Public Law Units 1 to 6 PDF

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Public Law Units 1 to 6 sufficient for study material for tests and exams. ...

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PUBLIC LAW PART A CHAPTER ONE 1) 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. Within the context of this view, how can the phrase “public powers and functions” be described within South African administrative law today? (10) The Nature and Scope of Administrative Law -

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Administrative law has been described broadly as a branch of public law that regulates the legal relations of public authorities, whether with private individuals and organisations or with public authorities. In South Africa today, however, it is more accurate to regard administrative law as regulating the activities of bodies that exercise public powers or perform public functions, irrespective of whether those bodies are public authorities in a strict sense. The Constitutional Court has described administrative law as ‘an incident of the separation of powers under which the courts regulate and control the exercise of public power by the other branches of government’. What gives a particular power or function a public rather than a private character is thus a question that lies at the very heart of our administrative law. It crops up in all sorts of contexts, from privatization to the meaning of ‘administrative action’ and the reach of procedural fairness.

Public Powers and Functions -

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South African law supplies no easy answer to the interesting question what it is that makes a power or function ‘public’. As in English law, the public or private nature of the entity itself is by no means decisive and the focus thus falls mainly on the nature of the power being exercised or the function being performed. The theme continues to be addressed by the courts in an incremental fashion – very often with reference to English law, which played a commanding role in south Africa's constitutional history, and sometimes also to the position in the United States and Canada, jurisdictions that have Constitutional similarities with South Africa today. Recent comparative discussions of the topic are to be found inter alia in the majority judgment of the Constitutional Court in AAA Investments (Pty) Ltd v Micro Finance Regulatory Council and in that of the SCA in Calibre Clinical Consultants (Pty) v National Bargaining Council for the Road Freight Industry.

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When seeking to establish the scope of judicial review the courts of England, the United States and Canada have all tended to associate ‘public’ powers and functions with conduct and activities that is ‘governmental’. The South African courts have not often resorted to this terms and in AAA Investments Skweyiya J seemed to regard the governmental inquiry as an unnecessary one. However, while conscious of this and of the more expansive approach taken in recent HC decisions, the SCA nevertheless adopted a governmental inquiry in Calibre Clinical Consultants. In his unanimous judgment Nugent JA insisted that our courts have almost always sought out features that are governmental in kind when considering whether conduct is reviewable. In cases concerning the scope of judicial review, what has been considered relevant both here and abroad is: -the extent to which functions concerned are woven into a system of governmental control or -integrated into a system of statutory regulation or -that the government regulates, supervises and inspects the performance of the function or -it is a task for which the public, in the shape of the state, have assumed responsibility or -it is linked to the functions and powers of the government. Some of the factors mentioned here have certainly found acceptance in our courts. For insurance, the extent of the state involvement and control over the power or function – or, to use the terminology of the CC, the absence of the autonomy one associates with a private enterprise – is an especially important consideration in decision whether it is of a public nature. However, it would be a great mistake to apply the governmental test too literally or too narrowly, for public seems to have a broader meaning than governmental, and in the South African context public power has been associated with a fairly wide range of characteristics. For instance, public power has often, and rightly been associated with a duty to act in the public interest or in pursuance of a public duty rather than for private purposes and here public interest and public duty may well go beyond a strictly governmental interest. Other considerations regarded as relevant in our jurisprudence include the source of power, whether it is exercised consensually or coercively and its effect on the public – though it seems that a mere interest in the activity on the part of the public is unlikely to play a decisive role. Thus, as the authors of De Smiths Judicial Review suggest, a broad and flexible approach is indicated and mechanical or formalistic reliance on any one or more of these criteria should be avoided. Ultimately, as Nugent JA himself acknowledged in Calibre Clinical Consultants, there is no single test of universal application to determine whether a power or function of a public nature.

2) With regards to the focus of administrative law, administrative law differs from constitutional law in its emphasis on one particular branch of the state system, the public administrations, and on a particular branch of the state system, the public administrations, and on a particular activity of the state: administrative action. Describe in detail these two constituting factors (public administration and administrative action) of administrative law (10) The Focus of Administrative Law -

