ADMIN LAW NOTES

Lesson 1

1. What is Administrative Law?

Administrative law is the branch of public law that governs the activities of administrative
agencies of government. In South Africa, it regulates the exercise of public power by the
executive and other public bodies.

Key case: President of the Republic of South Africa v South African Rugby Football Union
(SARFU) 2000 (1) SA 1 (CC)

Legislation: Promotion of Administrative Justice Act 3 of 2000 (PAJA)

2. Nature and scope of Administrative Law

Nature: Ensures accountability, transparency, and fairness in public administration.

Scope: Covers rule-making, adjudication, and enforcement by administrative agencies.

Legislation: PAJA Section 1 - Definition of administrative action

3. Admin Law and Constitutional Law

Administrative law is closely linked to constitutional law, deriving its principles from the
Constitution.

Section 33 of the Constitution guarantees the right to just administrative action.

Key case: Pharmaceutical Manufacturers Association of SA: In re Ex Parte President of the

Republic of South Africa 2000 (2) SA 674 (CC)

4. General Features of Admin Law (4 features)

a) Judicial review of administrative action

b) Procedural fairness

c) Reasonableness

d) Lawfulness

Legislation: PAJA Sections 6-8 (grounds for review, procedure, and remedies)

5. What makes a power or function PUBLIC?

A power or function is public when:

- It's derived from statute, the Constitution, or public law

- It involves the exercise of public authority

- It affects the rights or legitimate expectations of individuals

Key case: AAA Investments (Pty) Ltd v Micro Finance Regulatory Council 2007 (1) SA 343 (CC)

6. PUBLIC POWERS AND FUNCTIONS

Public powers and functions are those exercised by:

- Government departments

- Statutory bodies

- Certain private bodies performing public functions

Key case: Mittalsteel South Africa Ltd v Hlatshwayo 2007 (1) SA 66 (SCA)

Would you like me to elaborate on any of these points or provide additional information on any
specific aspect?

Lesson 3

1. Sources of Administrative Power - The Constitution of the Republic of South Africa, 1996

The Constitution is the supreme source of administrative power in South Africa.

Section 33 enshrines the right to just administrative action.

Section 195 sets out the basic values and principles governing public administration.

Key case: Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council
1999 (1) SA 374 (CC)

2. Sources of Administrative Power – Legislation

Parliament and provincial legislatures can confer administrative powers through legislation.

PAJA is the primary legislation giving effect to Section 33 of the Constitution.

Key case: Minister of Health v New Clicks South Africa (Pty) Ltd 2006 (2) SA 311 (CC)

3. Sources of Administrative Power – Common Law

Common law principles continue to inform administrative law where not superseded by the
Constitution or legislation.

These include principles of natural justice and the ultra vires doctrine.

Key case: Pharmaceutical Manufacturers Association of SA: In re Ex Parte President of the

Republic of South Africa 2000 (2) SA 674 (CC)
4. Sources of Administrative Power - Prerogative Powers

These are residual powers of the head of state derived from English common law.

In South Africa, most prerogative powers are now constitutionalized.

Key case: President of the Republic of South Africa v South African Rugby Football Union 2000
(1) SA 1 (CC)

5. Sources of Administrative Power – Estoppel

Estoppel can be a source of administrative power in limited circumstances.

It cannot be used to give validity to an act that is ultra vires.

Key case: City of Tshwane Metropolitan Municipality v RPM Bricks (Pty) Ltd 2008 (3) SA 1 (SCA)

6. Sources of Administrative Law - African Customary Law

Section 211 of the Constitution recognizes the role of traditional leadership and customary law.

Customary law must be consistent with the Constitution and legislation.

Key case: Shilubana v Nwamitwa 2009 (2) SA 66 (CC)

7. International Law and Foreign Law

Section 39(1) of the Constitution requires courts to consider international law and allows
consideration of foreign law when interpreting the Bill of Rights.

International treaties can influence administrative law when domesticated.

Key case: Glenister v President of the Republic of South Africa 2011 (3) SA 347 (CC)

Lesson 6

1. Judicial Review

Judicial review is the power of courts to examine the lawfulness of administrative actions and
decisions.

It's a constitutional imperative under Section 33 of the Constitution and given effect by PAJA.

Key case: Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs 2004 (4) SA 490 (CC)

2. Administrative Action

Defined in Section 1 of PAJA as decisions or failures to take decisions that adversely affect
rights and have a direct external legal effect.
Not all public power exercises constitute administrative action.

Key case: Minister of Health v New Clicks South Africa (Pty) Ltd 2006 (2) SA 311 (CC)

3. Control of Administrative Power

Includes internal controls (e.g., hierarchical oversight) and external controls (e.g., judicial
review, ombudsman).

PAJA provides for both internal remedies and judicial review.

