon and reprieve offenders,
appoint and recognise diplomats. The equivalent of the Crown is the
President in our case.

The question is: did prerogative powers survived the enactment of the
Namibian Constitution. The answer was answered in the case of Becker v
Minister of Home Affairs and Immigration and Others (A 36-2011)
[2012] NAHC 51 (5 March 2012). Per Justice Smut:

“[…] the exercise of such prerogative powers did not survive the adoption the
Namibian Constitution.” – par. 11.

This, in simple terms, means that public authorities, including the

President, have only those powers enumerated in the Namibian
Constitution and legislation.

Read the Becker v Minister of Home Affairs and Immigration and Others
(A 36-2011) [2012] NAHC 51 (5 March 2012).

Write a critical case note of this judgment.

Activity

Unit summary

This unit in essence introduced you to the difference between

administrative law and administrative power. And, to the difference
between administrative law and administrative authorities. You then
learned about the primary sources of administrative law. Lastly, you
learned about sources of administrative power.
Summary

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Unit 3 The Right to Administrative Justice

References

Hoexter, C. (2012). Administrative in South Africa. Cape Town: Juta,

2nd Edition.

References Quinot, G (Ed) et al. (2015). Administrative Justice in South Africa: An

Introduction. Cape Town: Oxford University Press Southern Africa, 1st
Edition.

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 Administrative Law (Part1)

Unit 4

Types of Administrative Power

and Classification of
Administrative Acts
Introduction

In Unit 3 you learned about the sources of administrative law and sources
for administrative power. You know now that the source, as used in this
context, serves as the empowering provision which enables the
administrative decision-maker (ADM) to perform its public function or
exercise its public power. Unit 4 builds on these.

In the first part of this unit we look at the types of administrative powers.
Under this umbrella we distinguish between powers and duties. The
manner in which power may be imposed, namely expressly or impliedly,
the types of power i.e. mechanical or discretionary, as well as whether a
specific provision is mandatory or directory.

In the Unit 1 we mentioned that the public administration performs a

multitude of functions. These include the provision of education, health,
immigration, and other public services such as social grants, policing,
taxing, and controlling the economy. The doctrine of the separation of
powers provides a ready basis for classifying this wide range of
functions. The second part of the unit looks at how these various
administrative acts classification.

Upon completion of this unit you should be able to:

▪ distinguish the difference between a power and a duty;

▪ recognise the different types of administrative power;
▪ distinguish the difference between mandatory and directory
provisions;
Outcomes
▪ explain the difference between the different classes administrative
activities;
▪ apply your knowledge about powers, duties and the various forms of
administrative action practically.

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Unit 4 Types of Administrative Power and Classification of Administrative
Acts

Hoexter,C(2012) Administrative Law in South Africa, 2nd Edition.

Chapter 1 pp.43-56

Prescribed reading

Quinot, G(Ed) et al (2015) Administrative Justice in South Africa,An

Introduction Chapter 1 pp.12-3, 71, 93.

Open Learning Group Namibia Finance CC v Permanent Secretary of the

Additional reading Ministry of Finance and Others NAHC 1 (10 January 2006)

President of the Republic of South Africa and Others v South African

Rugby Football Union and Others (CCT16/98) [1999] ZACC 11; 2000
(1) SA 1; 1999 (10) BCLR 1059 (10 September 1999)

Greys Marine Hout Bay (Pty) Ltd and Others v Minister of Public Works
and Others (347/2004) [2005] ZASCA 43; [2005] 3 All SA 33 (SCA);
2005 (6) SA 313 (SCA) (13 May 2005)

Adjudicative: To study and settle a dispute or conflict.

Classification: The act or process of dividing things into groups
according to their type.
Terminology
Circumscribed: A power or freedom that is limited or restricted;
Directory: Providing advisory but not compulsory guidance.
Discretionary : Left to individual choice or judgment.
Expressly: Explicitly; clearly.
Implied: Not directly expressed.
Mandatory: Something that must be done, or is demanded by law.

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 Administrative Law (Part1)

1. Types of Administrative Power

Legislation, as noted by Hoexter, is by far the most dominant source of
administrative power. The interpretation of legislation is thus inextricably
linked with administrative law.

A basic distinction is drawn between powers and duties. Powers, further

more is separated into those that are express or implied, discretionary or
mechanical, mandatory or directory.

1.1 Power and Duties

Power is the ability to do something, and a duty is what is expected of

you by legal or moral obligation. Powers, as put by Hoexter enables
things to be done, whilst duties requires them to be done.

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Unit 4 Types of Administrative Power and Classification of Administrative
Acts

Activity

Look at the picture of the police woman

Is she:
a) an official for purposes of article 18? Substantiate your answer?
b) exercising a power? Why?
c) performing a duty? Why?; or

d) both? Explain why?

Look at the picture of the police woman again.

a). Are you able to recognise any legal relationship based on

authority in the picture? Substantiate your answer.
b) List some of the sources applicable in the scenario?

c) Explain how and why each of the three (3) classes of

administrative conduct may of relevance in the picture/scenario.
Elaborate on how the rules will apply in each case.

Section 8(1) of the Immigration Act 7 of 1993 is as example of a power

vested in an immigration officer. In terms of this section:

an immigration officer may require any person (at a port of entry)

… to produce documentary or other evidence relevant to his or

her claim to enter or be in Namibia or that his or her entry into or
his or her presence within Namibia will not be unlawful.

Similarly, an example of a duty is found in section 104 of the Electoral

Act No. 5 of 2014. This section requires a presiding officer at a polling

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 Administrative Law (Part1)

station, whether in or outside Namibia to, immediately after the close of

the poll in an election and in the presence of the certain persons:

i) take charge of all the ballot boxes and voting machines at a given
polling station; and

ii) to seal such ballot boxes and voting machines to allow for the counting
process to commence as prescribed in the Act.

1.2 Express and Implied Powers

Express powers are those powers directly and explicitly given to the
ADM in the Constitution, legislation or any other empowering provision.
Section 4(3) of the Police Act (No. 19 of 1990) is an example of an
express power granted to the Inspector-General. This section expressly
vest the Inspector-General with the power to promote, discharge or
reduce in rank any member in the police service.

Implied Powers, on the other hand, are those powers that can be
reasonably assumed through express powers. Implied Powers are
therefore ancillary to express powers, or either as a necessary or
reasonable consequence of express powers. Think here of making an
omelette. To make an omelette necessarily includes the power to break
the eggs.

How will you determine whether a certain power is granted by

implication?

Activity

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Unit 4 Types of Administrative Power and Classification of Administrative
Acts

Although you will not be expected to discuss this aspect, you must be
able to apply your knowledge and give a short motivation of any
application thereof.
Feedback

1.3 Discretionary and Mechanical Powers

i) Discretionary powers

In the Medical Association of Namibia case the Supreme Court stated

that:

“The conferment of discretionary power to be exercised by administrative

bodies or functionaries is unavoidable in a modern state.” – par. 63.

Discretionary powers are framed in permissive language. In others words,

the ADM is having a choice to do or not do something. For example,
section 3(3), of the Immigration Act states that the Minister may -

(a) remove an immigration officer from his or her office”

We distinction between narrow/circumscribed discretionary powers and

free/wide/broad/uncircumscribed discretionary powers. In the case of
circumscribed discretionary powers the enabling statute prescribes the
jurisdictional facts must be objectively present when the discretion is
exercised.

The legislature may leave it to the administrative organ to determine the

jurisdictional facts that form the basis of the exercising of the discretion.
This is the case in the so-called free discretion. The word ‘free’ in this
context is misleading though. It is important to realise that the holder of a
discretionary power never has a completely free hand (Hoexter: 47).
Firstly, to act with discretion means to act wisely and after due reflection;
so while discretion can be very wide, it is never completely ‘free’,
‘unfettered’, ‘absolute’ or ‘arbitrary’ (ibid). Secondly, the idea of
uncontrolled or unguided discretion is hopelessly at odds with modern
day constitutionalism (ibid).