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Like public power, administrative law is itself a difficult concept to capture in definition. For that reason no attempt will be made to define administrative law precisely. The field of administrative law overlaps to a considerable extent with Constitutional law, which is also concerned with organs of state and their interaction with citizens. The relationship between the two fields are not coextensive. Administrative law differs from constitutional law in its emphasis on one particular branch of the state system, the public administration, and on a particular activity of the state: administrative action. This type of action has been pithily detectives the the SCA as the conduct of the bureaucracy … In carrying out the daily functions of the state which necessarily involves the application of policy, usually after its translation into the law, with direct and immediate consequences for the individuals or groups of individuals. A neutral definition of bureaucracy has been offered by Jowell, who resists both the idealized meaning and the pejorative connotations of colloquial usage. For him bureaucracy is a system of consciously coordinated activities on the part of the two or more persons for the achievement of administrative objectives. By contrast, the public administration is a more technical term. It is generally understood to mean the 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. The term does not usually cover the high policy making organs of the executive, sometimes called the central executive: the Cabinet, the President and the Deputy President and, at provincial level, the Premiers and Executive Councils. However, it does cover all the government departments, such as Education, Finance, Health, Home Affairs and Trade and Industry, whether at national or provincial level. The Constitution makes it clear that the public administration encompasses the public service, or the employees of government departments. It also covers the local government administrations, the security forces and the many parastatal or fringe organisations to be found in the modern state. These bodies, which include public enterprises, regulatory boards, cultural bodies and other entities wholly or partly controlled by government, are also known as quasi non-governmental organisations or quangos. Examples, Telkom, Eskom and Transnet, the Health Professions Council of South Africa, the South African Broadcasting Corporation and the South African Law Reform Commission.

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In the past administrative action was a phrase used loosely, if used at all, to describe the conduct of the public administration. In the democratic era, however, the term has acquired a very specific and technical meaning, for the constitutional rights to administrative justice are attached – and confined – to this type of action. Like other areas of public law, administrative law has an intimate relationship with the Interpretation of legislation – the Interpretation of statutes, to use its older name. The reason is that when deciding cases in administrative law the courts are frequently required to consider the nature and extent of the administrators powers; and, legislation is by far the most prolific source of administrative power. Although lawyers have often been reluctant to admit it, administrative law has a close relationship with disciplines such as political science and the study of public administration. Unlike the study of public administration, administrative law focuses mainly on legal methods of controlling administrative power rather than on the sort of issues of interest to management science. Nevertheless there is a considerable overlap: both disciples are concerned broadly with effective public administration and with ways of controlling and improving it.

3) Describe the difference between particular and general administrative law (5) Aspects of Administrative Law -

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Particular or ‘sectoral’ Administrative law deals with the rules and principles that have developed in specific and specialized areas of administration such as social welfare, liquor licensing, immigration and road transport. General administrative law expounds the rules and principles common to all or most kinds of administrative action, and is usually what people mean when they talk of administrative law without qualification. Cane points out that the two approaches are not mutually exclusive. General administrative law could be described as the “regulation of regulation”. According to Baxter, it consists of the general principles of law which regulate the organization of administrative institutions and the fairness and efficacy of the administrative process, govern the validity of and liability for administrative action and inaction, and govern the administrative and judicial remedies relating to such action or inaction. The most important legal machinery of general administrative law in this country consists of the Constitutional rights to administrative justice and the triumphal legislation that was enacted in order to affect those rights, the PAJA.

4) Describe in detail the domain of administrative law (10) The Domain of Administrative Law -

Administrative law covers a vast area, because it is potentially relevant whenever there is any action involving the use of public powers or the performance of public functions.

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As Baxter explains, administrative law is ubiquitous: it is a branch of law that permeates virtually every facet of the legal system. For instance, it applies to public procurement, all forms of licensing, town planning, expropriation, the provision of education and health services, the allocation of welfare benefits, the collection of taxes, the arrest and prosecution of criminal suspects, the protection of the environment, the regulation of the economy and any number of other areas of governmental activity. The multifarious powers that government exercises today in its dealing with individual have been described as filled by the Bland Committee of Australia: There are powers to admit or accept and to refuse or reject claims, powers to grant less than the maximum of a prescribed benefit, powers to determine degrees of disablement, powers to delete beneficiaries for benefit and powers to seize and forfeit goods. In all cases the administrative bodies concerned are subject to a mass of rules and principles. There are, however, differences in the degree to which these various functions are under the control of courts of law. A fundamental debate in administrative law is how far the administrative process ought to be regulated by law. The principle reason for the vast spread of administrative law is that there has been tremendous growth in the power, influence and activists of the state over the last hundred years and more. The twentieth century saw great expansion of public power into what were formerly thought to be areas of private life, such as family relationships, consumer contracts and the ownership of property. That century also saw the emergence, in many countries of the world, of the social welfare or benefactor state, a model of governance in which the state is expected to play a positive and interventionist role in socio-economic regeneration and the welfare of citizens. In a benefactor state public power is exercised not merely to achieve internal order and defense against external threats, but also to engage in measures designed to achieve distributive justice. As the state attempts to secure social justice, the executive brands assumes immense power and the functions of the modern administration acquire an enormous capacity to affect the rights and liberties of the people. Although South Africa cannot now be regarded as a typical socials welfare state, and certainly was not one during the long years of white minority rule, the state has since Union 1910 tended to play an increasingly interventionist role in the social and economic life of its citizens. In particular, the implementation of the governments apartheid policy and its security apparatus requires massive regulation. Together with the delegated legislation associated with them, infamous statutes such as the Black Administration Act and the Population Registration Act were parts of a vast system of institutionalized segregation and oppression. Few areas were left untouched by apartheid and as the CC describes it the lives of South Africans were almost entirely governed by administrative regulations which amongst other things, prohibited freedom of movement, controlled access to housing, education and jobs.

