STUDY UNIT 6: ADMINISTRATIVE

ACTION:

- Activity 5.1 (Page 42)

1. - Presidential functions - distinction between executive and constitutional. President of the Republic of
South Africa v South African Rugby Football Union (SARFU) 1999…
2. - Action in terms of original legislation is not administrative action. Fedsure Life Insurance Ltd. v
Greater Johannesburg Transitional Metropolitan Council 1998…
3. - The adoption of an Act by Parliament is not administrative action as it is performing legislative
functions.
4. - Minister makes regulations in terms of an Act = administrative action (regulations constitute
subordinate legislation)
5. - Judicial functions are not administrative action.
6. - Public official refusing application is administrative action.
7. - Person appeals application is administrative action.

5.1 THE NEED TO ESTABLISH WHETHER ADMINISTRATIVE ACTION IS INVOLVED:

1. - The application of the s 33 (The right to just administrative action) depends on;

Administrative action performed by;

Organ of State Person exercising public power Person performing public function
in terms of legislation

2. - List of exclusions to what constitutes administrative action.

5.2 THE BROAD DEFINITION OF ADMINISTRATIVE ACTION:

5.2.1 A broad description:

- Any decision of an organ of state (of administrative nature), made in terms of the prescription of the
empowering laws and/or,
- Any decision of private persons when they exercise public power or perform public functions in terms of
empowering laws.

- The Constitutional Court approach the meaning of administrative action negatively (provided a list of
exclusions).
- President of the Republic of South Africa v SARFU
- Pharmaceutical Manufacturers Association of South Africa ex parte President of the Republic of South
Africa.
- Above cases help determine whether action qualifies as administrative action.
5.2.2 Constitutional instructions relating to administrative action:
- s 33 of the Constitution;

Just administrative action;

(1) Everyone has the right to administrative action that is lawful, reasonable and fair.
(2) Everyone whose rights have been adversely affected by administrative action has the right
to be given written reasons.
(3) National legislation must be enacted to give effect to these rights, and must -

(a) provide for the review of administrative action by a court, or, where appropriate,
an independent and impartial tribunal;
(b) impose a duty on the state to give effect to the rights in subsections (1) and (2); and
(c) promote an efficient administration.

- s 33 contains a broad framework, legislature (parliament) must give effect (provide the detailed
expression of rights and remedies to vindicate (uphold / defend) them).
- Revised Administrative Bill was presented to parliament and finally passed the Promotion of
Administrative Justice Act 3 of 2000. (PAJA).

5.2.3 Administrative action as described in PAJA:

- Decision,
- failure to make a decision,
- of an administrative nature, (distinction between administrative and constitutional law).
- organ of state,
- private persons,
- exercising public power,
- under an empowering provision, (rule of law, common law, customary law, an agreement etc).
- adversely affect rights,
- direct, external legal effect,
- exclusions…

- Concerned with only one branch of state = Executive - Concerned with structure of the organs
- Concerned with implementing and administering of state at the highest level
(parliament,
(applying policy). executive & judiciary.
- Concerned with the formulation of
policy.

5.3 ACTION THAT DOES NOT QUALIFY AS ADMINISTRATIVE ACTION:

No: Action that is excluded from administrative action: Examples:

 1. Powers and functions of the national, provincial and local - The president assenting to bills in
executive. (Functions of the highest nature, which are terms of s 84(2) of the Constitution.
Constitutional in nature). - The president appointing
commissions of inquiry in terms of s
84(f) of the Constitution.
- Ceremonial functions.
- Signing of new legislation.
2. Legislative functions of parliament, provincial - Distinction between constitutional
legislatures and municipal councils. and administrative law.
3. Judicial functions of a judicial officer of a court. (Judges, - A decision to institute a prosecution.
magistrates). - Decision relating to appointment of
judicial officers by Judicial Services
Commissions.
4. Decisions under the Promotion of Access to Information - This Act has its own prescripts about
Act 2 of 2000. review, reasons and it simplifies
matters to exclude it.

- These exclusions fall under the constitutional law and are regulated by the rules of constitutional law and
not by the rules of administrative law.  no action is above the law = constitutional supremacy.

5.4 THE CLASSES OF ADMINISTRATIVE ACTION:

- Doubt expressed about the need for classes of administrative action as PAJA provides a definition.
Administrator, Transvaal v Traub 1989.
- Classification remains a practical necessity since the law attaches important consequences to the
difference between these classes.

5.4.1 Separation of powers and three classes of administrative action:

- Classification has origin in principle of separation of powers (trias politica).
- Principle = State authority is divided into:

1. Legislative authority, 2. Executive authority, 3. Judicial authority.

- Power to create, amend - Power to formulate & give - Power to control

and / repel legal rules. effect to policy through legislative &
execution & administration of executive authority
legal rules. through
interpreting legal
rules.

- This division prevents an excess of power / concentration of power in one organ of state.
- Protects citizen against the abuse of power.
- Administrative action also classified into 3 classes of action which reflect the function of the particular
action.
5.4.2 Three classes of administrative action:

5.4.2.1 Legislative administrative action:

- Refers to administrative rules which are legislative in nature.

