08 March 2017

Week 5
Lecture 3 & 4
Guidelines to answer the questions
Required to know definition of :
- Administrator
- Administrative Action
- Affected Party
- Decision
- Empowering Provision

The Student’s guide to approaching Test & Exam case scenarios

In the event that you are confronted with an administrative matter- steps you
need to take:

1. Identify the enabling legislation or empowering provision applicable to the

case/case study.
This will usually be supplied in the exams or assignments i.e. extracts from the
Liquor Act, the Water Act, the Higher Education Act, the Refugee Act etc.
[This act will form the basis of your argument whether the conduct by an
administrator was lawful, reasonable and procedurally fair]. Use the Act with
PAJA to see if the Administrator acted within his powers, if the Administrator
was performing in a way that is lawful, reasonable, and procedurally fair.
 What is the enabling legislation or empowering provision?
 Empowering Provision- includes any powers received from the common
law, customary law, an agreement, another kind of document –
empowering provision is wider than enabling legislation
Example: Ethekwini Municiplaity contracts with a private company to
fetch the solid waste in the Durban area – this company is empowered
through the empowering provision in the contract with the Municipality.
This company is acting in terms of a contract therefore it is unlikely to
be public power.
  Enabling legislation- what legislation created this body? Example when
dealing with Organ of State- it is any state department because state
departments are created in terms of the Constitution or any functionary
created ito the constitution such as the Public Protector, Attorney
General etc. Or any institution that has a power which it derives from an
enabling legislation. Parliament has been authorized by Const to issue
legislation. Example Parliament creates the SABC This is not a state
department but falls under a functionary/ institution and there is
enabling legislation such as the National Broadcasting Authority Act

*** TEST/EXAM: Is the Liquor Board an Administrator …….12 marks

What is meant by empowering provision? ……… 3 marks

2. Identify the powers or mandate (implied or expressed) of the relevant

body or institution. As per practical (shall, may, must etc.) Alternatively, it
shall be set out in the case study. i.e. the powers of the KZN Water Board
are…
However In practice you have to look for it yourself

3. Is PAJA applicable? Is it administrative action as per Section 1 of PAJA?

Is the decision making body an Administrator?
Is the complainant an Adversely Affected Party?
Is the conduct Administrative Action?
Are any of the exceptions listed in Section 1 applicable?................ 9
Exceptions will be listed in the definitions. Specifically saying that PAJA will
not apply for example a decision to institute criminal proceedings against a
person cannot use PAJA to force the National Director of Public Prosecutions
to make a decision.
 See definitions – exceptions listed under “but does not include (aa)- (ii)
(thus 9 exceptions listed)
Know the exceptions for practice purpose
Kruger will not ask exceptions under definitions because all exceptions fall
under legality Prof K Govender will ask questions on Legality
 However when answering a 12 or 15 mark question keep the exceptions in
mind. If it is a decision made by the President as the National Executive
Authority then that will be excluded from PAJA. Then you will have to use the
principle of legality
 PAJA will only be applicable if the above three points are met –
(Administrator, Adversely Affected, Administrative Action)

4. In the event that PAJA is applicable, then you apply both PAJA and Section 33
of the Constitution to test whether the conduct is lawful, reasonable and
procedurally fair.
This will then look at the Grounds of Review and issues of procedural fairness.
Have reasons been supplied?
 Grounds of review means that the court can step in and set aside a
decision that was taken incorrectly
 Grounds of review that we have – S5
 Procedural Fairness S3, Procedural Fairness S4
 We want to apply PAJA because by applying PAJA it’s an easy way to
get a decision overturned. To use the courts to review a decision and
say that PAJA said it must be reasonable. If your decision isn’t
reasonable or rational or procedurally fair then we can have that set
aside

5. Argue your client’s case with reference to relevant case law.

 Have to identify case law or academic articles to back your argument

ONE LAST IMPORTANT NOTE:

It NEVER happens that you get an exam question for 100 marks which ask you to
‘argue your client’s case in terms of the administrative law.’

This is however what happens in practice – remember law isn’t applied in neat
segments
You will rather be confronted with a case study and then be asked a few
questions regarding the study for 6-15 marks usually broken into 2 or 3 sub-
questions.

It can also be a ‘discuss the following case’ (10marks) or a ‘discuss with reference
to the case study’

Answer only what is asked! We know you studied hard for the exam and that your
fountain of knowledge is overflowing but please, if we ask ‘Is body X an
Administrator?’ (15marks) and you discuss Administrative Action instead, then
you get 0 !!!!

 In test/exam only asked to focus on one area. Eg only focus on Administrative

Action or Administrator
 Will be given a case study

Example:

During a club rugby match, Os Botha and Bakkies Smit are embroiled in a
fist fight. Both of them are members of local rugby clubs that function as
voluntary associations with membership and contracts. Each club has its
own constitution and rules.

The management of O’s club decides that he must be brought before a

disciplinary committee of the club and he is charged with misconduct on
the field that brought the club’s good name into disrepute.

If found guilty, Os may be suspended from the club for up to three months
and there is no possibility of an appeal against the committee’s decision
within the club structures. His chances of ever playing provincial or national
rugby again will also dissipate with the suspension.