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 Administrative Law (Part1)

Read the following scenario. Also, refer to sections 2, 16 and 24 of the

Liquor Act (Act No.6 of 1998 as amended) to answer the questions
pertaining to the scenario. Your answers must be based on the assumption
that you represent Mr. Sabalatani.
Activity
Mr. Sabalatani, a resident of the Khomasdal North Constituency applied
for a liquor licence to the Khomas Regional Liquor Licensing Committee
(KRLLC).
Advice Mr. Sabalatani on the following and give well substantiated
reasons for your answers.
1. Whether or not his situation falls within the scope of an administrative
law relationship and, if so, how administrative law seeks to regulate such
relationships.
2. What is the source of administrative power in this instance?
3. Clarity to him the distinction between a circumscribed/narrow
discretion and a free/broad discretion. Which type of discretionary power
is present in this instance?

This is a self-study exercise. You are strongly advised to do it.

Feedback

Read the Medical Association of Namibia and Others v The Minister of

Health (SA 80-2013) [2017] SA (9 February 2017) (3).
ii) Analyse section 31(3) of Medicines and Related Substances
Activity Control Act 13 of 2003.
Answer the following questions related to the given case and section
31(3) of the Act.
1. Which type of discretionary power is provided for in section
31(3) of the Act? Explain your answer in full.
2. Explain in detail why section 31(3) was challenged by the
aggrieved medical practitioners?
3. Analyse the court’s finding and its reasons in respect of the
validity of section 33.

This is a self-study exercise. You are strongly advised to do it.

Feedback

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Unit 4 Types of Administrative Power and Classification of Administrative
Acts

ii)Mechanical Powers

In the case of mechanical powers the ADM has little or no choice. In

other words, s/he/it has no discretion. For example, upon paying one’s
water and electricity bill the official must issue you with a proof of
payment (receipt).

Distinguish between mechanical and discretionary powers and

demonstrate why discretionary competencies are never granted without
limitation.
Activity

This is a self-study exercise. You are strongly advised to do it.

Feedback

1.4 Mandatory and Directory Provisions

Statutory rules, generally, must be observed. Non-compliance with
statutory provisions is usually stipulated in the applicable piece of
legislation. What is the situation, however, in cases where the legislation
is silent on non-compliance? This begs the question: will non-compliance
or less than perfect compliance lead to invalidity? The answer to this
question primarily relates to whether or not the court regard the
provisions as ‘mandatory’ or merely ‘directory’.

A mandatory provision is peremptory. It usually contains words such a

‘shall’ or ‘must’. It requires strict statutory compliance. Non-compliance
therewith results in nullity of the purported act or decision taken.

A directory statutory provision is regarded as permissive. It is usually

framed in words such as ‘may’. Partial, substantial or even non-
compliance therewith is acceptable.

It is worth stressing that the clear-cut distinction between mandatory and

directory provisions became blurred. For instance, in the Torbitt, a labour
law case,Acting Judge Hoff (as he was then) stated:

“The approach that a peremptory enactment must be obeyed exactly and

that it is sufficient if a directory enactment is obeyed or fulfilled

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 Administrative Law (Part1)

substantially has been described as rigid and inflexible and ‘that the
modern approach manifests a tendency to incline towards flexibility” –
per Torbitt case, per Hoff AJA, SCA (2017), par.30.

1. Distinguish between mandatory and directory provisions and illustrate

why this distinction is of importance.

Activity 2. Which factors have to be considered when determining whether a

provision is mandatory or directory?

This is a self-study exercise. You are strongly advised to do it.

Feedback

Once again you will not be asked about the theoretical distinction – you
must be able to motivate an application.

Note it!

2 Classification of Administrative Activities

We mentioned earlier that the doctrine of the separation of powers
provides a ready basis for classifying for the wide range of functions
public authorities are supposed to perform. The classes of administrative
conduct can explain with the following scheme.

Classes of administrative
conduct

Judicial administrative
Legislative Administrative acts
acts
administrative acts (Implementation of laws
(Administrative
(Rule-making) or policy)
adjudication)

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Unit 4 Types of Administrative Power and Classification of Administrative
Acts

2.1 Legislative Administrative Activities

These administrative actions are legislative in nature. It is the making and
issuing of rules by the ADM who is authorised to do so by original
legislation. Is a legislative act by an executive functionary. For example,
section 58(1) of the Immigration Control Act empowers the Minster of
Home Affairs to make regulations relating to the powers and duties of
immigration officers, and the fees which may be charged for visas.

Some of the characteristics of legislative administrative action include:

▪ They are administrative rules which are legislative in nature;
▪ They constitute delegated/subordinate legislation;
▪ Examples: regulations, proclamations, directives and orders, etc.
▪ They creates, terminate or vary general relationships;
▪ Rule(s) of general application apply;
▪ They must fall within the scope of the Constitution or the enabling
Act;
▪ They operate prospectively;
▪ Their repeal does not affect existing rights;
▪ It may not be vague;
▪ They remain in force indefinitely;
▪ It may be repealed or amended by its author (ADM not functus
officio).

Read the Supreme Court’s judgment in Mbanderu Traditional Authority

and Another v Kahuure and Others (Case No 20-2007) [2008] NASC 7
(14 July 2008).
Activity
Compare this judgement with that of the High Court’s in the same matter.

Critically comment on the divergent views (two courts) on whether rule-

making qualifies as administrative action. Which view do you support?
Why?

This is a self-study exercise. You are strongly advised to do it.

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 Administrative Law (Part1)

Feedback

2.2 Adjudicative (judicial) administrative acts

Adjudication, as noted by Hoexter, is becoming an increasingly prevalent

form of administrative activity. Administrative adjudication may involve
issue on specialised matters such as town planning, labour disputes,
competition law, civil aviation, immigration. For example, section 43 (1)
of the Immigration Control Act empowers the Minister of Home Affairs
to establish:

“so many tribunals to be known as immigration tribunals as the Minister

may deem desirable for the hearing and determination of applications for
authorization for the removal of persons from Namibia in terms of this
Act or any other law.”

Administrative bodies are able to adjudicate more informally, quickly,

cheaply and expertly compared to courts. Administrative adjudication
can be undertaken by specialist bodies i.e. administrative tribunals and by
a range of other public administrative bodies and individual
administrative officials.

Things to note about judicial administrative acts, include:

It’s also called “quasi-judicial” act;

ADMs interpret and apply legal rules to disputes in concrete situations;

It’s taken by specialist bodies i.e. administrative tribunals;

In Namibia, there’s currently few administrative bodies performing such

functions but administrative adjudication increasingly becoming
prevalent;

Administrative bodies adjudicate informally, quickly, cheaply & expertly;

Administrative tribunals i.e. town planning, labour disputes, immigration,

competition law, etc.

The law attaches specific consequences to judicial administrative acts, for

instance:

the tribunal (ADM) is functus officio (“having performed his/her office”);

matter is res iudicata ("a matter [already] judged“)

the ne bis idem principle ("not twice for the same [thing]”) applies.

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Unit 4 Types of Administrative Power and Classification of Administrative
Acts

3 Administrative acts
Administrative acts concern the implementation of policies or gives effect
to legislation and adjudicated decisions. It relates to the operational side
of the state also called ‘the state in motion’. Administrative acts include
every conceivable aspect of government activity. This may include the
granting of a license, stamping of a passport, promoting of an employee,
arresting a suspect, paying out social grants (Hoexter:55).

Administrative Acts are categorised on a functional basis, namely:

▪ Ministerial acts;
▪ Police acts;
▪ Investigate activities;
▪ Entrepreneurial activities;
▪ Contractual legal relations

The categories of administrative acts have little or no legal consequences.

Note it!

You have to be able to recognise the form of administrative action –

application is thus more important than reciting of facts!

Note it!

Unit Summary

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 Administrative Law (Part1)

In this study unit we discussed the type of administrative powers and the
classification of administrative functions.

