**1.

1 Administrative-Law Relationship Analysis:**

An administrative-law relationship exists when one party, typically an

organ of state or a person/entity exercising public power, holds authority
over another party in a subordinate position, impacting their rights. This
relationship can be either general or individual.

- **General Administrative-Law Relationship:**

- Involves legal rules applying impersonally to all subjects within a

particular group.

- **Individual Administrative-Law Relationship:**

- Involves legal rules applying personally and specifically between

identifiable legal subjects, varying in content case by case.

In the provided scenario, Mr. McDonald is subject to an individual

administrative law relationship with the municipality. The municipality,
acting under the National Building Regulations and Building Standards Act
103 of 1977, exercises state authority over Mr. McDonald by rejecting his
building plans. This decision applies specifically to Mr. McDonald,
indicating a vertical relationship where the municipality, as an organ of
state, affects his rights through its action.

**1.2 Persuasive Sources of Administrative Law:**

Three persuasive sources of administrative law include:

- Writings in books/journals.

- Policy documents, such as Green and White Papers.

- Reports by state institutions.

- Foreign law.

1.3 Is administrative action in evidence in the set of facts? In your

answer, you should give a full definition of the concept
“administrative action” with reference to the provisions of the
Promotion of Administrative Justice Act (PAJA) 3 of 2000. (12)

In the scenario, administrative action is evident in the municipality's

decision to reject Mr. McDonald's building plans. According to Section 1 of
the Promotion of Administrative Justice Act (PAJA) 3 of 2000,
administrative action encompasses decisions made by organs of state or
other entities exercising public power, adversely affecting rights, and
having a direct legal effect.

- **Definition of Administrative Action (PAJA):**

- Involves any decision or failure to decide:

- By an organ of state or a person exercising public power.

- Adversely affecting the rights of any person.

- Having a direct, external legal effect.

In the case, the municipality's decision qualifies as administrative action

as it:

- Is made by an organ of state (the municipality).

- Adversely affects Mr. McDonald's rights.

- Has a direct legal effect due to the rejection of his building plans.

- Exceptions to the definition do not apply in this context.

Considering the definition of "administrative action," the municipality's

decision to refuse Mr. McDonald's building plans qualifies as
administrative action. It aligns with the definition as it encompasses a
decision made by a government entity (the municipality) exercising public
power or fulfilling a public function according to legislation (the National
Building Regulations and Building Standards Act 103 of 1977). This
decision has negatively impacted the rights of an individual (Mr.
McDonald) and seems to have resulted in a direct legal consequence.
None of the exceptions seem to be applicable.
QUESTION 2

2.2 Mention the three classes of administrative action and the

distinctive characteristics of each. (6)

1. Legislative Administrative Acts:

- Easily recognizable actions of the administration.

- Published in official documents like the Government Gazette.

- Specific rules govern their adoption, repeal, or amendment.

- Delegation of legislative power requires express statutory authority.

2. Judicial Administrative Acts (Quasi-Judicial Acts):

- Resemble actions of a court, hence termed "quasi-judicial."

- Administrators interpret and apply legal rules to resolve disputes in

concrete situations.

- Typically conducted by specialized bodies like administrative tribunals.

- Examples include the Films and Publications Appeal Board.

3. Administrative Acts:

- Involve the creation or alteration of individual administrative-law

relationships.

- Encompass various aspects of government activity, such as

implementing policies, applying legislation, or making adjudicative
decisions.

- Examples include granting licenses, promoting employees, stamping

passports, making arrests, or disbursing pensions.

These classes of administrative action serve different functions within the

administrative framework, each with its unique characteristics and
purposes.
2.3 Explain the concept of just administrative action with
reference to the relevant provision in the Constitution.

The concept of just administrative action, as outlined in the Constitution,

particularly in Section 33, entails ensuring that administrative actions
taken by organs of the state, public institutions, functionaries, as well as
individuals acting as administrators, are conducted in a manner that is
lawful, reasonable, and procedurally fair. Let's break down the relevant
provisions of Section 33:

1. **Lawful, Reasonable, and Procedurally Fair Action:**

- Section 33(1) stipulates that everyone has the right to administrative

action that meets three key criteria: it must be lawful, reasonable, and
procedurally fair. This means that actions taken by administrators must
conform to existing laws, be rational and justifiable in their purpose and
manner, and adhere to fair procedures.

