(4) Sources of Administrative Law PDF

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IND 2601

Sources of Administrative Law What are sources of law?! The “sources” of law are the places where we can find the legal rules, norms, principles and values that govern a particular branch of the law. The “sources of law” refer to the sources of public authoritative power. As a reference to the source of power — that the PAJA refers in section 1 to an “empowering provision”. The state authority to act, in terms of administrative law, must therefore authorised in a specific source of law. Administrative power is not “self-generating”, but is conferred by law. “Public authorities possess only so much power as is lawfully authorised, and every administrative act must be justified by reference to some lawful authority for the act”. The power to act must therefore be authorised, mostly in terms of legislation. Note that not all the sources of law have the same authority. Some laws are more authoritative than others, hence the distinction between the laws that have binding authority and those which merely have persuasive authority.

Sources of Administrative Law! Binding or Authoritative Sources: 1. The Constitution of the Republic of South Africa The 1996 Constitution, with its entrenched Bill of Rights, is the supreme law of South Africa. The constitution is also the principal source of power. No other law, whether it is legislation, case law, common law and customary or indigenous law or conduct may be in conflict with the Constitution. Section 2 of the Constitution reads: Supremacy fo the Constitution “This Constitution is the supreme law of the Republic; any law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.” The supreme Constitution is thus not only by far the most important statutory source of administrative law, but the most authoritative source as well. The supreme Constitution also serves as a check on (public power) since the exercise of such power must be in line with the Constitution. The implications of this supremacy for administrative law are twofold:

• First, as the supreme law, the Constitution sets the standard for the exercise of powering thus the actions of every organ of state or functionary or institution in South Africa.

• Secondly, the constitution promotes and guarantees a culture of human rights. In the administrative-law context, the Constitution insists injustice for the individual by commanding that all the requisites for valid administrative action, lawfulness, reasonableness and procedural fairness must be met. The constitution therefore guarantees the right to just administrative action to any individual in terms of section 33.

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IND 2601 • 2. Legislation Legislation is the primary source of administrative power. Administrative law is a relatively modern branch of public law. Since legislation is “readily accessible and knowable” (Du Plessis 2002:22), it logically follows that administrative power has almost always legislations as a source. All legislation must comply with the provisions of the Constitution, however. Although the Constitution sets the standard for conduct, it obviously cannot deal with every aspect of interaction between authorities and individuals. Parliament — the legislature — is often expressly instructed to adopt legislation to give effect to a constitutional provision. Legislation adds flesh to the bones of principles, norms and values expressed in the Constitution. We distinguish between original and delegated legislation: a. Enabling (original) legislation — enabling (original) legislation is passed by Parliament in the national sphere of government. Two examples of Acts Parliament that complement the provisions of the Constitution and are crucial to Administrative law as well, are: a. The Promotion of Administrative Justice Act 3 of 2000 (PAJA) b. The Promotion of Access to Information Act 2 of 2000 (PAJA) (see section 32(2) of the Constitution)

NOTE: PAJA, read along with section 33 of the Constitution, is the principle Act that regulates administrative law. Most aspects of this area of law therefor dealt with in the Act. If a certain administrative-law principle is covered by PAJA, then that would be your main authority, read with section 33 of the Constitution. Original legislation is also passed by the nine provincial legislatures int he provincial sphere fo government in terms of section 104, read with Schedules 4 and 5 of the Constitution. In the local sphere of government, original legislature is also passed by elected local governments, the municipal councils. A local government has the power to enact by-laws that do not conflict with the Constitution or any parliamentary statute or any applicable provincial statute terms of section 156(2). In Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council 19998 (12) BCLR 1458 (CC), 1999 1 SA 374 (CC), the Constitutional Court said (paragraph 38): “The constitutional status of a local government is materially different to what it was when the Parliament was supreme…” The constitutional court concluded that these by-laws constitute original legislation.

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IND 2601 b. Delegated Legislation — this is also called “subordinate legislation”. The distinctive characteristic of delegated legislation is that it must be enacted in terms of regional legislation. Such legislation must be authorised by the enabling or empowering (original) legislation. Such delegated legislation must not conflict with the provisions of the enabling Act. Du Plessis (1998:2C-19) explains that the objective of delegate. Legislation is to regulate matters provided for by the original legislation in broad outline only. He explains further (ibid): “Organs of the executive are often in a better position to deal with certain matters once the parameters within which it is competent for them to do so have been set empowering, original legislation.” Regulation through delegated legislation is often resorted to when the matters to be regulated are of a specialised or technical nature. In the national sphere of government, delegated legislation is passed by functionaries who are empowered to make these rules. Examples are:

• Proclamations of the president (in his/her executive capacity), such as proclamations issued in terms of the empowering statute to declare the date of commencement of a particular statute.

• Regulations made by ministers (the members of the cabinet in the national executive) in terms of an enabling statute.