We learned about the difference between a power and a duty. We also

saw that the administrative powers can be expressly or impliedly granted
to the ADM. We also learned about the difference between discretionary
and mechanical powers, as well as the distinction between mandatory and
directory provisions.

In the latter part of this study unit we learned that the administrative
activities performed by the ADM can be classified into legislative
administrative acts (rulemaking), adjudicative (judicial) administratve
acts and administrative acts. The law attaches different consequences to
the various type of adminstrative actions.

References

Burns, Y. 2013. Administrative Law. Durban, LexisNexis, 4th Edition.

Hoexter, C. (2012). Administrative in South Africa. Cape Town: Juta,

References 2nd Edition.

Quinot, G (Ed) et al. (2015). Administrative Justice in South Africa: An

Introduction. Cape Town: Oxford University Press Southern Africa, 1st
Edition.
.

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Unit 5 Administrative Action

Unit 5

Administrative Action
Introduction
In the previous units we celebrated the importance of article 18 of the
Constitution. We stressed that article 18, amongst others, seeks to prevent
the abuse of power and entrenches a culture of justification by those in
the public administration. Article 18, as important as it may be, does not
apply carte blanche fashion though. It other words, it does not apply to
each and every decision or act of the administrative decision-maker
(ADM). Differently phrased, the noble principles, values and
requirements of administrative law only applies if an administrative
action is involved. Article 18 is thus only triggered by the presence of an
administrative action.

What then is an administrative action? The Constitution does not answer

this question. Parliament, as yet, also did not pass legislation to fill this
constitution gap. Luckily, our courts came to the rescue in this regard.
The courts laid down a set of criteria which can used to determine
whether or not a decision or act amounts to an administrative action. If
the decision or act does not qualify as an administrative act according to
these criteria than article 18 does not apply.

The existence/ presence of an administrative action is therefore the

gateway (prerequisite) for the application of article 18. In this Unit we
accordingly try to understand the concept of an administrative action in
its broadest sense. We then pay attention to the criteria developed by the
courts to assist us in determining whether a decision or act qualifies as an
administrative act. The Unit concludes with a discussion of the legal
force of an administrative action. In other words, when an administrative
action become operative (takes effect) and when it terminates.

It is worth stressing that this Unit does not look at the criteria for a valid
administrative action. In other words, it does not look at issues of
lawfulness, fairness and reasonableness. These criteria only come into
play/focus once it has been established that an administrative action is
involve. The requirements for valid administrative action i.e. lawfulness,
fairness and reasonableness are addressed in Part 2 (Study Guide 2) for
the module.

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 Administrative Law (Part1)

Upon completion of this unit you should be able to:

▪ discuss the concept ‘administrative action’ in broad terms;

▪ interpret whether an act or decision amounts to an administrative
action;
Outcomes ▪ recognise the type of acts excluded from the concept administrative
action;
▪ evaluate whether given examples are administrative action;
▪ discuss the importance of the legal force of an administrative action.

Burns, Y. 2013. Administrative Law. Durban, LexisNexis, 4th Edition,

Chapters 7 & 8, pp. 147-230.
Prescribed reading
Hoexter,C.2012 Administrative Law in South Africa, Second edition.
Chapter 4 pp.171-193

Open Learning Group Namibia Finance CC v Permanent Secretary of

the Ministry of Finance and Others NAHC 1 (10 January 2006)

President of the Republic of South Africa and Others v South African

Rugby Football Union and Others (CCT16/98) [1999] ZACC 11; 2000
(1) SA 1; 1999 (10) BCLR 1059 (10 September 1999)

Greys Marine Hout Bay (Pty) Ltd and Others v Minister of Public Works
and Others (347/2004) [2005] ZASCA 43; [2005] 3 All SA 33 (SCA);
2005 (6) SA 313 (SCA) (13 May 2005)

Quinot, G(Ed) et al (2015) Administrative Justice in South Africa,

Chapter 1 pp.12-3, 71, 93.

Additional reading

63
Unit 5 Administrative Action

Function: An activity that is natural to or the purpose of a

person or thing.

Terminology Functionary: A person who has official duties, especially in a

government or political party.

Implementation: The process of putting a decision or plan into

effect.

Prerequisite: A thing that is required as a prior condition

for something else to happen or exist.

Exclude: To bar from participation, consideration, or

inclusion.

1 .Administrative action in general

Article 18 of the Constitution, as noted before, requires administrative
bodies or administrative officials to act fairly, reasonably and lawfully. It
is worth repeating though that the Constitution does not mention the
nature of the action in relation to which the administrative officials must
act fairly, reasonably and lawfully. Phrased differently, the Constitution
does not define the concept of ‘administrative action’.

It is important to determine exactly what administrative action is and

whether administrative action is involved in a particular situation. This is
so because the application of the right to administrative justice
guaranteed in article 18 of the Constitution is depended on whether an
administrative action has been performed by an administrative bodies or
administrative in exercising public power or performing a public
function.

In the South African case of Grey’s Marine Hout Bay v Minster of Public
Works the concept of administrative action was broadly defined as:

“[…] the conduct of the bureaucracy (whoever the bureaucratic

functionary might be) in carrying out the daily functions of the State,
which necessarily involves the application of policy, usually after its
translation into law, with direct and immediate consequences for
individuals or groups of individuals.” – per Grey’s Marine Hout Bay
2005(6) SA 313 (SCA), par. 24.

Don’t be misled by this definition though. A cursory reading of it creates

the idea that all decisions taken by an organ of state or someone
exercising a public power or performing a public function constitutes an

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administrative action. This is not the case though. Not all actions
(sometimes called decisions) performed or taken by an administrative
bodies or administrative officials necessarily amounts to an
administrative action. The focus for making such a determination is on
the ‘function’ performed and not the ‘functionary’. This was aptly
clarified by the South African Constitutional Court (ConCourt) in the
SARFU case:

“[…] the adjective ‘administrative’ [in administrative action] and not

‘executive’ is used to qualify action. This suggests that the test for
determining whether conduct constitutes administrative action is not the
question whether the action concerned is performed by a member of the
executive arm of government.

What matters is not so much the functionary as the function. The question
is whether the task itself is administrative or not. It may well be, as
contemplated that some acts of a legislature may constitute
administrative action. Similarly, judicial officers may, from time to time,
carry out administrative tasks.

The focus of the enquiry as to whether conduct is administrative action is

not on the arm of government to which the relevant actor belongs, but on
the nature of the power he or she is exercising” – President of South
Africa & Other v South African Rugby Football Union & Other
(CCT16/99) [1998] ZACC 11, SARFU paras 141 -143.

The same approach has been adopted by the Namibian Superior Courts to
determine whether or not an act or decision qualifies as an ‘administrative
act’.

2. The test for an ‘administrative action’

In the Open Learning Group of Namibia (OLGNF) case the High Court
introduced a ‘test’, similar to that as developed by the SA ConCourt, to
determine whether or not a decision amounts to an ‘administrative act’.
The Court quoted with approval the following criteria from South African
jurisprudence:

“[…] whether or not conduct is administrative action depends on the

nature of the power being exercised, the source of the power, the subject
– matter, whether it involves the exercise of a public duty and how closely
related it is to the implementation of legislation.”- Open Learning Group
Namibia Finance Cc v Permanent Secretary of the Ministry of Finance &
3 Others CASE NO.: (P) A 90/2005, par. 111.

This test, as it were, was subsequently applied in numerous other cases to

determine whether or not article 18 applies to a particular situation.

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What is the meaning of each of the following concepts as used in the

Activity context of determining whether the exercise of the power constitutes
administrative action:
▪ Nature of the power
▪ The source of the power
▪ The subject – matter
▪ Does it (decision) involves the exercise of a public duty?
▪ How closely related is it (decision) to the implementation of
legislation?

This is a self-study excercise. You are strongly advised to attempt it.

