PBL310%20TEST%201%20 Cripnotes PDF

Preview

Summary

PBL 310 Test Cripnotes...

Description

JOLENE PRETORIUS BA LAW ALUMINI/ LLB 3RD YEAR PBL310 CRIPNOTES:

1. WHAT DOES ADMINISTRATIVE LAW ENTAIL: ●

● ● ●

●

Admin law may be broadly defined as the body of legal rules intended to achieve Administrative justice by regulating and controlling conduct that amounts to Administrative action as defined in Section 1 of PAJA Admin action is a subset of public power that is exercised in the course of administering the affairs of the state (in day-to-day running of the state) Admin law is founded in Sec 33 of the Constitution which prescribes the right to just administrative Action for any private person (as determined in the SITA/GIJIMA precedent) Admin law is a part of public law because it is fundamentally concerned with regulating behaviour and activities of entities that exercise public power and public function by means of law as a part of Constitution law. Admin law also entails constitutional law since it concerns with the interaction between organs of state and persons within the state.

2. WHAT ARE THE AIMS AND OBJECTIVES OF ADMINISTRATIVE LAW: ● ●

●

●

Since it is part of Public – and constitutional law it is essentially aimed at achieving just administrative action. It does so by empowering public administrators to perform public power and public functions and regulating its conduct to ensure that it complies with the duty to respect, promote, protect and fulfil the S33 Constitutional right to just administrative action and also by ensuring that decisions made by public administrators are lawful, reasonable and procedurally fair. In the situation where these decisions materially and adversely affects the rights of persons within the country, it also provides for the provision of written reasons by the public administrators who took the decision. One of the aims of Administrative law is to achieve social justice post-1994.

3. WHAT IS THE RELATIONSHIP BETWEEN ADMINISTRATIVE JUSTICE AND THE CONCEPTS OF SOCIAL JUSTICE IN TRANSFORMATIVE CONSTITUTIONALISM: ●

●

The Relationship can be found in the accountability it promotes since Administrative Justice as set out in the S33 Constitutional right requires that written reason be provided for administrative action which materially and adversely affects rights of persons and this requirement prescribes that administrators be able to explain decisions. S33 promotes a culture of justification which is one of the goals of transformative constitutionalism. Since Transformative Constitutionalism has to tie achievements of social justice as one of its goals for the new constitutional dispensation, it is dependant on the well-functioning and regulated administration to achieve this goal, meaning that transformative constitutionalism, social justice and administrative law are mutually supporting. In other words = they work together to achieve a Democratic, participatory and egalitarian society in which there is just and fair access to an equitable distribution of opportunities, resources, privileges and burdens in groups or between groups.

4. ROLE OF THE COURT IN ADMINISTRATIVE JUSTICE: ● ● ●

In terms of S165 of the Constitution, the judicial authority over the SA state is vested in the courts. The courts have a duty to interpret and apply the constitution and law impartially and without fear, favour or prejudice. In terms of the doctrine of Separation of Powers the courts as the judiciary have a constitutional obligation to ensure that the exercise of power by all branches of government takes place within 1

JOLENE PRETORIUS BA LAW ALUMINI/ LLB 3RD YEAR constitutional bounds. At the same time, the judiciary must also not act beyond their limits and interfere within the powers and functions of the other branches of government. ● The courts are involved in Administrative law through the process of judicial review in terms of which it can scrutinize administrative actions to determine whether it conforms with the S33 Constitutional right to just administration. ● In terms of S195 of the Constitution there is a duty of public administrators to conduct themselves in accordance with the values and principles of the Constitution. ● S172 of the Constitution consequently provides that the court may declare any conduct or law that is inconsistent with the constitution (thus also S33) invalid. ● S217 of the Constitution prescribes a duty on public administrators to contract for goods and services in a manner that is fair, equitable, transparent, competitive and cost effective. ● In the event that an issue relating Administrative action / justice does not comply with the S1 PAJA definition of Administrative action; S33 consequently cannot apply and the courts must use the rule of law as provided for in S1(C) of the Constitution as well as the principle of legality and its procedures that it entails to scrutinize administrative action. ● Judicial review is essentially concerned with the judicial detection / diagnosis of the improper exercise of administrative power or failure to perform administrative function. ● Judicial review is also concerned with the correction of improper exercise of Administrative powers or the failure to perform administrative function. ● Courts must balance the rights of those adversely affected by administrative action, the interest of promoting an efficient administration and duty of the state to respect, promote, protect, and fulfil the right to just administration. ● Judicial review can only be practiced in terms of PAJA / S33 of the Constitution if the action in question fulfill the definition of administrative action as set out in S1 of PAJA. ● Alternatively, if the action is non-administrative the court can apply the rule of laws S1(c) principle of legality to scrutinize the action – although courts have been using the principle of legality even in matters relating to administrative actions.

