Administrative

Law
PRAL6222 /6212

Learning Unit 1
An Introduction to Administrative
Law
 Overview:

Branch of public law that regulates the legal

relations of public authorities.
Activities of bodies that exercise public powers
or perform public functions
Overview

Organs of government that form part of

public administration and
Development of administrative law from
pre-democratic to modern day.
Sections of the Constitution of
South Africa iro Administrative Law.
Comparison between
administrative law and
constitutional law.
Overview

Impact and relevance of the

Constitution on common
administrative law.
Distinguish between the different
types of administrative power.
Compare the different
classifications of administrative acts.
Discuss the dangers and
advantages of these classifications.
Theme 1: Introduction to
Administrative Law
Prescribed Material (PM)
(1-6 sessions)
PM: Chapters 1, 2 (para 2.2) and 3 (paras 3.2 and 3.3)
The Promotion of Administrative Justice Act 3 of 2000 (PAJA)
LO1: Discuss what administrative law entails as a branch of public law.
LO2: Define ‘public administration’.
LO3: Identify the organs of the government that form part of the public administration, with reference to
relevant case law.
LO4: Give an overview of the development of administrative law in South Africa by focusing on the impact
with which the Constitution has had from the pre-democratic era to modern day administrative law.
General introduction

In South Africa today the more accurate nature and scope of administrative law can
be described as regulating the activities of bodies that exercise public powers or
perform public functions, irrespective of whether these bodies are public
authorities in the strict sense.
When we say administrative law is everywhere what do we mean?
Administrative law

Regulated by government.
Public power and public function.
This is part of Public Law. ( vertical relationship)
Effective administrative law, element of Rule of law
Introduction

Law governs the relationship between legal subjects –

When public authoritative power is exercised by an authoritative body, the relationship is one of inequality.
Law consists of all the rules which regulate how humans interact with one another. Administrative Law is
concerned with how the party in authority acted –
Was s/he impartial, did not abuse his/her power in making a decision.
When a decision is taken which results in someone’s rights being adversely affected written reasons for
the decision must be given –
The Constitution promotes human rights. The law provides protection against the abuse of power by
someone in authority.
LO1: Discuss what administrative law entails as a
branch of public law.

Administrative law can be defined as all the legal rules that allow people, or bodies of authority the
power to take action and it lays down the procedures to be followed in taking such action and controls
such procedures.
Discussion of concepts
1. State
2. Executive
3. Government
4. Public administration
5. Civil works
 16th
centu
Private Law ry Public Law
divide
What is it?
Basis of equality
Government body
Voluntary basis
Divide At least one
increasingly party organ of Government
What about difficult to state (bears and body
relationships between illustrate exercises state
parent and child? Are authority)
they relationships of Or
authority?
Relationship of Government
-However, not state inequality body
authority
-all private persons
-not directed at public Individual
interests
 Government
authority In past this authority
had its source in
Law parliamentary
Confers powers sovereignty =
led to several abuses.
Today,
Constitution
confers these powers.

On Government / organs

Powers enable a
unilateral and Not like
unequal relationship private law
between organs and individuals. contract
LO2: Define ‘public administration’.

Part of the Executive

Not clearly defined
S195 : Constitutional role of Administration
Public administration concerned with implementation of legislation and
of policy.
 BY PUBLIC ADMINISTRATION:

“Organs and functionaries of the executive branch of the state that are
concerned with the day-to-day business of implementing law and administering
policy.”

This excludes the central executive (Cabinet, President, Deputy President,

Premiers and Executive Councils)

This includes government departments (Education, Finance, Health, Home

Affairs, Trade and Industry at national and provincial levels). Security forces,
parastatal (cultural bodies, quasi non-governmental organisations or ‘quangos’
such as Telkom, Eskom, Transnet, Health Professions Council of SA, SABC,
SALRC).

JUDICIARY LEGISLATURE EXECUTIVE

 INCLUDES:

TELKOM
ESKOM

SABC

CONTROLLED BY GOVERNMENT
LO3: Identify the organs of the government that form part of the
public administration, with reference to relevant case law.

1.Define organ of state?

2. Administration can be divided into 3 spheres. Name them?
3. Discuss relevant case law?
DISCUSSION

TB 71-73
LESSON:
1. Whether administrative action?
2. Nature of the function is critical to determine administrative action.
 STATE

LEGISLATURE
EXECUTIVE
JUDICIARY Three levels on which
legislation is passed:
Section 85 of 1) National Legislature
Constitution: (Parliament) = laws
President and for whole country.
Courts
Cabinet. 2) Provincial
Administrative law Legislature = laws
falls under executive for matters falling
but excludes within functional
President and areas.
Cabinet. Therefore 3) Municipal Councils =
all other entities. by laws
LO4: Give an overview of the development of administrative law in
South Africa by focusing on the impact with which the Constitution has
had from the pre-democratic era to modern day administrative law.