Feedback

It’s worth repeating though that not all decisions taken by an

administrative body or administrative official amounts to administrative
action. This, once again, was as aptly described in the Grey’s Marine
Hout Bay case. The same legal position is followed in Namibia.
Importantly,

“[The] [f]eatures of administrative action (conduct of ‘an administrative

nature’) […] are that it does not extend to the exercise of legislative
powers by deliberative elected legislative bodies, nor to the ordinary
exercise of judicial powers, nor to the formulation of policy or the
initiation of legislation by the executive, nor to the exercise of original
powers conferred upon the President as head of state.” – Grey Marine
Hout Bay, par.24.

3 Distinguishing administrative action from other acts

The Constitution, as noted earlier, does not define ‘administrative action’.

Also, Namibia, as yet, unlike other jurisdiction such as South Africa and
Zimbabwe has no statutory definition of what constitute an

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‘administrative action’. The onus accordingly fell on the courts to fence

off action that is associated with the political process and to distinguish
administrative action from legislative, executive and judicial action
(Hoexter: 175).

Such a distinction is important because article 18 of the Constitution is

not concerned with every act of administration performed by an
administrative body of administrative official (organ of state). It is
designed to control the conduct of the public administration when it
performs an act of public administration i.e. when it exercises public
power.

How are administrative and executive action (policy decisions)

Activity distinguished?

How is administrative and legislative action distinguished?

How is administrative and judicial action distinguished?

What is the approach to procurement and licensing decisions?

This is a self-study excercise. You are strongly advised to

attempt it.

Feedback

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Unit 5 Administrative Action

Spot the difference!

Activity
Consider the two decisions of the Presidents in the newspaper articles
given below.

Explain whether the decision in each case amounts to an administrative

action.

What, if at all, is the difference between the two types of

actions/decisions of the President in the given scenarios? Of what
significance is this to administrative law?

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This is a self-study exercise. You are strongly advised to attempt it.

Feedback

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Unit 5 Administrative Action

Read the following cases (High Court and Supreme Court) and
answer the question that follow:
i) Former Members of the Rössing Pension Fund v
Activity Rössing Pension Fund & Other (A 234/2014) [2016]
NAHCMD 155 (1 June 2016); and
ii) Rössing Uranium v Former Members of the Rössing
Pension Fund (SA 30 and 32 -2016 )[2017] NASC (30
June 2017).

What was the decision taken in this matter? Why did the two courts
differ on whether or not the decision taken amounted to an
administrative action? Which judgment is more preferable in your
opinion? Why?

Read both the High Court and Supreme Court decision in Makando v
Disciplinary Committee for Legal Practitioners and Others (SA98/2011)
[2016] NASC 26 (6 October 2016)

Assignment Why did the High Court decide that the decision was not administrative
action?

Why did the Supreme Court find that the decision taken by the
Disciplinary Board amounted to an administrative action?

Which of the two decisions, in your view, is preferable? Substantiate your

answer.
Read the following cases (High Court and Supreme Court) and
answer the question that follow:
UPDATE: Rehoboth Town Council members suspended
Activity iii) McLaren NO v The Municipal Council of Windhoek
15 Mar 2018 (A 110-2009) [2016] NAHCMD 161 (8 June 2016);
18:30pm
and

iv) McLaren NO and 3 Others v The Municipal Council

of Windhoek and 2 Others. SA 33- 2016. 17 January
2018.

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What was the decision taken in this matter? Was the

decision taken an administrative act? What was the views
of the courts in this regard? Why?

https://www.lelamobile.com/content/73500/UPDATE-
Rehoboth-Town-Council-members-suspended/

Read the article on the suspension of the Rehoboth Town Council, and
answer the following questions.

Is there an administrative law relationship present in the scenario?

If so, is it an individual or general administrative law relationship? How

will the rules apply in relationship/situation?

Who is the person in authority?

Is the functionary exercising a public power or performing a public

function? Motivate your answer.

Does this action constitute an administrative action? Apply the OLGN

check list to substantiate your answer.

4. The legal force of administrative action1

Prescribed material, Burns, I: pages
The legal force of administrative action refers to the effect of such action
in law. This relates to the moment the administrative action takes effect,

1
This section is wholly extracted from the UNISA Study Guide

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in other word becomes operative or comes into force; and the point when
the legal force of administrative action is terminated.

5.4.1 When does administrative action take effect?

It is often important to determine exactly when administrative action

takes effect or becomes operative. This is necessary for various reasons.
Not only for the sake of obedience (Baxter 1984:367) but also in order to
compute expiry dates “for the lodging of appeals, objections, applications
for review, and actions for damages” (Baxter 1984:367).

The question posed above is answered with reference to the three classes
of administrative acts we discussed in the previous unit. As you know we
distinguish between three (3) classes of administrative action. The
operational effect of the administrative action are as follows in respect of
each the different classes of administrative acts

Legislative administrative acts

Legislative administrative acts affect an individual as soon as the
regulation or proclamation has been promulgated and/or the stated date of
commencement arrives.

Judicial/adjudicative administrative acts

Judicial/adjudicative administrative acts usually take effect as soon as the
particular judicial institution – the tribunal or board – gives its ruling or
delivers its judgment, unless the statute provides for a period in which an
appeal may be lodged.

Administrative acts
Administrative acts will take effect upon the decision becoming known,
either by publication or announcement (in an official publication such as
the Government Gazette) or by individual notification (e.g. by letter,
electronic mail).

4.2 Termination of the legal force of administrative action

The legal force of administrative action is ended by repeal/revocation,
amendment, lapse of time, withdrawal of one of the subjects to the
relationship, or by court order.

When the ADM cannot amend, repeal/revoke or vary its decision, it is

said to be functus officio (roughly translated it means “having completed
the task/duty; no longer functioning”). In other words, the matter has
been finally dealt with and the administrator/organ of state is no longer
able to change his or her or its mind and revoke, withdraw or revisit the
decision. In short, the organ of state has “discharged his or her or its
official function” and he or she or it cannot re-examine or change the
decision afterwards.

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We must therefore establish when – at what moment – the organ of state

will be functus officio. To answer this question we again have to
distinguish between the three classes of administrative acts.

i) Legislative administrative acts

Legislative administrative acts may be repealed/revoked or amended at

any time. The power to repeal or amend legislative administrative acts
generally relates only to the future.

The repeal may not have retrospective effect (i.e. apply to the past).

When an individual has acquired rights as a result of the legislative act,

the repeal/revocation or amendment does not affect these acquired rights.
Therefore, although the administrator, the legislative body, can always
repeal legislative action, s/he/it cannot make it applicable retrospectively
once rights have been acquired.

ii) Judicial/adjudicative administrative acts

The administrative tribunal, such as the refugee appeal board, is functus

officio once it has made its ruling, and it cannot vary or revoke the
decision.

Judicial administrative acts have the force of res iudicata and may
consequently only be altered, rescinded or upheld by a higher judicial
body – usually the High Court.

iii) Administrative acts

We have to draw a distinction between valid and invalid action.

Invalid administrative action

Administrative action can be invalid for various reasons. In the next study
units we will discuss the various requirements for valid administrative
action. If any of these requirements have not been met, the administrative
action is said to be invalid.

Any invalid administrative acts (i.e. invalid decision) may be altered or

withdrawn by the ADM. After all, the ADM is rectifying action which
was defective in the first place. However, should the affected person have
questioned or challenged the validity of the administrative act before a
court or a higher domestic tribunal, or if the individual has acquired rights
and privileges as a result of such invalid administrative act, the act cannot
be altered by the authority.

Remember that the decision has individual effect, in other

words, it will not affect anyone except someone “targeted” by
the decision.
Note it!

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Valid administrative action

We have to distinguish between valid onerous/burdensome, beneficial

and status affecting administrative action.

Valid onerous/burdensome administrative acts may be altered by the

ADM. Onerous/burdensome administrative acts place a duty on the
individual, or prohibit an individual from doing something or refuse to
grant him or her something such as a licence.