Legislation: PAJA Sections 6-8

4. Rationale (H 56 – 60)

The rationale for controlling administrative power includes:

- Upholding the rule of law

- Protecting individual rights

- Ensuring accountability and transparency

- Maintaining separation of powers

Key case: Pharmaceutical Manufacturers Association of SA: In re Ex Parte President of the

Republic of South Africa 2000 (2) SA 674 (CC)

5. Appeal and review revisited

Appeal: Reconsideration of merits of a decision

Review: Examination of the lawfulness of the decision-making process

Key case: Tikly v Johannes NO 1963 (2) SA 588 (T)

6. Types of appeal procedures

- Internal administrative appeals (e.g., to a higher official or tribunal)

- Statutory appeals to courts on points of law

- Wide-ranging appeals allowing full reconsideration of merits

Legislation: PAJA Section 7(2) - Exhaustion of internal remedies

7. Types of Review procedures (by Courts or bodies with similar status)

- Judicial review under PAJA

- Constitutional review under Section 33 of the Constitution

- Common law review (where applicable)

Key case: Sidumo v Rustenburg Platinum Mines Ltd 2008 (2) SA 24 (CC)

8. Judicial Review: Basis of Courts' power to review AA : before and post 1994

Before 1994:

- Based on common law principles and parliamentary sovereignty

- Limited to grounds like ultra vires and procedural fairness

Post 1994:

- Constitutionally mandated (Section 33)

- Codified in PAJA

- Expanded grounds for review including reasonableness

Key cases:

Pre-1994: Union Government v Union Steel Corporation 1928 AD 220

Post-1994: Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan

Council 1999 (1) SA 374 (CC)

1. S33 of the Constitution

Section 33 of the Constitution of South Africa, 1996, enshrines the right to just administrative
action:

(1) Everyone has the right to administrative action that is lawful, reasonable and procedurally
fair.

(2) Everyone whose rights have been adversely affected by administrative action has the right to
be given written reasons.

(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.

Key case: Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs 2004 (4) SA 490 (CC)

2. Section 1 of PAJA defines AA (Administrative Action)

PAJA defines administrative action as:

"any decision taken, or any failure to take a decision, by-

(a) an organ of state, when-

(i) exercising a power in terms of the Constitution or a provincial constitution; or

(ii) exercising a public power or performing a public function in terms of any legislation; or

(b) a natural or juristic person, other than an organ of state, when exercising a public power or
performing a public function in terms of an empowering provision,

which adversely affects the rights of any person and which has a direct, external legal effect..."

Key case: Minister of Health v New Clicks South Africa (Pty) Ltd 2006 (2) SA 311 (CC)

3. Section 1 of PAJA – Definition of decision

PAJA defines a decision as:

"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 a decision relating to-

(a) making, suspending, revoking or refusing to make an order, award or determination;

(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or
permission;

(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;

(d) imposing a condition or restriction;

(e) making a declaration, demand or requirement;

(f) retaining, or refusing to deliver up, an article; or

(g) doing or refusing to do any other act or thing of an administrative nature, and a reference to a
failure to take a decision must be construed accordingly;"

Key case: Grey's Marine Hout Bay (Pty) Ltd v Minister of Public Works 2005 (6) SA 313 (SCA)

4. Section 1 of PAJA - List of exclusions to what constitutes administrative action

PAJA explicitly excludes the following from the definition of administrative action:

(aa) The executive powers or functions of the National Executive, including the powers or
functions referred to in sections 79(1) and (4), 84(2)(a), (b), (c), (d), (f), (g), (h), (i) and (k), 85(2)(b),
(c), (d) and (e), 91(2), (3), (4) and (5), 92(3), 93, 97, 98, 99 and 100 of the Constitution;

(bb) the executive powers or functions of the Provincial Executive, including the powers or
functions referred to in sections 121(1) and (2), 125(2)(d), (e) and (f), 126, 127(2), 132(2),
133(3)(b), 137, 138, 139 and 145(1) of the Constitution;

(cc) the executive powers or functions of a municipal council;

(dd) the legislative functions of Parliament, a provincial legislature or a municipal council;

(ee) the judicial functions of a judicial officer of a court referred to in section 166 of the
Constitution or of a Special Tribunal established under section 2 of the Special Investigating
Units and Special Tribunals Act, 1996 (Act 74 of 1996), and the judicial functions of a traditional
leader under customary law or any other law;

(ff) a decision to institute or continue a prosecution;

(gg) a decision relating to any aspect regarding the nomination, selection or appointment of a
judicial officer or any other person, by the Judicial Service Commission in terms of any law;

(hh) any decision taken, or failure to take a decision, in terms of any provision of the Promotion
of Access to Information Act, 2000; or

(ii) any decision taken, or failure to take a decision, in terms of section 4(1);

Key case: President of the Republic of South Africa v South African Rugby Football Union 2000
(1) SA 1 (CC)

1. Pathways to Judicial Review: 2. The PAJA

PAJA is the primary legislation giving effect to Section 33 of the Constitution.