3. Case law (or judicial precedent) It is the task of the courts to determine the meaning of a particular legal rule, that is, to interpret a legal rule in line with the prescripts and values of the supreme Constitution and relevant statute law and to apply such rules to concrete particular factual situations. Note, specifically, that the interpretation of statutes, such as PAJA, by the courts is an essential part of administrative law; some core principles, as stated in PAJA, are defended and clarified by the courts. An even more important role of the courts is to control the exercise of public power and the performance fo public functions by organs fo site, functionaries and institutions. In Pharmaceutical Manufacturers Association of South African: in re Ex parte President of the RSA, Chaskalson P held that the change brought about by the new constitutional disposition meant that the courts “no longer have t claim space and push boundaries to find means of controlling public power. That control is vested in them under the Constitution, which defines the role of the courts, their powers in relations to other arms fo government and constraints subject to which power has to be exercised (para 45). Remember that because past judgments are binding on other courts in subsequent cases — the judicial precedent (stare decisis) rule — it is obvious that case law forms a material source of administrative law.

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IND 2601 4. Common law Common law is not an important source of South African administrative law. The main sources of administrate law are the Constitution, PAJA and other legislation. English law in particular, and Roman-Dutch law to a lesser extent, have both contributed to the development of administrative law. Two examples of common-law rules of English-law origin are: (1) the principle of ultra vires and (2) the development of the rules of natural justice.

5. Administrative practice (custom or usage) Custom is made up of unwritten rules or fixed practices, which communities have carried down from generation to generation and which they regard as binding. African customary law also forms part of the broad definition of custom. This is acknowledged by PAJA through the inclusion of “customary law” in the definition of “empowering provision” in section 1. A custom must meet certain requirements before it is recognised as such:

• It must be reasonable • It must have existed over a long period • It must be generally recognised, accepted and observed by the community • The content of the custom must be certain and clear Can administrative practice or custom acquire the force of law? It would appear, though, as if the definition of “empowering provision” in section 1 of PAJA includes such circulars and directives with its reference to “.. an instruments or other document in terms of which an administrative action was purportedly taken”. Remember that custom as a source of administrative law is the exception rather than the rule. Common law and custom are subject to the Constitution.

6. Ubuntu Professor Emeritus George Devenish briefly explained the meaning of Ubuntu: “Ubuntu means humanness (see S v Makwanyane 1995 (6) BCLR 665 (CC)) and it was acutely reflected in the preservation and stability of the whole community. Ubuntu before, underlined the entire basis of their intricate code of social laws.” Constitutional court judge, Yvonne Mokgoro, explains that ubuntu serves “as the basis fo a morality of co-operation, compassion, community-spiritness and concern for the interests of the collective, for others and respect for the dignity of personhood; all the time emphasising the virtues of that dignity in social relationships and practices”. (S v Makwanyane par 208) Ubuntu takes seriously the view that man is essentially a social being. Ubuntu style management, as well as the introduction of cooperative an supportive form of management in which the collective solidarity of various groups employed is respected and enhanced. Ubuntu is a social survival technique that developed from socio-economic and demographic circumstances in which people had to cooperate to survive. The interim Constitution stated the need for Ubuntu, but unfortunately this authentic African concept does not feature in the current Constitution.

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IND 2601 7. International law International law regulates the relationship between states and/or international organisations. It comprises mainly of treaty law and international usage. In terms of the Constitution, international law is an equally important source of law. As far s administrative law is concerned, however, it plays a lesser role. Nevertheless, should it become necessary to look into international law, we have to examine what sections 39(1)(b), 2331to 233 of the Constitution prescribe in this regard.

Persuasive Sources: 1. Writings in books and journals expressing academic opinions The courts often refer to academic opinions expressed in law journals and books

2. Policy documents, such as Green and White Papers Current government policy on various topics is expressed inso-called White Papers and Green Papers. In these document, the government’s policies on a vast range of matters are set out. A Green Paper, is a consultative document. In a participatory democracy, the people should participate in our governance. Through Green Papers the people are incited to comment on various matters to be regulated by the government. A White Paper is the final document in the process, which includes the expression of the government’s commitment to something, the action that will be taken and the implementation of the policy. A White Paper is the blueprint of the government’s policy on various matters.

3. Reports by “state institutions supporting constitutional democracy”, such as reports of the Human Rights Commission These institutions, such as the Public Protector and the Auditor-General, also called Chapter 9 institutions — report on administrate conduct and make recommendations to the legislature on how to cure any maladministration or abuse in the exercise of authoritative power.

4. Foreign law Section 39(1)(c) of the Constitution states that the courts may consider foreign law. They may choose whether to turn to the laws of other countries to assist them in cases where insufficient guidance from South African law is available. By foreign law, we mean the law that is found in the law (case law in particular) of countries such as the USA, Germany, Canada, India and Namibia.

NOTE: from section 33 of the constitution and the provisions in PAJA are intended to regulate administrative law in South Africa. The most important rules and principles that apply to this area of law are covered in these provisions.

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Where to find Administrative-law sources! • If you are looking for legislation, you may consult with any of the following: - Government Gazettes published an dprinted by the Government Printer - A loose-leaf annual collection of statutes published by LexisNexis/Butterworths - The internet

• If you’re looking for case law, there are a number of places to fins case law relating to administrative law and administrative matters, including the following:

- South African Law Reports - Butterworths Constitutional Law Reports (BCLR)

• If you’re looking for articles dealing with administrative law topics, there are published in several journals, including the following:

- Southern African Public Law (SAPL) - South African Journal on Human Rights (SAJHR

• If you’re looking for policy documents and the reports of government institutions and you have access to the internet, you may access them on the government’s website.

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