For example, the individual applies for the grant of a licence and the
application for a licence is refused. If the official decides that the
decision, though valid, may be a bit harsh, or if policy changes, and so
on, the decision may be changed at any stage. The reason for this rule is
that the administration must be given an opportunity of correcting its own
mistakes.

Valid beneficial administrative acts may be altered by the authority only

where the power to do so has been conferred expressly or by necessary
implication. For example, if a licence has been issued, it cannot simply be
revoked by the licensing officer.

Where administrative acts affect the status of individuals, the authority

may not rescind or withdraw this decision unless the revocation is
authorised expressly or by necessary implication. The ADM who takes a
decision relating to status is functus officio after s/he has made the
decision. The best-known example of this type of administrative action is
an adoption order.

Unit summary

In this unit you learned that article 18 does not apply to each and every
decision taken by the ADM. Article 18 is triggered by the existence of an
administrative action. We learned that Namibia, as yet, does not have a
constitutional or statutory definition of an administrative action. To fill
this gap our courts laid down certain criteria to determine whether an act
Summary
or decision amounts to an administrative action. You have also learned
when an administrative action becomes operative/comes into force and
when its legal force may be terminated

The last two chapters of Part 1 will look at the position of voluntary
associations and administrative agreements in the Namibian
administrative law regime. These units serve as an extension of the
discussion on ‘administrative action’.

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References

Burns, Y. 2013. Administrative Law . Durban, LexisNexis, 4th Edition.

Hoexter, C. (2012). Administrative in South Africa . Cape Town: Juta,
2nd Edition.
References
Quinot, G (Ed) et al. (2015). Administrative Justice in South Africa: An
Introduction. Cape Town: Oxford University Press Southern
Africa, 1st Edition.

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Associations

Unit 6

Extending the Principles of

Administrative Law to Voluntary
Associations
Introduction

This study unit is essentially a continuation of the question: ‘what

constitutes an administrative action’ addressed in the previous unit. It
specifically looks at the position of voluntary associations and/or non-
statutory bodies in the Namibian administrative regime.

To this end, the question this study unit seeks to answer is whether or not
voluntary associations and/or non-statutory bodies have an obligation to
observe the values and principles of administrative justice. This query is
very necessary given the fact that such bodies are not created by statute
and as such do not exercise state authority.

Examples of voluntary associations and/or non-statutory bodies include

sports clubs, churches, political parties, private schools, trade unions and
the like. Generally, the relationship between these associations and their
members are governed by private law. However, in certain circumstances
specific aspects of administrative law are extended to such associations
and/or bodies.

This study unit discussed the instances when, why and how the principles
of administrative law are extended to voluntary associations and/or non-
statutory bodies. In this study unit you will see that such associations
and/or bodies are not above the law. They cannot just act against their
members as they wish. You will see that the noble requirements of
lawfulness, fairness and reasonableness equally apply to such
associations and/or bodies without the need to invoke article 18. With
this we see that ‘all roads, indeed, lead to the proverbial Rome’!

Upon completion of this unit you should be able to:

explain the position of voluntary association in the Namibian

administrative law regime;

Outcomes

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discuss when, why and how courts extent administrative law principles
to voluntary associations;

enquire into the lawfulness, fairness and reasonableness of a decision

taken by a voluntary association;

critique the court’s interpretation and understanding of the lawfulness,

fairness and reasonableness of a decision taken by a voluntary
association.

Hoexter,C(2012) Administrative Law in South Africa, Chapter 4, pp.

185-193; 207-218.

Disciplinary Committee For Legal Practitioners v Slysken Sikiso

Prescribed reading Makando & Another Case No.: A 370/2008;

Oppermann v President of the Professional Hunting Association of

Namibia 2000 NR 238;

Buckhard Karl August Oppermann v The President Of The

Professional Hunting Association of Namibia Case No.: SA 4/2000

Makando v Disciplinary Committee for Legal Practitioners and Others

(SA 98/2011) [2016] NASC 26 (6 October 2016);

National Union of Namibian Workers v Naholo (A16/06, A 16/06) [2006]

NAHC 9; (2008) 29 ILJ 1809 (NM) (7 April 2006)

Amupanda v SWAPO Party of Namibia & Others (A 215/2015) [2016]

NAHCMD 126 (22 April 2016)

New African Methodist Episcopal Church in the Republic of Namibia v

Kooper (A 293/2013) [2015] NAHCMD 105 (29 April 2015)

Nowases v Evangelical Lutheran Church (HC-MD-CIV-MOT-GEN-

2016-00221) [2016] NAHCMD 231 (9 August 2016)

Shixameni & Others v Congress of Democrats & Others (A229/2007)

[2008]NAHC 76(21 July 2008);

Aggrieved: feeling resentment at having been unfairly

treated;

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Expand:
to increase in size, number, or importance;

cite something as an authority for an action

Invoke:
Terminology or in support of an argument;

Peculiar: different to what is normal or expected;

Redress: To remedy or set right (an undesirable or

unfair situation).

1. The position of voluntary associations

Consider the scenario given below. As a student of administrative law

and with your new found zeal for administrative justice, what do you
think about the given scenarios and how do you think these situation be
resolved.

Scenario 1:

Serbian ruling party expels member for speaking out against SNS

AUTHOR: Smederevske Novine ENG, 27 December 2018

A local branch of the ruling Serbian Progressive Party (SNS) expelled

one of its members for saying that there was no freedom in the party, the
Smederevske Novine local newspaper reported. SNS local council
member Dragutin Mirkovic was expelled from the SNS branch in
Smederevo after taking the floor at a council session and saying that he
couldn’t say what he wanted to.

“Fellow councilors, I’ll call you that but that we are not. Citizens of
Smederevo, I am speaking solely in the interest of the citizens of
Smederevo because they wanted me to represent them and not represent
bullies. The meaning of life was mentioned just now. The meaning of life
is freedom. It is the greatest treasure along with a nice life and we do not
have that in the SNS. Why don’t you come out and tell the truth for once!
You can’t even say what you think here,” Dragutinovic said at the
session.

The local SNS board sent a letter to the party’s steering committee,
demanding his expulsion following what it said were insults against SNS
officials and councilors.

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“SNS councilor Dragutin Mirkovic’s speech, which violated the party

statute, insulted SNS members and was rewarded with an applause by
opposition councilors. We as the city committee recommend Mirkovic’s
expulsion from the party, especially since this is not his first statement of
this kind,” the letter, which Smederevske Novine has seen, said, adding
that Mirkovic also heckled Mayor Bojan Teofilovic when he spoke at the
council session.

Mirkovic was not allowed to speak for the rest of the session and he
walked out. A source close to the SNS branch in Smederevo said this was
just the latest in a series of violations of the statute by Mirkovic. “He
spoke out against the decisions and views of the party several times and
there are consequences for that under the statute,” the source said.

(Accessible at: http://rs.n1info.com/English/NEWS/a447430/Serbian-

ruling-party-expels-member-for-speaking-out-against-SNS.html)

Scenario 2:
Independent school within its right to expel kids‚ SCA rules

By Ernest Mabuza, 5 November 2018.

Two pupils have been effectively expelled from an independent

Johannesburg school after the Supreme Court of Appeal dismissed an
appeal by their parents to have the cancellation of their contracts with
the school set aside.

Over a period of time‚ from approximately October 2015 until June 30

2016‚ various incidents allegedly took place involving the children’s
father in relation to sporting events at Pridwin Preparatory School‚ and
at other schools‚ which caused disruption.

The school‚ situated in Melrose‚ Johannesburg‚ and which was

established in 1923‚ charges fees ranging from R103‚000 to R139‚460 a
year. The couple has an 11-year-old son doing grade 6 and a seven-year-
old in grade 2.

But in 2016‚ the parents’ contracts with the school were cancelled. In one
of the incidents‚ during a cricket game in November 2015 against
Crawford College at Trinity House School‚ the father shouted at the
umpire after his son – playing in the under-9 team - was given out leg
before wicket.