It provides grounds for review in Section 6 and remedies in Section 8.

Key case: Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs 2004 (4) SA 490 (CC)

2. Pathways: S33 AND?/OR? the PAJA?

The relationship between S33 and PAJA has been a subject of debate.

Generally, PAJA is seen as the first port of call for judicial review.

However, direct reliance on S33 may be possible in certain circumstances.

Key case: Minister of Health v New Clicks South Africa (Pty) Ltd 2006 (2) SA 311 (CC)

3. Pathways to Judicial Review: 3. Special statutory review

Some statutes provide for specific review procedures.

These may coexist with or replace PAJA review, depending on the legislative intent.

Key case: Sidumo v Rustenburg Platinum Mines Ltd 2008 (2) SA 24 (CC)

4. Pathways to Judicial Review: 4. The Principle of legality

Developed as a constitutional principle to review exercises of public power that fall outside
PAJA's scope.

Based on the rule of law (Section 1(c) of the Constitution).

Key case: Pharmaceutical Manufacturers Association of SA: In re Ex Parte President of the
Republic of South Africa 2000 (2) SA 674 (CC)

5. Judicial review and private entities

Private entities exercising public powers or performing public functions are subject to judicial
review.

The test is whether the function or power has a sufficiently public character.

Key case: AAA Investments (Pty) Ltd v Micro Finance Regulatory Council 2007 (1) SA 343 (CC)

6. Remedies: "Judicial deference" and "respect"

Judicial deference: Courts should respect the expertise and constitutional role of administrative
decision-makers.

"Respect": Courts should give weight to findings of fact and policy decisions by administrators.

Key case: Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs 2004 (4) SA 490 (CC)

In this case, O'Regan J stated: "A court should not rubber-stamp an unreasonable decision
simply because of the complexity of the decision or the identity of the decision-maker."

Legislation: PAJA Section 8 provides a range of remedies, including:

- Directing the administrator to give reasons

- Directing the administrator to act in a particular manner

- Prohibiting the administrator from acting in a particular manner

- Setting aside the administrative action

- Declaring rights

- Granting temporary relief

- Making an order as to costs

Lesson 7

1. Administrative Action in terms of the PAJA

Administrative action is a key concept in South African administrative law, as it determines

which actions are subject to judicial review under PAJA.

2. Definition of Administrative Action

The definition of administrative action is crucial as it determines the scope of PAJA's
application. It's a complex definition with several elements that have been subject to judicial
interpretation.

3. Definition of Administrative Action as described in PAJA

Section 1 of PAJA defines administrative action as:

"any decision taken, or any failure to take a decision, by-

(a) an organ of state, when-

(i) exercising a power in terms of the Constitution or a provincial constitution; or

(ii) exercising a public power or performing a public function in terms of any legislation; or

(b) a natural or juristic person, other than an organ of state, when exercising a public power or
performing a public function in terms of an empowering provision,

which adversely affects the rights of any person and which has a direct, external legal effect..."

Key case: Minister of Health v New Clicks South Africa (Pty) Ltd 2006 (2) SA 311 (CC)

4. Section 1 of PAJA – Definition of decision

PAJA defines a decision as:

"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 a decision relating to-

(a) making, suspending, revoking or refusing to make an order, award or determination;

(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or
permission;

(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;

(d) imposing a condition or restriction;

(e) making a declaration, demand or requirement;

(f) retaining, or refusing to deliver up, an article; or

(g) doing or refusing to do any other act or thing of an administrative nature, and a reference to a
failure to take a decision must be construed accordingly;"

Key case: Grey's Marine Hout Bay (Pty) Ltd v Minister of Public Works 2005 (6) SA 313 (SCA)

5. Elements of the definition in section 1 of PAJA

The definition can be broken down into several key elements:

a) A decision or failure to take a decision

b) By an organ of state or a natural/juristic person

c) Exercising a public power or performing a public function

d) In terms of an empowering provision

e) Which adversely affects rights

f) Has a direct, external legal effect

Each of these elements has been subject to judicial interpretation.

Key case: President of the Republic of South Africa v South African Rugby Football Union 2000
(1) SA 1 (CC)

6. Administrative Action as described in PAJA

PAJA also provides a list of exclusions from the definition of administrative action, including:

- Executive functions of national and provincial executives

- Legislative functions of parliament and provincial legislatures

- Judicial functions of courts and traditional leaders

- Decisions to institute prosecutions

These exclusions help to maintain the separation of powers and define the boundaries of
administrative action.

Key case: Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council
1999 (1) SA 374 (CC)

It's important to note that even if an action doesn't fall within PAJA's definition of administrative
action, it may still be subject to review under the principle of legality or other constitutional
principles.