- The making & issuing of delegated legislation when authorized by enabling legislation.
e.g. Regulations (subordinate legislation) in terms of empowering / original legislation.
- Have specific form & published in official document. (Government Gazette).
- General relationships are created, varied and/or ended by administrative legislative actions.
e.g. The administrative institution can regulate the relationship by way of resolution.
- Specific rules apply to the adoptions, repeal or amendment of all legislative administrative
action.
- The power to delegate a legislative power exists only when there is express statutory
authority for this.
- Administrative legislative action must be within the framework of the authority given by
the enabling Act.  the regulations must not be in conflict with the Act and must not be
vague and unclear. (The public must know what is expected of them).

5.4.2.2 Judicial administrative action:

- Refers to action of an organ of state that is almost like that of the judicial authority (the courts) in that
legal rules are interpreted and applied to concrete situations.

- There are very few organs of state that perform purely judicial functions.
e.g. The air pollution appeal board, The films and publications appeal board.
- Formal and material tests are applied to identify a judicial administrative functionary or
institution. Test used to distinguish between administrative and judicial action;

Material test Formal Test

1)Is there a legal dispute or uncertainty regarding 1)Does administrative institution posses same
rights, privileges, freedoms, powers or duties? attributes as court? (independent, accessibility,
A dispute = at least 2 parties or an uncertainty application of procedure etc.)
= at lest one person having an interest in the matter. Or does the institution form part of existing
judicial system?

2)Has there been a decision and application of the law 2)Relating to the legal force of the judicial
re: rights and duties? act - Is the effect of the decision final and
The application of the law = determination of disputed binding? In other words -- whether the rule
facts → decision. neb is in idem (the same matter may not be
An administrative authority merely states the law heard twice) or the prohibition of res iudicata
without a decision → he is not performing a judicial (the matter has been dealt with) applies to the
function, but providing legal advice. administrative action.
- Only a genuine judicial function will meet all the material and formal requirements. Non-judicial actions
may comply with one or more of the tests, but not all of them.
5.4.2.3 “Purely”administrative action:
- Refers to “true” administrative action where individual administrative law relationships are created or
varied.

- Action concerned with the day to day business of the implementing, administering or
applying policy.
- Administrative action in terms of PAJA is a decision (doing or refusing to do any act of
administrative nature).
- Purely administrative action is divided into two broad categories based on the measure of
cooperation & agreement between the legal subjects (the administrative body & person
affected by the action;

1. Consensual (multilateral) 2. Authoritative (unilateral)

administrative action: administrative action:

Requires consent of the person/s affected Administrative authority does not need the consent
of the other person to make a decision.

e.g. Collective labour agreement between organised e.g. The granting / refusing of a trading licence.
employer & employee associations → approved Licensing is not an agreement but a decision even
by Department of Labour through the minister. If though it may look like an offer and acceptance.
minister includes additional matters must obtain The decision must be in terms of the prescripts of the
consent from both parties. law.

Further subdivisions of unilateral action are;

a) Mechanical administrative b) Discretionary administrative

action: action:

Refers to a strictly defined instruction Refers to an organ of state who has power
(ministerium) to the authority to perform to choose between 2 or more alternatives.
duty. (No element of discretion). Wide discretionary power e.g. Liquor Licence.
e.g. Tender R12 for dog licence to clerk Narrow (circumscribed) discretionary power
→ clerk must give you licence. → Enabling provision lays down option to
take into consideration.

c) Action by the Police: d) Action relating to the internal

domestic functioning of the
public administration:
Arrest, detention and interrogation → Refers to internal organisation, division of
infringement of personality rights, labour and functions of administration.
the right to freedom. Internal administrative action may be
Issue of unlawful police action and legislative (dept. regulations), quasi-judicial
procedure. (disciplinary action), or unilateral
(instructions).

5.5 THE LEGLA FORCE OF ADMINISTRATIVE ACITON:

- The above meaning the effect of such action in law.

- We distinguish between;

5.5.1 When does administrative action take effect?

- NB to determine the period in which appeal may be lodged to higher domestic tribunal or court.
- We distinguish between 3 classes;

1) Legislative administrative action: 2) Judicial administrative action:

Affects individual as soon as the regulation Takes effects as soon as particular judicial
has been promulgated, and date of institution delivers judgement / decision,
commencement arrives. unless the statue provides for period of appeal.

3) Purely administrative action:

Takes effect upon the decision becoming

known, by publication or individual
notification.

5.5.2 Termination of the legal force of administrative action:

- Terminated by repeal, amendment, lapse of time, withdrawal or court order.
- Functus ofifcio → The matter has been finally dealt with. (When organ of state cannot amend, repeal or
alter its decision).
- The role of the organ of state has ended → need to establish at what moment the organ of state will be
functus officio.
- We distinguish between 3 classes;

1) Legislative administrative action: 2) Judicial administrative action:

Legislative organ may repeal or amend Appeal board is functus officio once it has
legislative administrative action at any time, made its decision.
may not be retrospective. Judicial administrative action has the force of
Does not affect acquired rights. res iudicata and decision may be altered,
rescinded or set aside by a higher judicial
body. (The High Court).
3) Purely administrative action:

Distinction drawn between valid and invalid action;

a) Valid administrative action: b) Invalid administrative

action:

Valid onerous (burdensome):

Places duty on individual or refuses

to grant a right.
May be altered by the administrator
at any stage.

Valid beneficial:

Action may be altered only when

power to do so conferred expressly
or by necessary implication.

Administrative action affecting

the status of an individual:

Authority may not withdraw or rescind

decision unless authorised expressly or
by necessary implication.
e.g. adoption order.