5. LAWS REGULATING PUBLIC POWER ●

●

S33 of the Constitution – right to just Administrative action - Foundation for Administrative Law - Main constraining / prescriptive source of Administrative law. - Impose a duty on the public administrators to ensure that the exercise of public power is lawful, reasonable and procedurally fair. - Prescribes that where rights have been adversely affected public Administrative must provide written reasons for decision. PAJA - S1 – Definitions *excludes definition of ‘public’ found in S4 of PAJA. - S2 - S3 – Prescribed requirements that must be satisfied to give effect to right to procedurally fair administrative action where the action adversely affects rights. - S4 – Terms ‘public’ defined and also considerations Public administrators must make when someone’s right is adversely affected. - S5 – Provisions of reasons / possible resources within timeframe when rights are adversely affected. - S6 – Any person may institute proceedings in court / tribunal for judicial review of Administrative action (limits / boundaries of Admin). (list 9 circumstances / grounds upon which administrators conduct may be challenged in judicial review). - S7 – Sets out procedure for judicial review. Reasonable time. External remedies exhausted. 2

JOLENE PRETORIUS BA LAW ALUMINI/ LLB 3RD YEAR - S8 – Just and equitable orders which court may grant in judicial review. - S9 – Extension / Reduction when time period required is more than or less then required / allowed. ● Constitution - S1(c) – (Rule of law). Speaks for the supremacy of the Constitution. Principle of legality is derived from this section. Principle of legality is an aspect of the foundational value of the rule of law as set out in S1(c) of the Constitution. - S165 – Duty of Public Administrative to conduct themselves in accordance with the values and principles of the constitution. - S217- Duty of Public Administrative to contract for goods and services in manner that is fair, equitable, transparent, competitive and cost effective. - S32 – Duty on Public Administrative to provide access to information held by them. - S172 – Duty on courts to declare any conduct inconsistent with the constitution invalid to the extent of inconsistency – meaning in line with S195’s duty court can declare conduct invalid under S172.

6. CONSTRAINING SOURCES V EMPOWERING SOURCES: ●

●

●

*Remember that the nature of an entity / functionary itself is not decisive in determining whether the power / function can be regarded as public. Instead, it is the nature of the power / function concerned which is decisive in establishing whether it can be public or private power. Private companies can also perform public power. Constraining / Prescriptive sources - Constrain / regulates the exercise of public power because they define the boundaries that is the limit of what the Administrator who exercise Public power may do. - Main constraining source of public power in administrative law are PAJA / S33 of the Constitution and the Rule of Law set out in S1(c) of the Constitution, along with requirements of legality it demands. Empowering Sources - Specific sources of administrative law usually contained in original or delegated legislation, policy or other legal instruments. - S1 of PAJA, empowering provisions as a law, rule of common law, customary law or an agreement instrument or other documents in terms of which an administrative action was supposedly taken. - Empowering sources include specific laws and policies that have to be implemented by specific administrators in a specific manner that is consistent with the constitution over PAJA.

7. DIFFERENT CONSTRAINING SOURCES 1) The Constitution as a constraining source - The provisions of constitution itself can be a source of constraint on public power due to its supremacy as set out in S1(c) of the Constitution. - In other words the constitution can be classified as a constraining source of public power because it regulates the exercise of public power by administrators insofar as it prescribes their duties and defines the boundaries or limits of their powers. S1(c) of the Constitution - Sets out the key founding value namely Rule of Law with which the exercise of public power must comply to be valid.

