SzADMINISTRATIVE LAW (LAWS 4060) TUTORIAL 2

QUESTION 1 – AUTHORITY
In the instance where an administrator relies on the wrong provision even though he
genuinely possess the powers to act albeit in terms of another provision, how relevant is
the fault of the administrator (negligence and intention)? Refer to case law. (5 marks)

AUTHORITY – pg 260-261

PAJA + legality + common law: Authority tells us that in order to act you must be
authorised by an empowering provision – this reflects the position under the principle
of legality + common law. Otherwise you are acting ultra vires.
 Ground in PAJA? – section 6 (2)(f)(i): can review decision where admin took
decision without authority to do so, this is the starting point if admin takes a
decision but wasn’t empowered to do so by any provision
 Q? If action is mistakenly taken under wrong provision, is action valid if authority
for action exists elsewhere? What if took the decision under a certain provision that
doesn’t authorise him to do it, but there is a provision somewhere else that allows
him to do so – can we review this decision?
 If a decision is taken under a wrong provision we have 2 approaches:
o Broad approach
 If there is a valid authority (enabling provision) somewhere else – it
will validate the action taken under the wrong provision – Pinacle
Point Casino
 Confirmed in Latib – if the act doesn’t require administrator to say
what provision he is acting under then there is no need to mention the
section, even though it is desirable to do so. If the enabling provision
gives power to act – then the fact that it is under wrong provision,
wont invalidate the action.
o Narrow approach
 Administrator Transvaal v Quid Pro Quo – you cant depend on the
existence of another provision that authorises the admin, if he acts
deliberately under the wrong provision to validate the act. If it is
deliberate then cant depend on the other enabling provision
 Pinacle Point Casino – you will validate the act using the other
empowering provision, but once the admin does it deliberatey then
you cannot use the other provision to save your action.
 Both speak to intention, once it is deliberate you cannot use the other
empowering provision to validate it
o Hoexter says it is a balancing act
 balance must be struck between adhering to lawfulness and the
certainty for public interest
 vs. do we really have to fault administrators for a small
technicality/administrative error
o Howick District Landowners Association v uMgeni Municipality – says that
Latib doesn’t validate ultra vires. Just because Latib says you can use another
 empowering provision to validate the acts taken under the wrong provision
doesn’t mean we will validate ultra vires as a whole.
 Latib doesn’t licence unauthorised legislative/administrative acts, it
only licences/allows act when authority for act exists. Elsewhere &
failure to invoke expressly/accurately the source of the act is
immaterial to their due exercise
 Latib doesn’t validate ultra vires as a whole

QUESTION 2 – IMPLIED AUTHORITY TO SUBDELEGATE

With reference to case law, discuss the elements of the rebuttable presumption against an
implied authority to sub delegate. (8 marks)

Pg 269-272
The legislature will delegate to the minister, this is where the minister can subdelegate
to someone below him, maybe a senior official or D-G.
Subdelegation – from the minister (to whom already been delegated from legislature)

An act can have an express provision that says “you may subdelegate”
 Starting point – rebuttable resumption – delegatus delefare non potest – what does it
mean: those delegated do, can’t delegate further, "no delegated powers can be
further delegated". Speaks to:
o the legislature has given you a power, leg intended for YOU to have that
power,
o intended that YOU exercise that power yourself
o the exercise of that function/power does not include you subdelegating
(delegating it to someone else).

 If there isn’t express authority to subdelegate (in an implied situation) – you can
rebut the presumption by balancing practical necessity vs intention of the legislature
to delegate duties to specific people with specific skills