(Accessible at: www.timeslive.co.za/news/south-africa/2018-11-05-independent-

school-within-its-right-to-expel-kids-sca-rules/)

Scenario 3:

Church Expels Man for Praying for Too Long

By Ndi Kelvin Chaguza, 8 May 2018

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Unit 6 Extending the Principles of Administrative Law to Voluntary
Associations

A Christian man has recently received a shock of his life after the church
committee expelled him from church for dedicating so much of his time in
praying

According to Times of Swaziland, Njabulo Dlamini disclosed that praying

for a long time is not something he could control as he was commanded
by the Holy Spirit. “Most of the time when I pray, the Holy Spirit is
showing me something bad that is attacking the church and needs
powerful prayer,” he said.

He said he used to arrive at the church at around 10 before the start of

the main service at 11 and start praying and worshipping for an hour
when others are at their homes.

He was doing this as an intercessor and saw nothing wrong as it was

practiced in a number of churches which were directed by the ‘Holy
Ghost’.

Dlamini said at times he would pray as the pastor takes to the pulpit,
something that was despised by some of the church authorities.

“I did this to lay a foundation for the pastor who would be preaching the
word of God and without disrespect,” Dlamini told Times of Swaziland.

He continued saying the church has not at any point reprimanded him or
told him about any rules that needed to be adhered to.

According to Dlamini, most of the congregants at the church were very

stereotypical and too relaxed. He said they did not give themselves time
to be in God’s presence.

(Accessible at: http://www.faceofmalawi.com/2018/05/church-expels-man-for-

praying-for-too-long/ )

All the given examples are from other countries. But they could equally
have been from Namibia. So the issue, and not the country is of
importance for purposes of this discussion that follows.

Note it!

You reaction to the given scenarios was hopefully along the lines of
‘that’s not fair’, ‘it’s not reasonable’ or ‘ that is clearly against the law’,
‘We are living a free and democratic country, such dictatorial behaviour
is not allowed anymore!’ Some of you probably even added something
like: ‘with the entrenchment of article 18 in our Constitution we moved

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away from a culture of authority and embraced a culture of justification,

so they can’t just do as they please!

The question is: does article 18 apply to the given scenarios? In the
previous unit we stressed that article 18 is triggered by the presence of an
administrative action. By applying the ‘OLGN-criteria’ to each of the
three (3) examples it become clear that none of the decisions taken
qualifies as an administrative act per se. Article 18, accordingly, does not
apply to any of these scenarios.

You must be able to apply the elements or ‘OLGN-criteria’ to each of the

decisions to see why they do not constitute administrative action.

Note it!

Does that mean that voluntary associations and/or non-statutory bodies

such as political parties, churches, private schools and the like can act
against their members, parishioners or students as they please? In other
words, do they escape the accountability web? The answer is an emphatic
no!

Our courts have shown their resolve to also hold voluntary associations
and/or non-statutory bodies to standards of lawfulness, fairness and
reasonableness without resorting to article 18. This is so because, in the
words of Judge Parker:

“The noble requirements [of lawfulness, fairness and reasonableness] are not
peculiar and exclusive to the application of article 18 in respect of
administrative bodies and administrative officials: they bind courts and other
tribunals [too] […] – Makando HC judgement, par.25.

So when, why and how will courts apply the requirements of

administrative justice to voluntary associations and/or non-statutory
bodies. The next sub-sections answer these questions.

2 Widening the Accountability Net

No one is above the law. Issues of justice and fairness are not only
confined to public law situations. The rights guaranteed in the
Constitution are enforceable against both state and non-statutory
institutions. Voluntary associations and/or non-statutory bodies are thus
also held to the ‘culture of justification’ in respect of their acts and
decisions related to the members.

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Unit 6 Extending the Principles of Administrative Law to Voluntary
Associations

Refer again to examples 1, 2 & 3 given above. What, in your opinion, do

the given scenarios have in common? (Tip: think about the administrative
law relationship we referred to earlier).
Activity

Did you find that the political party, the private school and the church
were all in a position of authority over the member, student and
parishioner respectively? The member, student and parishioner, on the
other hand, were all in a position of subordination. Does this sound
Feedback familiar?

.2.1 When?
Whenever voluntary associations and/or non-statutory bodies discipline,
suspend or expel or institute any other form of disciplinary actions
against their members, the relationship between them and the member
become analogous to the administrative-law relationship. In other words,
the management is in a position of authority over the member(s) and the
member(s) is/are in a position of subordination. To avoid a possible abuse
of power the common-law rules of administrative law have traditionally
been applied to such situations. Our courts have continued this tradition.

Read each of the following cases. a) Summarise the decision taken in

each case, and b) explain the unequal relationship in each instance.

Oppermann case
Activity
Amupanda case

Naholo case

New AME Church case

Nowases case

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This is a self-study exercise. You are strongly advised to attempt it.

Feedback

It follows that courts will extend and apply the requirements of

administrative justice to voluntary associations and/or non-statutory
bodies when they stand in a position of authority over the members. The
relationship, as stressed, is therefore analogous to the administrative-law
relationship. It is thus unequal. One of authority versus subordination
which warrants scrutiny for possible abuse of power.

The answer as to why courts interfere in the internal dispute of a

voluntary associations and/or non-statutory bodies is aptly given in the
Amupanda case. In the words of Judge Parker:

“ […] in Namibia issues concerning justice and fairness are not seen as
‘political matters’- Amupanda case, par.15.

Members of voluntary associations and/or non-statutory bodies who are

aggrieved by decisions meted out against them by their organisations are
therefore entitled to:

“[Approach] the seat of judgment of the court […] on the basis of their
entitlement to natural justice, including fairness and justice” - Ibid

Voluntary associations and/or non-statutory bodies, as you know by now,

are not administrative bodies as contemplated in article 18 of the
Namibian Constitution. Article 18 therefor does not apply to them. How
then do courts go about to scrutinise their conduct to determine whether it
is consistent with the principles and values of administrative justice?

2.2 How?
i The framework used by the courts to scrutinise the conduct of
voluntary associations and/or non-statutory bodies in matters such
as admission, suspension and other disciplinary actions against
their members are varied. The common denominator of them is the
emphasis on the following:
ii The rule of law as guaranteed in article 1(1) of the Constitution;
however, the courts will interpret the powers of these associations
strictly on the basis of the agreement between members and the
associations as contained in their constitutions and other policies.
iii Both organs of state and non-statutory bodies are bound by the
Namibian Bill of Right in terms of article 5; in other words, non-

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statutory bodies just like all organs of the state must respect,
protect and fulfil the rights of their members where circumstances
so demand; failure to do so entitles their members to seek an
appropriate remedy in terms of article 25 of the Constitution.
iv The right to a fair trial as guaranteed in article 12 is not
limited to judicial proceeding i.e. criminal or civil trials only; it
equally applies to the disciplinary and other proceedings of non-
statutory bodies instituted against their members.
v The noble requirements of the rules of natural justice are
not peculiar and exclusive to the application of article 18; the
traditional common law rules of natural justice lives on through
article 66 of the Constitution; the rules of natural justice is thus
invoked to gauge the fairness of the decisions of these voluntary
associations.
vi A variation of this scheme is used by our courts to determine
whether or not the decision of the voluntary association
complained of, passes the yardsticks of ‘lawfulness’, ‘fairness’ and
‘reasonableness’ without resorting to article 18.

3 Examples From Case Law

Our jurisprudence is replete with examples that the requirements of

lawfulness, fairness and reasonableness are indeed not confined to organs
of state.

3.1 Compliance with ‘own’ law/rules

Courts have consistently stressed that voluntary associations must adhere
to the own rules whenever they act against an errant member.

Read the Oppermann, Amupanda, Naholo, New AME Church, and

Nowases judgments again.

What was the ‘law’ in each of these cases?