Different periods:
1. pre-constitutional
2. Constitutional
3. Enactment of PAJA
Pre - Constitutional : 3.5 TB 74

Within Common Law

Framework of Parliamentary Sovereignty
Judicial review, courts inherent jurisdiction
Constitutional: 3.6 TB 75

S33 1996 Constitution: Right to just administrative action

What constituted an administrative action?
Lawful,reasonable and procedurally fair.
Entitled to written reasons
 This answers the question of the
influence of the introduction of the
1994 democratic Constitution on
Administrative Law

Pre-Constitution Constitution

Sovereign parliament replaced by

Sovereign parliament Constitution

Courts prevented from

Can now be done
pronouncing on parliamentary
legislation – ouster clauses
Any law in conflict
Thus, the laws that with Constitution is
sanctioned the state now invalid – thus
authority were not laws that sanction
subject to scrutiny by state authority
courts and led to subject to provisions
injustice of Constitution
 Pre-Constitution Bill of Rights

Courts test all legislation

Court’s power of review against bill of rights in all
based in common law. administrative cases.

Exercise of authoritative power

Parliament could override
subject to greater control by
this common-law power
courts
of review.

Furthermore, administrative justice

entrenched as fundamental right in
Section 33

Only has to prove one of rights in

Had to prove common
Bill of Rights infringed.
law or statutory rights
were infringed
Roman v Williams: indicate that
constitutional right interpreted more
generously than Common law right
Theme 2: The Constitution and
Administrative Law
PM:
Chapter 1
(paras 1.2.1.1 and para 1.7)
Chapter 2
(paras 2.3, 2.4 and 2.6)
The Constitution, 1996 – sections 33 and 195
LO

LO5: Discuss the sections in the Constitution,1996 which are most

significant to administrative law and what they entail.
LO6: Compare the fields of administrative law and constitutional law.
LO7: Assess the current state of administrative law and its challenges.
LO5: Discuss the sections in the Constitution,1996 which are
most significant to administrative law and what they entail.

S 1(c) ,S33, S195

TB: 33,34,35
 -Section 8
BOR applies to all law and binds the legislative,
judiciary and executive and all organs of state
Application
8. (1) The Bill of Rights applies to all law, and binds the legislature, the executive, the
judiciary and all
organs of state.
(2) A provision of the Bill of Rights binds a natural or a juristic person if, and to the extent
that, it is
applicable, taking into account the nature of the right and the nature of any duty imposed
by the
right.
(3) When applying a provision of the Bill of Rights to a natural or juristic person in terms of
subsection (2), a court -
(a) in order to give effect to a right in the Bill, must apply, or if necessary develop, the
common
law to the extent that legislation does not give effect to that right; and
(b) may develop rules of the common law to limit the right, provided that the limitation is
in
accordance with section 36(1).
(4) A juristic person is entitled to the rights in the Bill of Rights to the extent required by
the nature of
the rights and the nature of that juristic person
Section 32: Right of access to any information. Section 32
states that national legislation had to be enacted to give
effect to this right – Promotion of Access to Information
Act.
Right to information is of particular importance to the
judicial review of administrative action. For example, a
person who alleges that his or her right has been infringed
by administrative action may call on the body concerned
to supply the information needed that has a bearing on
the exercise or protection of the right in question. Section
32 does not provide for access to all administrative bodies
or agencies, and the provision of information is limited to
information that the individual requires for the exercise or
protection of his or her rights.
Section 33:Concept of administrative justice as contained in section 33
plays a most important role in ensuring that the administration adheres
to the basic requirements of justice in the performance of its functions.
-Administrative justice ensures justice for the
individual and private bodies in their relationships
with administrative organs of state
-Section 33 – National legislation states that
national legislation had to be enacted – Promotion
of Administrative Justice Act
Access to courts
34. Everyone has the right to have any
dispute that can be resolved by the
application of law decided in a
fair public hearing before a court or,
where appropriate, another
independent and impartial tribunal or
forum
-Section 39
When a court of law, tribunal, or forum interprets BOR, it must promote the values that
underlie an open and democratic society based on human dignity, equality and freedom.

-Section 195
Public administration must be governed by the democratic values and principles
enshrined in the Constitution.
These principles include: the provision of service on an impartial, fair, and equitable basis
without bias; accountability of public administration, transparency, and management
practices based on ability, objectivity, fairness, and the need to redress the imbalances of
the past to achieve broad representation.
These principles apply to administration in every sphere of government, organs of state,
and public enterprises.

-Section 239 defines an “organ of state”

 Administrative action provided for in
Section 33 of the Constitution
Just administrative action

33. (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.
LO6: Compare the fields of administrative law and
constitutional law.

CLASS DISCUSSION
 Constitutional
Law
• Regulates interaction between organs of
state of three branches of government.

• Regulates powers of President and his

cabinet as well as powers of judiciary.

