ADL2601 Exam 2

ADL2601
Student Number: 10007512
Examination 17/09/2021
Question 1:
1.1. The administrative relationship in this scenario will be between David Goliath
and the Transport Commission. David Goliath is a private individual in the
subordinate position and the Transport Commission is the lower-ranking
official in the same department. The legal norms governing the relationship
between the parties in a general administrative-law relationship apply to all
the subjects in a certain group, namely, David and the Transport Commission
in this case. Legislation creates, modifies, and terminates it. The regulations
apply directly and particularly between the parties in an individual
administrative-law relationship. Individual administrative decisions shape the
connection.
1.2. The organ of state is the Transport Commission. Organ of state in terms of
section 239(a) refers to the public servants and institutions that make up the
government. In section 239 of the Constitution is states that; ‘any department
of state or administration in the natural,’ provincial or local sphere of
government or any other functionary or institution that (i) exercises power of
the Constitution (ii) exercises public power in terms of any legislation. Any
person or organization that is not part of the government, but who exercises
power or performs functions under the Constitution or a provincial constitution,
or who exercises public power or performs public functions under the law.
1.3. Section 1 of PAJA defines administrative action as any decision taken or any
failure to take a decision by organ of state or a natural or juristic person.
Decision means any decision of an administrative nature made, proposed to
be made, or required to be made as the case may be under an empowering
provision, including the decision relating to: (i) making, suspending, revoking
or refusing to make an order or award determination (ii) giving, suspending,
revoking or refusing to give a certificate, direction, approval, consent or
permission. Before deciding whether it constitutes administrative action, we
first see that action will qualify as administrative action. A decision will also
qualify as administrative action if it involves the refusal to take a decision.
The decision taken by the official to withdraw David’s permit does constitute
Administrative action because it illustrates an organ of state taking a decision
to withdraw his permit because it violates section 25(1)(a)(i). It would of also
resulted in administrative action if the officer failed to withdraw David’s permit
because section 1 of PAJA states that any failure to take a decision results in
administrative action.
1.4. No because David would in this case be given an opportunity to appeal to

keep his permit because the section would provide an opportunity to make
representations in terms of administrative law. Administrative law relationship
refers to the exists between two or more people where at least one of the
objects is a person or body clothed in state authority who is able to exercise
that authority over a person or body in a subordinate position. If David’s
permit did get withdrawn by the officer then David will have to appeal in court
and state that his permit was withdrawn without him getting the opportunity to
appeal. So in any situation, if the section stated that suspects can appeal their
matters then the officer can withdraw the permit but all suspects must be
allowed to appeal to get their permits granted back to them.
1.5. Procedurally administrative action affecting any person: (i) Administrative

action that materially and adversely affects the rights of legitimate
expectations of any person must be procedurally fair (ii) A fair administrative
procedure depends on the circumstances of each case and in order to give
effect to the right to procedurally fair administrative action, an administrator
(iii) In order to give effect to the right to procedurally fair administrative action,
an administrator may, in his or her or its discretion (iv) If it is reasonable and
justifiable in the circumstances, an administrator may depart from any of the
requirements and in determining whether a departure as contemplated in
paragraph is still reasonable and justifiable. (v) Where an administrator is
empowered by any empowering provision to follow a procedure which is fair
but different from the provision of subsection 2, the administrator may act in
accordance with that different procedure. The decision of the official would still
be procedurally fair if he choose to withdraw David’s permit because its
administratively correct with regards to all the above information.
1.6. By definition reasonableness means a standard of review used by courts to

determine the constitutionality or lawfulness of legislation and regulations,
particularly in common law jurisdictions, and by which judges assess whether
the questioned law or practice can be justified in light of the goals pursued
and the constitutional rights to be protected. In terms of the information
displayed the officers decision would be reasonable enough because David
does violate section 25(1)(a)(i) and that is definitely a reason for the officer to
enact on this violation. It could also be unreasonable because David was not
asked for reasons as to why he was driving so fast and his reason may be
valid because David could of felt unsafe transporting alcohol into a township
because its very unsafe due to the reason that alcoholism is a major problem
in townships.
1.7.
Question 2:
Original legislation:
 Made by representative democratic party

 Fedsure life assurance ltd
 Constitutional Status of Local Government materially different when
Parliament was supreme
 Local Government now have place in constitutional order
Delegated / Subordinate legislation:
 Enacted in terms of original legislation