2. **Right to Reasons:**

- Section 33(2) guarantees individuals whose rights have been adversely

affected by administrative action the right to be provided with written
reasons for such action. This ensures transparency and accountability in
administrative decision-making processes.

3. **Legislative Requirements:**

- Section 33(3) mandates that national legislation must be enacted to

give effect to these rights. Such legislation should:

- Provide for the review of administrative action by a court or an

independent and impartial tribunal.

- Impose a duty on the state to uphold the rights outlined in

subsections (1) and (2).

- Promote efficiency in the administration while ensuring the protection

of individual rights.

Just administrative action, therefore, aims to prevent the abuse or misuse

of power by administrators when dealing with individuals in subordinate
positions. It safeguards individuals by demanding that administrative
actions be conducted with legality, reasonableness, and procedural
fairness. Ultimately, it ensures that individuals receive just treatment,
fairness, and reasonableness in their interactions with administrators,
thereby upholding the principles of justice and fairness in administrative
processes.

2.4 Briefly define legality. Also explain this principle in the

constitutional framework.

Legality, as a principle, refers to the requirement that administrative

actions must not only be authorized by law but also conducted in
accordance with the legal provisions governing them. This means
adhering to the prescribed rules and regulations set forth by the law.
Additionally, public administration is expected to serve and promote the
public interest while safeguarding and respecting fundamental human
rights.

In the constitutional framework, legality is paramount. The Constitution

serves as the supreme law of the land, taking precedence over all other
state legislation. Any law or conduct that contradicts the Constitution can
be declared invalid by the court, as stated in Section 2 of the Constitution.
This ensures that all actions, including administrative ones, align with the
constitutional principles.

The case of Fedsure Life Assurance LTD v Greater Johannesburg 1999 (1)
SA 374 (CC) established a significant precedent, affirming that the
executive branch must operate strictly within the boundaries set by law.
They are not permitted to exercise powers or perform functions beyond
those conferred upon them by law.

Furthermore, Section 8 of the Constitution emphasizes that the Bill of

Rights binds not only the executive authority but also all organs of state.
This means that both state institutions and individuals exercising public
power are subject to the law and cannot operate outside its bounds. This
underscores the importance of legality in ensuring that administrative
actions are lawful, legitimate, and aligned with constitutional principles.
QUESTION 3

3.1 Briefly explain the rule against delegation. (5)

The rule against delegation prohibits an administrator from transferring or

assigning their decision-making authority to another person or entity
unless expressly permitted by law. In Foster v Chairman, Commission for
Administration 1991 4 SA 403 (C), this principle was elucidated, affirming
that when an individual is entrusted with the exercise of their own
judgment and discretion, they cannot delegate this power unless explicitly
authorized by the empowering statute.

This rule is grounded in the idea that the original administrator, who
possesses specific qualifications, knowledge, or expertise, must personally
perform the functions entrusted to them. Delegating such discretionary
powers would undermine the requirement for administrators to exercise
their duties with particular qualifications or responsibilities.

The case of Shidiack v Union Government 1912 AD 642, as cited, further

clarifies the concept of delegation. Innes ACJ emphasized that when the
legislature assigns discretion to an official, indicating that it must be
exercised in a judicial spirit, this responsibility cannot be delegated. The
individuals affected have the right to demand judgment from the
specifically appointed officer, underscoring the importance of personal
responsibility in decision-making.

3.2 Explain the rules that apply when delegation of powers is

permitted. (4)

The four points outlined address different aspects of the rule against
delegation:

1. **Limitation on Delegation:** The first point emphasizes that if an

administrator has the authority to exercise discretion in performing a
specific action, they cannot delegate this task unless explicitly permitted
by statute. This ensures that delegated powers are exercised within the
boundaries set by law.

2. **Mandate or Instruction:** The second point clarifies that while a

superior administrator who exercises discretionary power can instruct a
subordinate to implement a decision, this does not constitute
unauthorized delegation. Instead, it's considered issuing a mandate or
instruction, which is within the scope of their authority.

3. **Personal Application of Discretion:** The third point highlights

that the rule against further delegation also implies that an administrator
must not put themselves in a position where they accept directions or
orders from another body when exercising discretion. They must
independently apply their own judgment to the matter

4. **Appointment of Committees:** The fourth point allows

administrators to appoint fact-finding committees to assist them without
violating the rule against delegation, as long as the ultimate discretion
rests with the proper authority. This allows for the gathering of information
and expert advice while ensuring that decision-making authority remains
with the appropriate entity.

