Dear Students

Please take note of the information below regarding Test 1. The marking memo is also available
as an attachment.

Regards

Admin Law Lecturers

Admin Law Test 1– 13 April 2022 Marking memorandum

• Please note that this is a guide to the lecturers. Lecturers had discretion especially
when it comes to theory questions depending on the response given by the student
on a particular question.
• Student responses must be clear, complete, understandable and appropriate.
• Students should study the memo carefully so that you come prepared for any
consultation on the test with the lecturer that set/marked your script; (Dr Fola Adeleke
& Dr Paul Kaseke (email: paul.kaseke@wits.ac.za) for Questions 1&2 and Dr
Khulekani Moyo for Questions 3&4).
• The course coordinator WILL NOT deal with scripts marked by colleagues (i.e. to
discuss their scripts with the students).
• Students have until 10th May 2022 to consult on the test scripts, after which the script
consultation period closes, and Admin Law lecturers will no longer be in a position to
consult on the test script.
• Please read any comments by the lecturer in your scripts carefully and work towards
addressing the limitations in the way you respond to questions, so that you do not
repeat same mistakes and lose marks in subsequent assessments.

Question 1

The Court in Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs & Tourism held “The
grundnorm of administrative law is now to be found in the first place not in the doctrine of ultra
vires, nor in the doctrine of parliamentary sovereignty, nor in the common law itself, but in the
principles of our Constitution. The common law informs the provisions of PAJA and the
Constitution and derives its force from the latter.”

Discuss the above excerpt with reference to other case law.

[5 marks]
Marking Memo

The central focus of this excerpt is the common law and its relationship to the PAJA and the
Constitution. Students were thus expected to discuss the evolution of the common law in South
African Administrative Law cases while linking it to various aspects incidental to it. This should at
the very least, include an appropriate discussion of the SARFU v President of RSA and the
Pharmaceutical Manufacturers’ Association (PMA) cases. The PMA is particularly key to this
discussion because O’Regan J places a lot of importance on it and cross references it in the Bato
Star judgment. The question essentially asked students to consider the evolution of the common
law from being the primal basis of review (as the sole cause of action) to its current three-fold role
as a pathway of review, a source of administrative law and as a tool of interpretation. A nuanced
discussion on this shift from the past to the status quo was required.

Common mistakes for this question:

1. Giving an extensive general history narrative discussing the transition from Apartheid
South Africa to democratic South Africa.
2. Simply regurgitating/paraphrasing the quote or other portions of the judgment with no
critical analysis.
3. Copying and pasting other judgments with no source attribution or paraphrasing. This
would be an instance of plagiarism and while we did not flag this, we did not award marks
for this either. What was required was an engagement of the material in your own words
to demonstrate that you understood the work at hand.
4. Plagiarism of class slides. Similar to point 3 above, some students merely copied out
chunks of the class slides for this question. Again, this constitutes plagiarism, and you are
discouraged from this practice.
5. Discussing portions of the judgments not relevant to the focal discussion points.
6. Engaging in an administrative action enquiry. This was only required in Question 2.

It is important to pay attention to the question and what it required as this was often overlooked
with the result being that the focal point was missed.

Question 2

Patrick Karaga, a Rwandese citizen, relocated to South Africa in 1995 shortly after the genocide
in Rwanda ended in 1994. He has resided continuously in South Africa since then despite having
been found to be inadmissible to South Africa on security grounds in 1999. The finding of
inadmissibility was based on his alleged membership in the Rwandan Liberation Front (RLF), an
insurgency group whose aim was to topple the new democratic government of Rwanda. RLF had
been designated a terrorist group by the Department of International Relations, but Karaga has
always denied he is a member of the RLF. Karaga married a South African citizen in 2005. Based
on section 27 (g) of the Immigration Act which provides, ‘the Department may issue a permanent
residence permit to a foreigner of good and sound character who is the relative of a citizen or
resident’, Karaga applied in 2018 for permanent residency and the decision remains pending.
However, Karaga came into the media spotlight due to the recent discovery by the Rwandan
government that Karaga resides in South Africa and the Rwandan government wants Karaga to
be deported to Rwanda to face possible charges of organising a failed coup plot against the
President. If convicted, Karaga would face the death penalty. Consequently, the Minister of Home
Affairs directed the Chief Director of Immigration to write a recommendations memo on how to
deal with the Karaga matter. The Chief Director recommended the deportation of Karaga due to
his membership of RLF. Without citing the memo, the Minister issued a statement to the media
stating that she is exercising her powers in terms of the Immigration Act of 2002 and has denied
Karaga’s application for permanent residence and concluded that Karaga is a prohibited person
as defined in the Immigration Act which includes ‘anyone who is or has been a member of or
adherent to an organisation or association utilising crime or terrorism to pursue its ends.’ Karaga
requires some guidance on two points of law:

2.1 The powers to grant or withdraw permanent residence is granted to the Department of
Home Affairs. Is the Minister’s decision relying on the Immigration Act administrative
action?

