ADL2601
Oct/Nov 2020
ADMINISTRATIVE LAW
Duration 2 hours 100 Marks

EXAMINERS:
FIRST Mr TA Manthwa
SECOND Dr A Anthony

This examination question paper remains the property of the University of South Africa
and may not be removed from the examination venue.

This paper consists of four (4) pages.

• Answer ALL the questions.

• Pay attention to the ALLOCATION OF MARKS and adapt your answer
accordingly.
• Refer to relevant CASE LAW and OTHER AUTHORITY.
• Please do NOT SEPARATE SUBSECTIONS of questions.
• Credit will be given to SYSTEMATIC PRESENTATION, GRAMMATICALLY
CORRECT LANGUAGE and reference to LEGAL AUTHORITY.

QUESTION 1

Read and refer to the scenario below in order to answer the questions which follow.

Mrs Enhle Sengwayo is a convicted prisoner serving a sentence of nine years’ imprisonment for
having committed tender fraud. After 18 months in prison, she was diagnosed with an incurable
and inoperable illness and is not expected to survive for more than a further 12 months. She
applies to be placed on parole on medical grounds in terms of section 69 of the Correctional
Services Act. The provision reads:

A prisoner serving any sentence in a prison –

(a) who suffers from a dangerous, infectious or contagious disease; or
(b) whose placement on parole is appropriate on the grounds of his or her physical
condition, or, in the case of a woman, her advanced pregnancy, may at any time, on the
recommendation of the medical officer, be placed on parole by the Commissioner,
provided that a prisoner sentenced to imprisonment for life shall not be placed on parole
without the consent of the Minister.
 
After applying for parole, Mrs Sengwayo’s application was rejected by the Minister of
Correctional Services. The grounds for refusal are, amongst others, that Mrs Sengwayo
generally does not look ill, that her matter is a high-profile case and the fact that she has served
less than one-third of her prison term. There is also the possibility that she will commit a crime

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again based on previous offences. Furthermore, the department’s policy guidelines include
when considering whether parole is in fact expedient on the grounds of her physical condition,
that such release does not stymie or curb the objectives of the Correctional Services Act.

When answering the questions below, remember to substantiate your answers.

1.1 Has Mrs Sengwayo been subjected to an administrative law relationship and if so, what
kind of relationship is present? (4)

1.2 Does the action taken in the scenario constitute administrative action? (5)

1.3 The rules of natural justice require that the administrator should be impartial. Discuss
whether bias is present in the above set of facts. (7)

1.4 Would the Minister of Correctional Services be able to change his or her decision?
Discuss with regard to the rules of the functus officio principle (the task having been
completed). (5)

1.5 Explain your understanding of the concept of Ubuntu and whether you think it plays a
sufficient role in the current constitutional framework. (4)

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QUESTION 2

In the multiple-choice questions below, only one of the options in each question is correct.

2.1. The Minister’s decision in the set of facts is an example of a… (2)

(a) legislative administrative act;

(b) judicial administrative act;
(c) true administrative act;
(d) executive administrative act

2.2 The principles and values of section 195(1) of the Constitution, titled “Basic values and
principles governing public administration”, relates to just administrative action as
guaranteed in section 33 of the Constitution. In terms of section 195(2) the principles
listed in section 195(1) does NOT apply to… (2)

(a) public enterprises;

(b) the judiciary;
(c) the administration in all spheres of government;
(d) the Department of Correctional Services

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2.3 The general rule regarding the delegation of powers is that the administrator who has
authority to take administrative action must exercise that authority himself or herself.
This principle was confirmed in the case of … where Innes ACJ stated the following:

“Where the legislature places upon any official the responsibility of exercising a discretion which
the nature of the subject-matter and the language of the section show can only be properly
exercised in a judicial spirit, then that responsibility cannot be vicariously discharged.” (2)

(a) University of Pretoria v Minister of Education 1948 4 SA 79 (T);

(b) SA Freight Consolidators (Pty) Ltd v Chairman, National Transport Commission 1987 4
SA 155 (W);
(c) Foster v Chairman, Commission for Administration 1991 4 SA 403 (C);
(d) Shidiack v Union Government 1912 AD 642

2.4 The general rule regarding the delegation of powers is that the administrator who has
authority to take administrative action must exercise that authority himself or herself.
However, section 238 of the Constitution makes provision for the delegation of powers
under certain circumstances and there are various forms of delegation, including (2)

(a) ministerial;
(b) legislative;
(c) judicial;
(d) instruction

2.5 Which one of the following is NOT a ground for judicial review in terms of section 6 of
PAJA? (2)

a. The action was materially influenced by an error of law;

b. The administrator acted in accordance with provisions relating to time;
c. The action was taken on account of unauthorised reasons;
d. The action contravenes the law

2.6 Explain what a legislative administrative act is and indicate when such an action takes
effect or becomes operative.
(7)

2.7 Assume that no reasons were provided for the rejection of Mrs Sengwayo’s parole
application and a request for reasons is made. The minister responds by stating that: “I
want to make an example of you that money does not buy everything?” Do you think that
this response provides an adequate reason? Substantiate your answer with reference to
case law.
(8)

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QUESTION 3

3.1 If the Minister decides to depart from the requirements of a fair procedure as permitted
by the Promotion of Administrative Justice Act 3 of 2000 (PAJA), the Act lists certain
factors to consider when determining whether such a decision is reasonable and
justifiable. List these factors.
(5)

3.2 The Commissioner may decide to follow a different procedure, subject to certain
circumstances. Briefly mention the relevant provision(s) in the PAJA that permits such
an alternative procedure and the relevant requirements for the alternative procedure.
(7)

3.3 Was the Minister obliged to provide Mrs Sengwayo with reasons upon her request for
reasons? Substantiate your answer with reference to the relevant provision(s) in the
PAJA.
(6)

3.4 What would the result be if the Minister failed to provide Mrs Sengwayo with reasons
after she had requested them? Substantiate your answer with reference to the relevant
provision(s) in the PAJA.
(4)

3.5 Under which circumstances would the minister be allowed to refuse to furnish reasons?
Substantiate your answer with reference to the relevant provision(s) in the PAJA. (3)

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QUESTION 4

4.1 Explain what parliamentary control entails with reference to the Constitution.
(8)

4.2 List four “chapter 9 institutions”. (4)

4.3 What are the powers of senior administrators when exercising internal control? (4)

4.5 Which form of judicial control would you suggest to Mrs Sengwayo? Provide reasons for
your answer and limit your answer to two forms of judicial control. (4)

4.4 Explain what the constitutionalisation of administrative action and judicial review entails.
(5)

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TOTAL: {100}
©
Unisa 2020

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