3

JOLENE PRETORIUS BA LAW ALUMINI/ LLB 3RD YEAR - Rule of law requires legality / application of the principle of legality *in non-administrative cases that do not comply with S1 of PAJA definition of administrative action. S32 of the Constitution - Imposes a duty on administrators to provide access to any information held by them. S33 of the Constitution - Imposes a duty on public administration to ensure that the exercise of public power is lawful, reasonable and procedurally fair. - Where rights of persons have been adversely affected by administrative action, the public administration must provide written reason. S172 of the Constitution - Places a duty on the court to declare any law or conduct that is inconsistent with the constitution invalid to the extent of its inconsistency. S195 of the Constitution - Prescribes the democratic values and principles that must be taken into account by Administrative when exercising public power. - Imposes a duty of public administrator to conduct themselves in accordance with the values and principles of the constitution. S217 of the Constitution - Places a duty on administrators to contract for goods / services in accordance with a system that is fair, equitable, transparent, competitive and cost effective. 2) PAJA as constraining source. - PAJA was enacted to give effect to S33 of the constitution. Together these sources are amongst the main constraining sources of administrative law. - Since PAJA applies to and regulates all administrative action it can be described as the general source of administrative law insofar as all administrative action has to comply with the rules set out in PAJA. Exception: Organs of State - In the case of STATE INFORMATION TECHNOLOGY AGENCY V GIJIMA HOLDING the court confirmed that conduct of juristic should comply with the principle of legality as embodied in S1(c) of the Constitution rather than PAJA. - In this case the court concluded that PAJA does not apply when an organ of state applies for review of its own decision and that an organ of state seeking review of its decision should do so under the principle of legality. - Court said that an organ of state is the bearer of obligation under S33 NOT the holder as the right can only be enjoyed by private persons. Sections of PAJA SECTION 1 : DEFINITIONS - Explains the meaning of key concepts / definitions * public definition in S4 SECTION 2: SECTION 3: PROCEDURALLY FAIR ADMINISTARTION ACTION AFFECTING ANY PERSON - Prescribes requirements that must be met to give effect to the right to procedurally fair administration where administrative action adversely and materially affects rights of the public. SECTION 4: ADMINISTRATION ACTION AFFECTING PUBLIC - Public is defined in a narrow sense as any group or class of people. - Describes consideration administrator must make when deciding to give effect to the right to procedurally fair administration action where an administration action materially and adversely affects the right to the public. SECTION 5: PROVISION OF REASON 4

JOLENE PRETORIUS BA LAW ALUMINI/ LLB 3RD YEAR - Provides that written reason must be given when an administrative action adversely and materially affected the rights of a person. - Set time frames in which administrators must respond to aggrieved. - In the event that written reason cannot be given the aggrieved person must be informed of the decision to depart from requirement of written reasons where the departure is reasonable and justifiable in the circumstance. SECTION 6: JUDICIAL REVIEW OF ADMINISTRATION ACTION - Provides that any person may institute review proceedings in a court / tribunal for judicial review of administration action. - Provides grounds under which the court / tribunal has a power to review administration action. - Regulates the exercise of public power by defining the limits or boundaries of administrative powers. SECTION 7: PROCEDURE FOR JUDICIAL REVIEW - Requires that all internal remedies be exhausted before administrative action can be challenged in judicial review proceedings. - Requires that judicial review proceeds be bought within a reasonable time. - Requires administrator to respond to requests of aggrieved persons before matter is taken to court. SECTION 8: REMEDIES FOR PROCEEDINGS FOR JUDICIAL REVIEW - Sets out carious just and equitable orders a court / tribunal may grant in judicial review proceedings. - Requires Administrator to exercise public power in a just and equitable manner rather than having court decide in judicial review proceedings that conduct by Administrator is unlawful, unreasonable and / or procedurally unfair and granting order in favour of aggrieved but against administrator. SECTION 9: VARIATIONS OF TIME - Prescribe the circumstances under which a reduction / extension of certain time prescribed is allowed. 3) Common Law as constraining source - It sets out boundaries and limits of Administrative Law.