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It is unrealistic to suppose that the demise of apartheid has diminished the extent of state intervention in the lives of South Africans. New areas of legal activity are always emerging. Example, labour law, once the preserve of private lawyers, where state regulation has now been used extensively in an attempt to balance the values of fairness and efficiency in industrial relations. Public procurement is an area of enormous importance in South Africa today, while the policy of black economic empowerment (BEE) has given rise to burgeoning area of regulation. Today the reach of administrative law is even longer. Constitutionally speaking, our setup ensures that government cannot be released from its human rights and rule of law obligations simply because it employed the strategy of delegating its functions to another entity. The domain of administrative law has been and remains a considerable one. However, the advent of the democratic era has had the effect of reducing it in one respect at lease. The Constitutional recognition of a profusion of fundamental rights means that there is rather less work for Administrative law review to do than in the past: it's social function has diminished accordingly.

5) Describe the development entitled “goal administrative law”. (5) • • •

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The emerging field of global administrative law (GAL) is concerned with the global application of principles associated with administrative law. This new area of scholarship and legal practice responds to a worldwide shift in regulatory practices from the national to the global level. As explained by leaders of the GAL movement, over the last few decades there has been a great increase in trans governmental and transitional regulation and administration in fields ranging from trade and banking to law enforcement and environmental protection. Entities such as the World Trade Organisation, the World Bank and International Monetary Fund have proliferated. The problem is that these entities are not under the control of the states party to the treaty. This has created an “accountability deficit” to which GAL responds in two main ways: 1. By extending principles of national or domestic administrative law to the global level and; 2. By developing new mechanisms of administrative law that lend themselves to global governance and the “global administrative space”.

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The concept of GAL was introduced to South Africa at a workshop hosted by the Faculty of Law at the University of Cape Town in March 2008.

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Papers for the conference identify competition, labour and environmental regulation as important areas of global administrative activity in the southern African context. Themes already on the GAL research agenda in the region include trade and finance, telecommunications, the power and influence of global sporting bodies, and the right to basic necessities such a water.

6) Describe in detail the impact of the Constitution on Administrative law. Refer to the pre- democratic era and review at common law as well as the Constitutional provisions of significance to administrative law today. (20) THE PRE- DEMOCRATIC ERA AND REVIEW AT COMMON LAW •

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Prior to the coming into the force of the interim Constitution, judicial review was the primary and the only significant control on the use of administrative power in this country. The chief alternative, a chaotic set of administrative appeals, was not represented for its independence or its rationality, and the only safeguards in the administrative process were an Auditor- General and an Advocate- General. A more reliable form of redress was s judicial review, where the Supreme Court used it’s inherent power to t delegated legislation and administrative decisions on grounds established at common law. In the case of Johannesburg Consolidated Investment Co Ltd v Johannesburg Town Council, common- law jurisdiction as follows:

“Whenever a public body has a duty imposed on it by statute, and disregards important provisions of the statute, or is guilty of gross irregularity or clear illegality in the performance of the duty, this Court may be asked to review the proceedings complained of and set aside or correct them. This is no special machinery created by the Legislature; it is a right inherent in the Court.” • • •

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In the use of this inherent review jurisdiction the various divisions of the Supreme Court developed a body of principles that came to be called administrative law. The relied heavily on the English administrative law that was part of South Africa’s heritage, and to a lessor extent on principles of Roman- Dutch law. While Roman- Dutch law was fruitfulness in the area of judicial remedies and also provided principles of interpretation, the influence of English constitutional doctrines and grounds of review was enormous. The doctrine of parliamentary sovereignty, also inherited from English law, was ...