Administrative Law

Lecture 1
 Important Information

• Prescribed Textbook: Quinot, G et al Administrative Justice in

South Africa (2020 2nd edition) Oxford University Press.
• Slides, Learning Outcomes and Prescribed extra reading.
• Tutorial Sessions
• Lecture Preparation
 Administrative Law?
(Chapter 1)
• To explain the nature or essence of administrative law = no easy task. Why? covers
such a wide field; filters through every part of the legal system and its presence is
felt in everyday life.

• Where does it fit:

Public law

Constitutional Law

Regulates the power of the executive through law

 Definition

• Admin law is that part of constitutional law which

both empowers those exercising public authority or
performing public functions through the law, and
which holds accountable to rules of law all those
who exercise public power or perform public
functions (p 3)
• Overlap between administrative law and constitutional law BUT not the same thing:

• - Constitutional law = the state at rest Administrative law = state in motion.

• - Constitutional law concerned with the establishment and structuring of government

as well as the separation of powers. It creates a framework for original legislation and
policy giving effect to it to be enacted and interpreted.

• - Administrative law concerned with the day to day business of the government
which includes the enactment and implementation of policy in its legislated form.
 Admin Law
=
Administrative law is the regulation of activities
of bodies that exercise public powers or
perform public functions, irrespective of
whether those bodies are public authorities in
the strict sense.
 The Admin Law Puzzle

Common PAJA
Law Constitution
 Sec 33 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.

Promotion of Administration of Justice Act 3
0f 2000 (PAJA)

PAJA was enacted to give effect to the right to

just administrative action under S33 of the
Constitution. Accordingly, one must rely on
PAJA in order to give effect to the right to just
administrative action.
 NB APPEAL v REVIEW NB
A direct consequence of the constitutional separation of powers is the principle that the judiciary REVIEWS the procedural
regularity of the exercise of public power and does not hear APPEALS on the merits of the actions (Admin = Review).

Appeal is appropriate where it is thought that the decision maker came to the wrong decision based on the facts or the law
i.e. the MERITS and thus the second decision maker can change the decision of the first decision maker.

The basis for a review however is to evaluate the PROCESS in which the decision maker came to a specific conclusion.
Here the second decision maker can set aside the decision even if he believes that he would have reached the same
decision had the correct process been followed.

Judicial review occurs where a decision is made by an administrator and the person affected by such decision approaches
the courts to have this decision set aside.
 Review of Public Power

• There are several foundations under which one can review the exercise of public power, namely:

- PAJA

- Sec 33 of the Constitution

- The principle of Legality (reviewability of the exercise of public power that does not amount to
administrative action)

- Special statutory review

- The Common Law

 NB Order of Review NB

• The order in which review takes place is as follows:

• 1) PAJA and or special statutory review
• 2) S33 of the constitution
• 3) Legality and common law.
This is due to the principles of subsidiarity, avoidance
and that the general yields to the specific as well as the
notion that you start with direct and move to indirect.