[5 marks].

2.2 With attention only to the following PAJA language – ‘which adversely affects the rights of
any person, and which has a direct, external legal effect’ - does the Chief Director’s memo
constitute administrative action?

[5 marks]

Marking memo:

Regarding Q2.1

In discussing an administrative action enquiry, it is important to have regard to the following

principles:

1. The approach to the enquiry must be consistent with s33 of the Constitution. Note the
caveat in para 35 of Motau which refers us back to the s33 tests formulated by the CC in
SARFU and New Clicks etc. The Court specifically noted ‘As a starting point… the
definition of administrative action under PAJA must be “construed consistently” with the
right to administrative justice in section 33 of the Constitution. As section 33 itself contains
no express attempt to delimit the scope of administrative action it is helpful to have
reference to jurisprudence regarding the interpretation of that section’
2. The tests developed in cases like SARFU, ED-U-College etc. are therefore essential in
the enquiry to ensure consistency with s33 jurisprudence but they are insufficient in
addressing an admin action enquiry without reference to the PAJA. One would, at some
point in the enquiry, discuss the narrow and broad policy formulation of identifying admin
action as described in SARFU. Additionally, one would be expected to discuss the
difference between executive action and policy decisions (executive action vs
administrative action which filters into the administrative decision part of the PAJA test set
out below).
3. Stopping the enquiry at this stage would mean that you have disregarded the PAJA test.
 4. The PAJA test is required for an administrative action enquiry because of the principle of
subsidiarity which is given significant attention in Bato Star. As the designated vehicle
enacted to give effect to the right to administrative justice, the PAJA is the default
mechanism by which administrative conduct is reviewed. To escape PAJA’s ambit, one
would have to satisfy that the PAJA is excluded or not applicable. Remember, avoidance
of the PAJA is not desirable nor is it encouraged.
5. The principle of subsidiarity requires that you engage the legislation first before you
contend with the general constitutional provision. Specific norms should always be
addressed before general norms hence the PAJA is the default review mechanism.
6. The PAJA test is set out in Grey’s Marine, Sokhela and Motau. In terms of precedent
value, Motau is preferable to the other two cases (it is more recent, and it is a CC
judgment). The approach followed in those cases is similar and groups the elements of s1
(the PAJA admin action definition) into 7 elements.
7. Each element of the test must be discussed briefly and applied to the facts.

General comments & common mistakes for this question:

1. Make sure that your case engagement is more than just citing a case- you need to grapple
with what the case deals with and what the outcome from that case is so that can be
applied to your own facts. All the requirements for the PAJA test have received attention
in decided cases – engage these cases and tease out the principle which can be applied
to your facts. Remember simply placing a case in brackets without discussing it does not
count as case discussion or engagement.
2. Remember to apply the law to the facts. While there is a lot of theory that you must engage,
this does not change the fact that this is a problem-type question where you are expected
to ultimately resolve the problem given to you.
3. Several students left out the PAJA enquiry and focused solely on s33 jurisprudence. Refer
to the comment on the principle of subsidiarity in the administrative action enquiry above.

Regarding Q2.2

Here, students were expected to discuss the Grey’s Marine Hout Bay (Pty) Ltd case for the
principle that rights ought not to be taken literally in reading the requirement. It was also possible
to discuss cases from the CC that have dealt with the requirement in some detail.

Additionally, reference to para 23 regarding the qualification ‘adversely affect the rights of any
person’ when seen in conjunction with requirement of ‘direct and external legal effect’ should be
noted in relation to the legislative intention that administrative action is action that has capacity to
affect legal rights. Grey’s Marine is not the only case to discuss this and any other case from the
SCA or CC would suffice. Check your class reading list and textbook for other cases that have
been relied on for this requirement.

In dealing with ‘direct, external legal effect’, students were expected to explain the meaning of
this concept with reference to Walele. It was also possible to engage Grey’s Marine, Joseph,
Union of Refugee Women & Others and other similar cases in this regard.
General comments

1. Some students misconstrued the question or focused on aspects not posed by the
question.
2. Generally, this question was done relatively well, and most students were able to engage
the relevant case law.