 Willingness of courts to approve an implied subdelegation will depend on 4 factors
(also using these factors to rebut the presumption). Court in every factor either
will/wont be likely to approve subdelegation, not clear-cut “likely to”
 4 factors and relevant cases:
1. Nature of the power
 If it is judicial/quasi judicial – court isn’t likely to say there is an
implied authority to subdelegate
 Shidiack v Union Gvt: immigrants coming into country, were
supposed to write a test, minister himself was supposed to
check these tests, so court said this had to be done in a judicial
spirit
 If it is law-making (legislate) powers – court not likely to allow a
subdelegation. The problem with law-making powers = they have far-
reaching consequences and so court is not likely – New Clicks, Aluchem
 New Clicks – minister had to come up with methodology for
pricing for medicine, wanted to subdelegate to DG, court said
no because you were given this specific role. So she could ask
 the pricing committee to advise her, but ultimately she had to
make the decision not the DG.
 So it if is a lawmaking power – because these powers are far-
reaching, the court is unlikely to say it is a subdelegation
 But if it is mechanical + the person is not given a wide-discretion
(given a strict list, if X then Y) + not subjectively phrased – court likely
will allow the subdelegation.
2. Extent to which power is transferred, sufficient control
 If the original delegate (Minister) still retains sufficient control over
the exercise of the discretion + the subdelegatee is given enough
guidelines for the exercise of the power
 SA Freight Consolidators v Chairman National Transport Commission
 Sufficient control by the original + guidelines – then court will be
likely to allow
3. Importance of subdelegatee
 If the subdelegatee is chosen for his qualifications, special abilities,
expertise then unlikely that will rebut the presumption
 Minister of Trade & Industry v Niewoudt – Minister had subgelegated
his task to an inspector to question businessmen, asked to further
subdelegate his task to advocates because would be better at
questioning. Court said no because minister chose inspector for his
abilities.
 New Clicks + Aluchem
4. Practical necessity
 Not practical for Minister to go through every form and check every
procedure
 Practical necessity will have to take preference over the intention of
the legislator
 Carltona v Commissioner of Works – Carltona principle:
o Powers given to ministers are normally exercised by officials
under the authority of the minister
o Normally things are done by the officials under the auth of the
minister
o Officals can act under the minister, in the name of the minister,
even though there is no express authority to subdelegatee.

QUESTION 3 – WALELE, UNLAWFUL REFFERAL + UNLAWFUL DICTATION

Discuss the different grounds of review brought forward in Walele v City of Cape Town
with reference to the reasoning of both O’Regan J and Jafta J. (5 marks)

NB to read Walele – summary on pg 275

 There are 2 ways to abdicate/usurp power.

o Unlawful dictation – someone dictates to you what to do, someone who is not
the decision maker tells the decision maker to do X
 o Unlawful referral – telling someone else to do it, and you’ll just rubber stamp
it.
 Contravenes principle that responsibility for exercise of discretionary power rests
with authorised power and no-one else, Both contravene the fact that the authority
to exercise a power lies with that authority
 Neither ground prevents administrator from consulting with other before making a
decision
 For both – there is nothing wrong with consulting, getting advice from someone else
with maybe better expertise in the area; but at the end of the day the person who is
meant to make the decision must apply their mind and make the final decision
 What ground would we use if we were saying the admin had an unlawful dictation
o Unlawful dictation – s 6(2)(e)(iv)
o Unlawful referral
 We have a catch all ground = passing the buck – where someone else
makes the decision other than the decision maker, so the decision
would be referred by an unauthorised administrator
 There is no ground in PAJA for unlawful referral so will fall into this
catch all ground

Walele
 Approval of building plans, guy wants to build 4 storey building, area isn’t zoned for
that (only for 7 storey buildings).
 Neighbour (W) says if you build it its going to cast a shadow + people sensitive
because of the value of the property
 Act says 3 people involved in the decision-making process: one of which is BCO
(building control officer) who will make recommendation to the final decision
maker. But final decision maker must still make the final decision.
 BCO made the recommendation gave it to the final decision maker, and the final
decision maker made the same decision as the recommendation. So it looks like the
BSCO dictated/unlawfully referred the decision-making.
 BCO gave recommendation, but final decision-maker must still apply his mind.
 Was there an unlawful dictation or unlawful referral?

JAFTA – majority = narrow approach

- Says it is an unlawful referral
- Says the decision maker couldn’t have possibly personally assessed everything. The
act says the decision maker must be certain that certain triggers/disqualifying
factors wont occur. This decision maker couldn’t possibly be satisfied that these
triggers wouldn’t occur. And if those triggers occur he must refuse to grant the
approval. And before the decision maker – there was only 2 pages in front of him. So
there was no way he could have been satisfied if only 2 pages in front of him.
- There was an unlawful referral between the BCO and the final decision maker. Said
the decision maker passed the buck, he didn’t want to make the decision so he
pushed it to the BCO to make it, and he would just rubber stamp it
- Said the decision maker should have made the decision while aware of all the facts.
Had to be satisfied that triggers wont occur.
- So the decision was basically made by the BCO
- JAFTA uses the ground of referral + passing the buck.
O’REGAN – minority = broad approach
- Mentions grounds of
o unlawful subdelegation
o unlawful referral
o the catch-all provision = unlawful and otherwise constitutional
- Seems to favour the Carltona principle – says there was not an unlawful referral
because the expertise of the BCO where such that, the decision-maker could make
considerable weight on his recommendation.
- So she favoured practical necessity - more practical to rely on an expert in the field
who is personally checking it

QUESTION 4 – What is an error of law? (2 marks) - JURISDICTION

- Wrong interpretation of a statute or if you misconstrue powers
- Occurs where admin relies on a mistaken/wrong interpretation of a provision or if
they misconstrue their powers
- The ground of review – section 6(2)(d)