 Proclamation by President
 Regulations by Ministers
Question 3:
Principle of legality (administrative legality) Originated at Common Law. The

lawfulness of the state action, in other words, government by the law and under the
law. Principle used by courts to determine whether administrative action was not
only authorized by laws but also performed in accordance with the prescripts laid
down by the law. Basis of legality is that public administration must; serve a promote
public interest, protect and respect fundamental rights.
Question 4:
The concept ultra vires has always been used under common law to enquire whether
administrative action was not performed outside the boundaries of the powers
granted to administrators. Ultra vires literally means “to act beyond one’s powers”
(vires means “powers” and ultra means “beyond”). It therefore means to exceed
one’s powers.
Exceed powers set out above = ultra vires – exceed authority.
Question 5:
judicial review The courts have inherent review jurisdiction in terms of the common
law It entails reviewing the legality of a decision Review in terms of the Constitution,
section 6 of PAJA, the Supreme Court Act or in terms of the relevant legislation
Grounds of review: infringement of a fundamental right OR failure to comply with sec
6 of PAJA (the requirements of valid administrative action)
Judicial review of administrative action –
(1) Any person may institute proceedings in a court or a tribunal for the judicial
review of an administrative action. (2) A court or tribunal has the power to judicially
review an administrative action if –(a) the administrator who took it –
(i) was not authorised to do so by the empowering provision; (ii) acted under a
delegation of power which was not authorised by the empowering provision; or
(iii) was biased or reasonably suspected of bias;
(b) a mandatory and material procedure or condition prescribed by an empowering

provision was not complied with; (c) the action was procedurally unfair; (d) the action
was materially influenced by an error of law; (e) the action was taken –
(i) for a reason not authorised by the empowering provision; (ii) for an ulterior
purpose or motive; (iii) because irrelevant considerations were taken into account or
relevant considerations were not considered; (iv) because of the unauthorised or
unwarranted dictates of another person or body; (v) in bad faith; or (vi) arbitrarily or
capriciously;
(f) the action itself –
(i) contravenes a law or is not authorised by the empowering provision; or (ii) is not
rationally connected to (aa) the purpose for which it was taken; (bb) the purpose of
the empowering provision; (cc) the information before the administrator; or (dd) the
reasons given for it by the administrator;
(g) the action concerned consists of a failure to take a decision; (h) the exercise of
the power or the performance of the function authorised by the empowering
provision, in pursuance of which the administrative action was purportedly taken, is
so unreasonable that no reasonable person could have so exercised the power or
performed the function; or (i) the action is otherwise unconstitutional or unlawful. (3)
If any person relies on the ground of review referred to in subsection (2)(g), he or
she may in respect of a failure to take a decision, where – (a) (i) an administrator
has a duty to take a decision; (ii) there is no law that prescribes a period within
which the administrator is required to take that decision; and (iii) the administrator
has failed to take that decision, institute proceedings in a court or tribunal for judicial
review of the failure to take the decision on the ground that there has been
unreasonable delay in taking the decision; or (b) (i) an administrator has a duty to
take a decision; (ii) a law prescribes a period within which the administrator is
required to take that decision; and
(iii) the administrator has failed to take that decision before the expiration of that
period, institute proceedings in a court or tribunal for judicial review of the failure to
take the decision within that period on the ground that the administrator has a duty to
take the decision notwithstanding the expiration of that period.
Question 6:
In terms of s 239 of the Constitution an organ of state includes: l (a) any department
of state or administration in the national, provincial or local sphere of government; or
(b) any other functionary or institution that (i) exercises a power or performs a
function in terms of the Constitution or a provincial constitution; or (ii) exercises a
public power or performs a public function in terms of any legislation. A court and
judicial officers are excluded.
Question 7:
True

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ADL2601

Student Number: 10007512

1.4. No because David would in this case be given an opportunity to appeal to

1.5. Procedurally administrative action affecting any person: (i) Administrative

1.6. By definition reasonableness means a standard of review used by courts to

 Made by representative democratic party

Delegated / Subordinate legislation:

 Enacted in terms of original legislation

Principle of legality (administrative legality) Originated at Common Law. The

Judicial review of administrative action –

(b) a mandatory and material procedure or condition prescribed by an empowering

(f) the action itself –

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