• Higher executive bodies fall within sphere

of Constitutional law (PRESIDENT AND
CABINET, DEPUTY PRESIDENT,
PREMIERS AND EXECUTIVE COUNCILS)
 But what is Administrative law?
•OVERLAPS IN THAT IT: Forms part of public law

• ALSO CONCERNED WITH ORGANS OF STATE AND

THEIR INTERACTIONS WITH CITIZENS

• DIFFERENCE?
-DIFFERENCE IN FOCUS ON ENTITY: Emphasis on
particular branch (public administration part of
executive – excluding higher executive) AND
-DIFFERENCE IN FOCUS ON ACTIVITY OF STATE:
Administrative Action.
 STATE

LEGISLATURE
EXECUTIVE
JUDICIARY Three levels on which
legislation is passed:
Section 85 of 1) National Legislature
Constitution: (Parliament) = laws
President and for whole country.
Courts
Cabinet. 2) Provincial
Administrative law Legislature = laws
falls under executive for matters falling
but excludes within functional
President and areas.
Cabinet. Therefore 3) Municipal Councils =
all other entities. by laws
CON L

ESTABLISHMENT AND STRUCTURING OF GOVERNMENT

DIVISION OF STATE POWER
LEGIS , EXE AND JUD
CONSTI FRAMEWORK FOR POLICY
ADMIN L

DAILY BUSINESS OF GOVERNMENT

IMPLEMENTING AND ADMINISTERING OF POLICY
EXERCISE OF DELEGATED POWER.
SUBORDINATE LEGIS WITHIN ORIGINAL LEGIS.
LO7: Assess the current state of administrative law
and its challenges.

2.6
CONCERNS:
1. DEMOCRATIC LEGITIMACY
2. SEAPARATION OF POWERS
3. PARTY POLITICS
4. EXECUTIVE FUNCTION?
 IF IT IS NOT ABOUT THE
FUNCTIONARY BUT RATHER
ABOUT THE FUNCTION BEING
ONE OF PUBLIC POWER AND
PUBLIC FUNCTION

HOW DO WE DEFINE PUBLIC

POWER?
TAKE INTO ACCOUNT:

1. WHETHER ACTIVITIES ARE GOVERNMENTAL – BUT NOT

NECESSARY TO STRICTLY AND LITERALLY ADHERE TO THIS.
2. EXTENT OF STATE INVOLVEMENT AND CONTROL
3. PUBLIC FUNDING.
4. SOURCES OF POWER
5. EFFECT ON PUBLIC

HOWEVER, CANNOT HAVE A TEST THAT IS TOO LITERAL,

FORMALISTIC OR MECHANICAL. PUBLIC POWER IS RATHER THE
DUTY TO ACT IN THE PUBLIC INTEREST RATHER THAN FOR PRIVATE
PURPOSES. THIS INTEREST MAY GO WELL BEYOND GOVERNMENTAL
INTEREST.

NO SINGLE TEST OF UNIVERSAL APPLICATION!

 TYPES of
Administrative Law
1) PARTICULAR administrative power or function. For example
Immigration Act 13 of 2002 empowers immigration officials to regulate
the entry of persons into and out of the Republic. SOCIAL WELFARE,
LIQUOR LICENSING

2) GENERAL ADMINISTRATIVE POWER: Rules and principles

common to all or most kinds of administrative action. Umbrella
concept over particular administrative laws.

FOCUS OF THIS COURSE

- Describing powers of administration and how it must he exercised,

remedies for maladministration etc.
 General and specific administrative law

Specific = particular topic =

for example Social
Assistance Act regulates
granting of Social grants

General = Promotion of
Administrative Justice Act (PAJA)

Court gave effect to Section 33(3)

of the Constitution and adopted
PAJA
Theme 3: Administrative power:
General Overview
PM: Chapters 1 2
The Promotion of Administrative Justice Act 3 of 2000 (PAJA)
LO8: Distinguish between administrative law, administrative authorities
and administrative power.
LO9: Discuss the sources of administrative law and of administrative
power.
LO8: Distinguish between administrative law,
administrative authorities and administrative power.
LO9: Discuss the sources of administrative law and
of administrative power.

PAGE 65
1. CONSTITUTION
2. LEGISLATION
3. COMMON LAW
4. CASE LAW
LEGISLATION

1993 Interim Constitution

1996 Final Constitution
Promotion of Administrative Justice Act 3 of 2000 ( PAJA )
 1. LEGISLATION
•Majority of administrative law in statutes
The Constitution

• All legislation and executive, judiciary and legislature subject to it.

• Binds all organs of state.

• Primary source – all other legislation on administrative law must
be consistent with it.
• Section 2.
• Section 33 = right to just administrative action
• Authority of admin action can come from enabling legislation, as
well as Constitution.
 COMMON LAW
• Administrators perform actions for which no specific authority can be found
in legislation.

General constitutional duties

Non-prerogative (held in
common with natural
persons) – for example,
power to contract in the
absence of legislation
providing for it.

Definition of “empowering provision” in PAJA.