Question 3

Katoh is aggrieved because his application to renew his taxi license has just been declined by the
administrator. In terms of the empowering legislation, the administrator may grant or refuse a
renewal based on the applicant’s suitability to continue holding such a license. Although Katoh
has herself held a taxi licence for five years, and has a clean record, the administrator found her
unsuitable to continue holding such a license. This was because, Katoh’s sister, Bellah, who used
to answer the phone and take messages for Katoh when she started her taxi business five years
ago, was recently convicted of drunk driving. In exercising its discretion, the administrator sought
the advice of a highly respected senior official Talah, who heads the agronomy department in the
Department of Agriculture, Land Reform and Rural Development. Talah said that in her opinion
the application should be turned down, and the administrator duly took this opinion into account.

With reference to relevant case law, advise Katoh as to her best two grounds for challenging the
administrator's decision. You should assume that the decision amounts to administrative action
in terms of the Promotion of Administrative Justice Act 3 of 2000 (PAJA), that procedural fairness
was observed, and reasons were given.

[5 marks]

Marking memo

First ground [2,5 marks]

• Section 6(2)(e)(iii) of the PAJA is available as a ground of review where an administrator

has either failed to take into account relevant considerations or has taken account of
irrelevant considerations.
• The administrator took into consideration the conviction of Katoh’s sister, Bella, which was
an irrelevant consideration.
• The administrator failed to consider the relevant consideration in assessing Katoh’s
suitability – that she has held a taxi license for 5 years and has a clean record.
• Relevant case law include Eskom Holdings Ltd v New Reclamation Group (Pty) Ltd.
Students could refer to any other relevant case.

Second ground [ 2,5 marks]

 • Administrators are allowed to take advice from each other or from the public, but they
remain personally responsible for exercising their discretionary power i.e., the
administrator must apply their mind – see Tantoush, Walele or any other relevant case.
• The administrator took the decision under the influence of Talah with no evidence that the
administrator applied their mind.
• Section 6(2)(e)(iv) of PAJA provides that administrative action will be unlawful if it was
taken because of unauthorised dictates of another person or body.

Other possible grounds that students can consider

• Section 6(2)(d) of PAJA – the decision must be taken on a correct interpretation of the
law
• Catch-all provision of ‘otherwise unconstitutional or unlawful’ in section 6(2)(i).

General Comments

• Some students simply lost marks by simply reproducing the PAJA grounds without
explaining how they applied to the facts of the matter. The question required students to
advise Katoh and this entailed an identification of the relevant ground and a clear and full
explanation on how such ground was applicable to the facts of the case. Simply listing the
PAJA review grounds thus did not earn students full marks.

• Some students lost a mark due to failure to refer to the relevant case law. The question
was very clear on the need to refer to relevant case law.

• Some students expended considerable time discussing the rationality and

reasonableness grounds of review. No marks were given for discussing any other grounds
outside the lawfulness grounds as the test scope was clear on that score.

• Some students adopted a short-gun approach by simply listing all the conceivable grounds
under section 6 of PAJA. Where a student discussed more than two grounds, the lecturer
marked the first two grounds and ignored the rest. The question was clear on the need to
only discuss what the student considered to be the best two grounds for challenging the
administrator’s decision.

• Some students simply reproduced my slides- a practice that borders on plagiarism. The
School reserves its rights to institute appropriate proceedings against such students as
the instructions were clear that this was a closed book test. The same applies to those
students who simply reproduced verbatim material from prescribed readings.

Question 4
In the absence of express authority to subdelegate, identify and explain, with reference to relevant
case law, any two factors which tend to influence a court’s decision to permit an administrator to
subdelegate its powers.

[5 marks]

• The starting point is that the administrator may not pass on the power to anyone else -
encapsulated under the common law principle - delegatus non potest delegare

• However, under common law, a number of factors have emerged that can serve as
indicators that a statute tacitly allows for delegation. [4 marks for identifying and fully
explaining any of the two below]

i. The degree of devolution of the power

ii. The importance of the original delegate

iii. The complexity and breadth of the delegation

iv. The impact of the power

v. The practical necessities

In Minister of Trade and Industry and Others v Nieuwoudt and Another or any other relevant case
[1 mark for referencing case law]

General comments

This was an easy question but a significant number of students failed to get full marks for a range
of reasons, including:

• Some lost marks as they expended time explaining the concepts of delegation and sub-
delegation and completely ignored the question;

• There was no need to discuss sec 238 of the Constitution nor the PAJA provisions on sub-
delegation - section 6(2)(a)(ii) – there was no extra marks for that as the question was
straight-forward on what it required the student to do to earn full marks;

• Some students failed to properly read the question – the question required the students
to identify and explain two factors. Simply listing the factors without a full and proper
explanation did not get students full marks;

• Some students simply summarised the facts or issues in case law such as Clicks case or
other case law BUT failed to address the question- resulting in loss of marks;

• Similar to question 3, some students failed to get full marks by simply listing the factors
but failed to explain the factors as enjoined by the question; and
 • Some students lost a mark by omitting to make reference to relevant case law as required
by the question.

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