8. DIFFERENT EMPOWERING SOURCES Empowering sources contain provisions that confers power on specific administrators. Also specifies the content of such powers and the manner in which the power should be exercised. 1) The Constitution as an Empowering Source - Provisions in the Constitution itself are often the source of authority enabling provisions for the exercise of public power. - In other words it is the Constitution which confers specific powers upon the specific administrator and provides the manner in which such power should be exercised. - The Constitution has had a significant impact on the development of the Administrative Law. - By virtue of the founding value of the Constitutional supremacy the constitution takes precedence over any other law including legislation and the common law. - The Constitution binds all organs of state: S239 of the Constitution defines an organ of state to include any functionary institution, other than a court or judicial officer that exercises a public power or performs a public function in terms of legislation. 2) Legislation as an Empowering Source - It is the primary means by which administrative bodies and officials derive their power. ● ●

5

JOLENE PRETORIUS BA LAW ALUMINI/ LLB 3RD YEAR - Supremacy of Constitution requires that all legislation must be consistent with the constitution. - The empowering provisions in various statutes that authorize or constrain the exercise of public power also constitute legislative source of public power. 2.1) Original Legislation / Primary Legislation - Legislation enacted by parliament in provincial legislator or in municipal council in accordance with the power given directly by the constitution to make such legislation. - Usually authorises administrator to exercise public power or to perform public functions such as making rules, awarding licences, charging fees or appointing and dismissing staff. 2.2) Delegated Legislation - Legislation that is made under the authority of original legislation or by delegated legislation. (May delegate authority to exercise public power.) - e.g. Regulations made by cabinet Ministers or Proclamations made by President in terms of powers that are delegated to other administrative officials. 3) Common Law as an Empowering Source - Administrators may sometimes perform actions, the source of which lies in common law powers possessed by state. - MINISTER OF PUBLIC WORKS V KYALAMI RIDGE ENVIRONMENTAL ASSOCIATION CASE. ฀ -

-

-

States power to settle flood victims on land derived partly from its ownership of the land and its

common law power to deal with the land it owed. While in the PHARMACEUTICALS MANUFACTURES ASSOCIATION CASE the CC confirmed the statutes of common law as an important interpretive and supplementary resource and in the BATO STAR case the judge held that even if the common law principles applied it had to be consistent with the constitution in order for them to offer any assistance in the interpretation of provisions of PAJA. The continually relevance of PAJA has to be determined on a case by case basis. While the courts have not used common law as a constraining source itself, they have on occasion used the common law as an empowering source of administrative authority on such instance where NO legislation exists regarding the governmental ability to contract. In such instance the contractual right of administration is regarded as an incident of its common law powers. In terms of S1 of PAJA contracts / agreements concluded by the administration fall within the meaning of an empowering provision and are recognised as an empowering source of administrative authority. Judicial review in terms of SA Administrative law focus on right based review in respect of public power and common law review as the exception.

9. RELATIONSHIP BETWEEN DIFFERENT SOURCES AND CASELAW Sources of Administrative law do not operate independently Courts reviewing public power of specific Administrative in terms of empowering sources (which could be a specific , original or delegated legislation , policy or other legal instrument) ● Using sec 33 of Constitution PAJA or the principle of legality as a constraining source the court will determine whether the exercise of Public power allocated to administrator by empowering source complies with the standards of relevant constraining sources (firstly PAJA sec 1 and then the Constitution section) STATE INFORMATION TECH AGENCY V GIJIMA HOLDINGS CASE: ● Case where the court had to decide whether an organ of state can seek to have its own conduct reviewed and set aside in terms of PAJA ● CC held that PAJA does not apply to when an organ of state seeks to review its own decision – on interpretation of sec 33 and PAJA CC held that an organ of state cannot be a beneficiary / holder of a right because it is only enjoyed by private persons and organs are the bearer of obligation under sec 33 ● ●

6

JOLENE PRETORIU...