Activity
Was the ‘law’ complied with in each instance?

What was the view of the court in this regard? Do you agree with the
court’s decision? Motivate your answer.

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This is a self-study exercise. You are strongly advised to attempt it.

Feedback

The meaning and content of lawfulness is discussed in study units 8, 9

and 10 respectively.

Note it!

3.2 The Duty to Act Fairly

Our courts have also consistently pointed out that stressed that voluntary
associations are bound by the duty to act fairly in all circumstances. This
is the case irrespective of the type of misconduct committed by the errant
member.

Read the Oppermann, Amupanda, Naholo, New AME Church, and

Nowases judgments again.

What was the fairness issue complained about in each of these cases?
Activity
What was the view of the court in respect of the conduct of each of the
associations in this regard? Do you agree with the court’s decision?
Motivate your answer.

This is a self-study exercise. You are strongly advised to attempt it.

Feedback

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Unit 6 Extending the Principles of Administrative Law to Voluntary
Associations

The common-law rules of natural justice referred to in these decisions

will be discussed in study unit 11 and the courts’ common-law review
powers will be the topic of discussion in study unit 15.

Note it!

3.3 The duty to act reasonably

The administrative decision-maker (ADM) is not only required to act
lawfully and fairly. S/he it must also act reasonably in all circumstances.
In other words, a decision might be consistent with the applicable laws
and rules and fair but might be unreasonable. In such an instance the
decision taken will be set aside/invalidated by the courts. In Nambia, the
duty to act reasonably, in all circumstances, extents to voluntary
associations and/or non-statutory bodies.

Read Shixameni & Others v Congress of Democrats & Others

(A229/2007) [2008] NAHC 76(21 July 2008. Answer the following
questions based on the facts of the case.

Activity What was the issue of ‘reasonableness’ complained about in this case?

What was the view of the court in respect of the reasonableness of the
political party, the COD, in this case? Do you agree with the court’s
decision? Motivate your answer.

This is a self-study exercise. You are strongly advised to attempt it.

Feedback

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The meaning and content of reasonableness is discussed in study unit 13.

Note it!

Unit summary
In this unit you learned that the requirements of lawfulness,
fairness and reasonableness are not peculiar and exclusive to
article 18. These requirements are also made to apply to non-
statutory bodies such as politic parties, churches, trade
unions, and private schools in certain circumstances even
though they do not exercise state authority.

We have seen when, why and how courts will apply the
principles of administrative law/justice to such bodies without
the need to invoke article 18.

The next study unit looks at the legal position of administrative

agreements in the Namibian administrative law regime. This
unit brings to a close the discussion on ‘what constitute an
administrative action’ and also Study Guide 1.

References
Burns, Y. 2013. Administrative Law. Durban, LexisNexis, 4th
Edition.
Hoexter, C. (2012). Administrative in South Africa. Cape
References Town: Juta, 2nd Edition.

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Unit 7 Government/Public Contracts

Unit 7

Government/Public Contracts
Introduction
The ‘privatisation’ and ‘contracting out’ or 'outsourcing' of government
functions has become a familiar concept in Namibia. The outsourcing of
public functions to a private entity usually requires an agreement to be
entered into between the public body and the private contractor. These
agreements goes by various names i.e. ‘government contracts’, ‘public
contracts’ or ‘administrative agreements’. Despite their designation, they
all mean the same thing though. Thess designations are used
interchangeably in this study unit.

In the Open Learning Group Namibia (OLGN) case the court described
the challenge which comes with these type of contracts as follows:

“ […] it is important to appreciate the need for the state to be allowed sufficient
space (what is sometimes referred to as the ‘freedom of play in the joints of the
executive’) to operate in the business environment and to be governed by the
ordinary rules of contract and private law generally;[…] On the other hand, the
state is sui generis in that whatever it does is for a public purpose and that
imposes on it the duty to act fairly and in the public interest. For that reason its
actions must always seek to give effect to the ethos of the Constitution. That
may, in certain circumstances, require the state’s actions in the commercial
sphere be subjected to public law standards rather than those of the private
law. Where does one draw the line then?”

When dealing with outsourcing contract or service provision contract the

issue therefore is whether the government is entitled to act in the manner
in which an ordinary private contracting party would act, or whether it is
bound to act in accordance with the tenets of administrative law; that is,
lawfully, reasonably and in a procedurally fair manner. This issue comes
most prominently to the fore where the government seeks to exercise a
right to cancel that flows from private law.

The question that therefor arises is, whether or not the administrative
agreement will be governed either under the law of contract or
administrative law. If you find that the law of contract governs the
relationship between the parties, as opposed to administrative law, the
contractual agreement entered into by the public authority would be
immune to administrative law review and article 18 will therefore not
apply. On the other hand, if you find that administrative law governs the
relationship and not the law of contract, article 18 would apply and the
contractual agreement would be subject to administrative law review.

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There is, as yet, no set standard governing the contractual relationship

between the public body and private entity rendering a public service in
terms of an administrative agreement. Our courts are currently following
two approaches, namely the ‘purely contractual approach’ and the ‘public
law approach’ in dealing with disputes arising from such government
contracts.

This study unit essentially examines the law governing public contracts
in Namibia. It seeks to answer the question: in what circumstances will the
contractual arrangements entered into by a public authority be immune from
administrative law review?

Upon completion of this unit you should be able to:

▪ recognised instances of privatisation and outsourcing of

government/ public functions;

▪ explain the rationale behind ‘purely contractual approach’ in

Outcomes dealing with administrative agreements;
▪ explain the rationale behind the ‘public law approach’ in dealing
with administrative agreements;
▪ apply each of the two approaches to real life and/or hypothetical
situations;

▪ evaluate the criticisms levelled against the two dominant

approaches.

Burns, I. 1998. “Government contracts and the public/private

law divide”. SA Public Law, Volume 13, Issue 2, Jan 1998, p.
234 – 25
Additional reading

Consensus:
A general agreement;

Circumvent: To find a way around an obstacle;

Terminolog
Formalism:
In this study unit, refers to a judicial
tendency to attach undue importance to

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Unit 7 Government/Public Contracts

the pigeonholing of a legal problem and to

its superficial or outward characteristics;
Outsourcing:
The practice of handing over control of
public services to private enterprises;
Privatisation:
the transfer of a business, industry, or
service from public to private ownership
Unsatisfactory:
and control;

not satisfactory, not good enough.

1 Contracts entered into by public bodies

In 2004 the Minister of Safety and Security signed an agreement between the
ministry and Ethan Motors (PTY) Ltd to provide all official police vehicles. The
contract was subject to renewal or termination in January 2014 and it was
renewed in 2014.
Case Study /
Example In 2016 Ethan Motors was sold by its Namibian owner to a German national.
The Minister, following government policy to support local businesses ordered
the police to stop ordering vehicles from Ethan Motors.

Ethan Motors did not receive any prior notice of the ministry’s intention to
cancel the contract. It was also not given an opportunity to make
representations prior to the cancellation of the contract. In the absence of
these Ethan Motors acquired vehicles which can only be used for policing
purposes worth N$61 000 000.

In a situation as described in the given scenario the query centres around

whether the conduct of the public body (i.e. Minister of Safety and
Security) is administrative or whether or the situation should be viewed
as a purely contractual one.

If regraded as administrative the Constitution and the principles of

administrative apply.

In terms of a purely contractual reasoning, on the other hand, the

relationship between the parties is governed by the principles of contract
law to the exclusion of administrative law in general and fairness in
particular (Hoexter: 445-450). These views are informed by what Hoexter
refers to as the ‘public law approach’ and the ‘purely contractual
approach’ respectively.

The situation as reflected in the given scenario, necessarily involves an

inquiry as to whether our law views the action of the public authority in

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this instance as a ‘purely commercial decision’ or as an ‘administrative

decision’. The Constitution does not deal with this issue in specific terms.