These points collectively illustrate the complexities and nuances involved

in applying the rule against delegation within administrative processes.

3.3 What are the three forms of delegation? (3)

- Mandate/instruction

- Decentralisation

- Deconcentration

3.4 PAJA gives effect to the right to reasonable administrative

action. The Constitutional Court has given content to the relevant
provision in PAJA that deals with reasonableness. Suppose the
decision taken by the City of Durban constitutes an
administrative decision, does this decision comply with the
reasonableness requirement as captured in the Constitution?
Substantiate your answer with reference to PAJA and case law. DO
NOT explain the right to written reasons. (13)

In the landmark decision of Bato Star Fishing (Pty) Ltd v Minister of

Environmental Affairs, the Constitutional Court delved into the
interpretation of section 6(2)(h) concerning the allocation of fishing
quotas. The appellant contested the Chief Director's allocation of fishing
quotas under the Marine Living Resources Act 18 of 1998 (MLRA), citing
alleged unreasonableness in the Chief Director's action.

Justice O'Regan, delivering the Court's judgment, acknowledged the

absence of a free-standing ground of review based on reasonableness in
pre-Constitutional jurisprudence. Referencing the Wednesbury decision,
O'Regan underscored that the test under the Promotion of Administrative
Justice Act (PAJA) draws directly from that precedent. However, she
stressed the need to interpret section 6(2)(h) in harmony with the
Constitution, particularly section 33(1), which requires a simple test for
reviewability: an administrative decision should be subject to review if it's
one that a reasonable decision-maker could not reach.

This "simple test" mandates that administrative action is reviewable if it's

beyond what a reasonable decision-maker would conclude, as articulated
by Lord Cooke in R v Chief Constable of Sussex, ex parte International
Trader’s Ferry Ltd [1999] 1 All ER 129 (HL). O'Regan J elucidated that
reasonableness is context-based, depending on the circumstances of each
case.

Moreover, O'Regan J enumerated factors relevant to determining

reasonableness, including:

(a) the nature of the decision,

(b) the identity and expertise of the decision-maker.

(c) the range of factors relevant to the decision;

(d) the reasons given for the decision;

(e) the nature of the competing interests involved; and

(f) the impact of the decision on the lives and well-being of those affected.

The municipality’s decision was not reasonable. No reasons were given for
the decision, Mr McDonald was effectively prohibited from undertaking
building works, which has a major impact on his business.
QUESTION 4

4.1 Explain the common law rules of natural justice? Refer to

relevant case to explain these rules. (12)

The common law rules of natural justice encompass the principles of audi
alteram partem (the right to be heard) and nemo iudex in sua causa (the
rule against bias).

- **Audi Alteram Partem Rule:**

1. **Opportunity to Be Heard:** Individuals must be given a chance to

present their case.

2. **Informed of Considerations:** They must be informed of factors

against them.

3. **Reasons for Decisions:** Administrators must provide reasons for

their decisions.

- **Nemo Iudex in Sua Causa (Rule Against Bias):**

- Decision-makers must be impartial and unbiased.

**Relevant Case:**

- In *Rose v Johannesburg Local Road Transportation Board*, the chairman

had financial interests in taxi companies, leading to bias in granting
transport licenses.

4.2 What are the forms of internal control? (3)

- Control by superior/senior administrators or specially constituted

bodies/institutions.

- Parliamentary control.

- Control by public bodies and commissions, such as the public protector

and the auditor-general.

4.3 What are the advantages of internal control? (5)

- Thorough re-evaluation of administrative decisions.

- Accountability for inefficient administrators.

- Less expensive, less cumbersome, and less time-consuming than judicial

control.

4.4 One of the preconditions set before an affected person may

take administrative action on judicial review is that he or she has
to exhaust internal remedies as required by section 7(2) of PAJA.
Provide five examples of when internal control would not be the
proper remedy. (Ie, give five exceptions to the general rule.) (5)

1. The case has already been prejudged by the administrator.

2. Decision made in bad faith, fraudulently, or illegally.

3. Aggrieved party has the option of extrajudicial remedy or direct judicial

review.

4. Unacceptable decision due to error of law.

5. Administrative body agrees to immediate judicial review.

6. Administrative body lacks authority to rectify the irregularity.

7. Internal remedy cannot offer the same protection as judicial review.