The Control of Administrative

Power
Faculty of Law
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INTRODUCTION & BACKGROUND

– This is about how administrative action is controlled or improved – to achieve ‘administrative justice’
and loosely speaking ‘good
governance’.
– What are the characteristics & goals of ‘administrative justice’ or ‘good governance’:
• Efficient, transparent, responsive, accountable state;
• Service delivery; Transformation; Impartiality; Substantive equality
– What are the ways in which this can be achieved?
a. Judicial control/supervision b. Internal administrative appeal
c. Legislative oversight d. Public participation
e. Ombuds-institutions (or persons) f. The right to access to information
– "QUEST for integrated system of Administrative Law" - focus not only on judicial remedies, but also on
having effective systems in place
to ensure administrative justice or ‘good governance’
• Boosted by the enactment of the democratic Constitution & PAJA
• Allows for a Responsive Democracy:
– Participation by ‘citizenry’
– Accountability by the government of the ‘citizenry’

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TYPES OF CONTROL OF ADMINISTRATIVE POWER

(a) JUDICIAL CONTROL

Judicial review is the dominant form of control of administrative power in

RSA (influence of English law)
• 2 types of systems: normal courts (English law) or specialist courts for
admin disputes (France, Netherlands)
• RSA: review in normal courts, possibility in PAJA for specialist courts but
not presently in place
• Consider: Why the need for other forms of control of administrative power

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b) INTERNAL ADMINISTRATIVE APPEALS

– Reconsideration of decision by someone higher in same hierarchy

– May also include policy considerations and grounds are broader than judicial review
– Theoretically cheaper and quicker, not always in practice
– Must follow before court is approached
– General principles:
• Administrative action REMAINS VALID until revoked by administrative body or set aside on review
• FIRST follow any internal appeal procedure
• S 7(2) PAJA:
• Internal remedies must be exhausted, unless the court decides differently to ensure justice, court may
refer back
– Some difference between INTERNAL APPEAL & JUDICIAL REVIEW (JR)
• APPEAL – the considering the appeal ‘will step into the shoes of the original decision-maker [and] decide
the matter
anew]. JR = merely tests the legality of decision
• APPEAL is internal, while JR is external check

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Types of internal appeal bodies
• Within the same administrative hierarchy. Appeal to a higher-ranking official. E.g. Ito
the Schools Act, a parent of a
learner can to the HoD of the provincial depart of education against the decision of the
school governing body. Can
even appeal to a Minister/MEC, see s9(4) of Schools Act.
• Appeal from local body / prov body to a national body
• Appeal to statutory tribunals, with differing levels of 'independence‘ (e.g. town
planning appeal boards)
– Advantages
• Perceived to be quicker and cheaper. Is it?
• Administration in best position to be expert judge of its own decisions, experts in field
• SOP respected
• Merits can be dealt with by people who know them best

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Disadvantages
• No coherent system applicable to administrators across the board in SA
• Not available in all administrative decision-making procedures
• Extent differs – determined by empowering legislation
• Lack of independence of decision-maker in many instances
• Time-frames can be long and unclear?
– Wide Appeals & Narrow Appeals
• Wide / broad power: appeal body will rehear/re-determine/reconsider the merits (with or
without new evidence)
• Good because illegalities committed by original decision-maker can be corrected
– Narrow power:
• Appeal body will reconsider merits, but bound by the original record/evidence
– Wide appeal will be favoured if:
• procedural powers of person handling the appeal equivalent to administrator
• Decisional powers are equivalent to that of administrator

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(c) LEGISLATIVE OVERSIGHT

– Legislative oversight is a consequent of a representative democracy

– Remember: SEPARATION OF POWERS, with Checks and Balances
– There mere act of legislating admin power (i.e. granting power to administrators) is control of admin
power = through
constraints on the exercise of that power
– Section 55 of Constitution: The National Assembly ‘must’ ensure that all organs of state in national
sphere are accountable to
it, as well as ‘maintain oversight’ over the national executive (including the implementation of legislation)
and any organ of
state. Is there a similar requirement ito provinces?
– Section 9(2) – Ministers must, individually and collectively (as cabinet), account to and provide full and
regular reports to
Parliament
– Hence Parliament has designed ‘question and answer’ requirements and Parliamentary debates
– How possible is this in a ‘Dominant Party Democracy’? Is SA a ‘Dominant Party Democracy’?
– What about capacity of legislators to do the accountability work?

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Is there a requirement for the Legislature to scrutinise, and even review,
delegated legislation? Theoretically, it
seems the legislature has this power. Practically? See s 101(3) & (4).
– The work of Parliamentary Committees (standing) – usually linked to
departments/ministry, as well as ad hoc
(temporary) committees put together to deal with certain issues. Also
specialised committees like SCOPA. Heads
of organs of state are regularly called to appear before these committees.
– Some Acts specifically call for Reports to be submitted to Parliament,
e.g. reports of chap 9 institutions