In the OLGN case, the first of its kind, the court had to decide a similar
matter. The court invoked and distinguished between two approaches,
namely, the ‘public law approach’ and the ‘purely contractual approach’
to determine the matter.

2 The ‘Public Law Approach’

The ‘public-law approach’ is one of the distinctive ways in which
contractual relationships between public bodies and private entities have
been governed in Namibian administrative law. With this approach the
courts do not deny the existence of a contract but they do not allow for it
to be removed from its public law framework.

The courts then look at the constitutional values involved, the public
nature of one of the parties to contract and the source of the power to
contract which is in most instances from enabling legislation. Therefore
the contractual relationship entered into is thus governed by the rules of
administrative law and the provisions of article 18 of the Namibian
Constitution must be adhered to by the public body. Public bodies are
thus not deprived of their contractual rights but they must be exercised
fairly, reasonably and lawfully. They therefore cannot use the contract to
circumvent their public duty to act fairly.

The ‘public law approach’ was considered and applied in some Namibian
cases.

Read the following cases and answer the questions that follow:

Open Learning Group Namibia Finance CC v Permanent Secretary Of

The Ministry Of Finance & 3 Others Case No.: (P) A 90/2005
Activity
Ward v Permanent Secretary of the Ministry of Finance and Others ( (P)
A 272-2005) [2008] NAHC 11 (18 February 2008)

What was the contractual arrangement between the public body and the
private entity in each of these cases?

Explain how the court, in each case, went about to decide the dispute in
question.

Do you agree with the court’s finding in each of the cases? Substantiate
your answer fully.

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3 The Purely Contractual Approach

With the purely contractual approach the relationship between the parties
is viewed as a matter of ‘pure contract” thus one based on consensus and
only governed by private law. The statutory provisions created for the
relationship between the parties are not considered and the public nature
of one of the parties is rendered irrelevant.

The duties and rights of the parties are all contained in express or implied
terms of the contract. The rules of administrative law are thus side-lined
and the provisions of Article 18 are inapplicable despite a public body
being involved. The public body and the private entity are viewed as
having entered into the agreement on equal footing.

Accordingly, the relationship between the parties, as noted earlier, is

governed by the principles of contract law. Administrative law principles,
specifically, those related to procedural fairness are thus excluded in the
scheme of things, unless included in the contract. As is evident from the
cases, this applies especially to the termination of the contractual
relationship rather to its creation.

There are traces of the ‘private law approach’ i.e. purely contractual
reasoning being followed in Namibian jurisprudence.

Read the following case and attempt to answer the questions that follow

Permanent Secretary of Ministry of Finance and Others v Ward (SA

16/2008) [2009] NASC 3 (17 March 2009);
Activity
McLaren NO v The Municipal Council of Windhoek (A 110-2009) [2016]
NAHCMD 161 (8 June 2016);

McLaren Ian N.O and 3 Others v Municipal Council of Windhoek and 2

Others (SA 33/2016) [2018] NASC 1 (17 January 2018).

What was the contractual arrangement (agreements) between the public

body and the private entity in each of these cases?

Explain, in detail, the court’s reasoning for excluding the application of

the rules of natural justices in each of the instances.

Do you agree with the court’s reasoning? Why? Why not?

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This is a self-study exercise. You are strongly advised to do it. In saying

so, your ability to apply this knowledge about the ‘private law approach’
is once again of greater importance than a restatement of the theory.
Feedback

4 Which Approach is Preferable?

The approaches followed by the courts in dealing with contracts entered

into by public bodies with private contractors have been critised by
scholars. Quinot is of the position that neither an exclusive private law
nor a public law approach is effective for regulating administrative
agreements appears to be the general consensus.

In the same vein Calli Feirra argues that:

“Neither of the approaches offered so far by the courts […] provide a

particularly satisfactory resolution to the issue of whether administrative
law plays a role where the government exercises its private law rights.”

Hoexter, similarly finds the two approaches unsatisfactory. In her view,

both approaches fall prey to formalistic reasoning and side-line substance
reasoning.

It is worth pointing out the pure contractual reasoning was emphatically

rejected by the Constitutional Court of South Africa in the case of Joseph
and Others v City of Johannesburg and Others in 2009. In Namibia,
however, the ambivalence exhibited by the superior courts I respect of
government contracts continues.

Various academics, including Feirra and Hoexter, proposed ways on best

to regulate government contracts entered into with private contractors.

Read and summarise the following articles:

Ferreira, C. 2011. “The quest for clarity: an examination of the law

governing public contracts.” In South African Law Journal 128, pp 172 –
Activity 200;

Hoexter, C. 2004. “Contracts in Administrative law: Life after

formalism”. In SALJ, pp 595-618.

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Unit 7 Government/Public Contracts

Compare and contrast the authors’ contribution to the debate on

government contracts in administrative law.

Which proposal as offered by the two scholars is preferable in your view?

Substantiate your position.

This is a self-study exercise. You are strongly advised to do it. Once

again, your ability to apply knowledge is of greater importance than a
restatement of the theory and/or reciting the articles.
Feedback

What does fairness demand?

Sunnyside Mansions belongs to Mr Taker. The building is rented out to

families and business persons.
Assessment
Approximately 30 families were living in the building, including 38
children, and four apartments were occupied by elderly people. The
average monthly income of the households in the building is about NS3
000 to N$4 000, although some households have no income at all. A
number of shops and businesses also operated from Sunnyside Mansions.

On the morning of 8 July 2017, City Power2 disconnected the electricity

supply to Sunnyside Mansions. The tenants received no prior notice of the
disconnection. In fact, they had no idea why the electricity was being cut
off. At the time of the disconnection, most, if not all of the tenants, who
were being billed for electricity by Mr Taker, had consistently kept up
with their payments.

On the evening of the disconnection, Mr Taker’s son delivered a note to

each apartment, which stated that owing to “unforeseen circumstances”
the electricity supply would be disconnected for a few days.

On 11 July, following failed attempts to reach the landlord (Mr Taker),

the tenants formed a committee to investigate the reasons for the
electricity disconnection. Members of this committee visited the City
Council offices on 14 July and were informed that City Power had
disconnected the electricity supply because Mr Taker was in arrears to
the tune of N$400 000. The meetings conducted with the City Council and
City Power in an efforts to resolve the matter proved futile. The tenants
unsuccessfully sought to have the electricity supply reconnected and to

2
City of Windhoek outsourced the disconnection of electricity to City Power.

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compel City Power to conclude temporary electricity use agreements with

them.

The electricity supply to Sunnyside Mansions has not been reconnected.

The tenants have been without electricity for close to 18 months now.
Many tenants have left the building because the living conditions have
become intolerable as a consequence of the termination of the electricity
supply. Six (6) tenants, however, have continued to live there because it is
the most affordable family accommodation in the area. They cannot
afford to leave.

Prepare a well-reasoned legal opinion on which of the two approaches

must be applied to decide this case? Refer to case law and other
persuasive sources to justify your position.

Unit summary

In this unit you learned that governments the world over, including
Namibia, at times privatise and contract out or outsource certain
government services. To facilitate such services ‘government contracts’/
‘public contracts’/ ‘administrative agreements’ are usually entered into
with the private contractor.
Summary
We have seen that there are currently are two dominant approaches
followed by the courts to decide disputes, especially, when it comes to the
termination of the contractual relationship between the public authority
and the private contractor.

We have seen that Namibian jurisprudence reveals a great deal of

inconsistency in applying these approaches.

We have also learned that both the approaches as currently followed by

the courts have been critised by a number of scholars. The general
consensus is that both these approaches are less than ideal. Various
academics, accordingly, proposed alternative ways on how best disputes
arising from such contracts should be resolved.

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References
Hoexter, C. (2012). Administrative in South Africa. Cape Town: Juta,
2nd Edition.

References Quinot, G (Ed) et al. (2015). Administrative Justice in South Africa: An

Introduction. Cape Town: Oxford University Press Southern Africa, 1st
Edition.

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