Will the rugby club act as an “administrator”? Was Os an affected party

affected by administrative action
Answer the following :

(a) Will the rugby club act as an “administrator”?

 Required to give the full definition of an administrator
(b) Was Os an affected party affected by administrative action?

Answers:

 The Administrator

If you are faced with the question whether decision maker X is an Administrator,
answer the question as follows:

1. Give the full definition of an Administrator. (4 Marks)

 Administrator – Organ of State or Natural/Juristic person. Organ of state

Empowered in terms of the Constitution or enabling legislation. Natural
or Juristic person empowered in terms of empowering provision. Both
organ of state or natural/juristic person have to have public power or
public function
2. Apply this definition to the case study. (1 Mark)

 Is the Rugby Club an organ of State?

- Is the rugby club a state department? No.
- The rugby club is also not an institution or functionary that
was created by the Constitution. Therefore the rugby club is
not an organ of sate
 Is the rugby club a natural or juristic person?
- Not a natural person
- May be a juristic person

3. Discuss “Public power or function” – factors that play a role- generally or those
specifically ( 4 marks)

 Explain that when someone is exercising a public power that it is not an

easy way to do so. The court takes into account various factors.
Example if it was a constitutional power or statutory provision then it’s
likely to be a public power but if it has contract for its basis of power
then it is unlikely to be public power.
 Generally or specifically – give some examples of what factors the court
will look at. If the case scenario mentions certain factors then discuss
those factors and explain the influence of those factors –
Example the rugby club receives public money from the Minister of
Sport and Recreation – this indicates that it is likely to be exercising
some public power or performing some public function but the fact that
they are a voluntary association and have memberships and contracts-
these factors show that they are unlikely to be exercising a public power

4. Refer to Case Law (2 Marks max)

 Chinese Shipping case – Have the National Arms Control

Committee
 Tantoush case – Refugee Status Determination Officer
 These cases are good examples of what is meant by an
administrator
  When answering questions on definitions do not need to go in
detail into the cases. Example if making reference to the Tantoush
Case- “Similarly in Tantoush case the Refugee Determination
Officer was seen as an Administrator

5. Conclusion. (1 mark)

 The Rugby Club will not be an Administrator. If they are exercising a power
in terms of the contract and with its voluntary association with membership
and not because government has authorized them to exercise a public
power

(b) Explain what is meant by Affected Party and Administrative Action

Administrative Action & the Adversely Affected Party:

If you are faced with the question (for 13 marks) whether the complainant Y
(or Os in this example) is an adversely affected party who's rights have
been affected by administrative action, then you answer the question in the
following manner (remember here we have 2 questions in one):
1. Give the complete definition of an Adversely Affected Party. Discuss what is
meant with each of the elements with reference to case law. (What is a right?
What is adversely affected?)

2. Apply the abovementioned on the facts.

  Is Os an Adversely Affected Party?
- Give the definition. Adversely affected party means any person
whose rights are adversely affected
- Identify what is meant by “Any person”, “Rights”, “Adversely
affects” …………………….. (2 marks for each)
- Use the definition set out and apply to the facts of the case:
 Is Os a person? Yes
 Are his rights affected also if it has the capacity to affect
his rights as stated in Greys Marine Case? Yes
 Is he adversely affected? Yes

…….. Continuation from point 2

3. Give the definition of Administrative Action. Discuss what is meant by each

of the elements with reference to case law (What is administrative in nature?
What is direct external legal affect? etc. )

4. Apply the abovementioned to the facts.

5. Are any of the Exclusions applicable?

6. Conclusion
 Define administrative action-
- It is a decision that is administrative in nature that is direct, external
legal effect …………………………. (7 marks)
- 2 marks to explain each of the three sub headings :
“Decision” – Also failure to take a decision
“Administrative in nature”- the implementation of legislation or
governmental power. To determine if something is Administrative in
nature the courts do not look at who is performing this function.
Regardless if it is the President or official in dept of home affairs-
Just look at the conduct itself – is it an administrative act (in such
cases there is legislation which gives the administrator a discretion
and the discretion is now being exercised. It only when a discretion
is being exercised by the official) or legislative act
“direct, external, legal effect”- only final decisions are reviewable
- Apply the definition to the facts – is it administrative action when the
disciplinary action is taken Os?
 Is it a decision? – Yes
  Is the decision administrative in nature? No. it is not an
implementation of legislation that affects the public and it is
only those who subscribe to the contract will be affected OR
can say yes because there is an empowering provision which
oversees the decision therefore you can say that it is
administrative in nature because the club is implementing its
rules and code of conduct in terms of its constitution
 Does it have direct, external, legal effect? Yes. It influences
someone else
- Conclusion : Therefore in this case it is not administrative action

*** EXAM: SASSA ISSUE – Interesting exam question

CLASS EXERCISE ON WEEK 5: THE DEFINITIONS OF ADMIN LAW

COMPENSATORY MONDAY – 8 MARCH 2017

Instructions

The definitions of admin law as set out in the Promotion of Administrative Justice Act
3 of 2000 is EXTREMELY important as it determines whether PAJA can be applied to
your client’s case or not. PAJA cannot be applied if the 3 elements of the definition
are not present.

In this exercise, you will be given an opportunity to test your understanding of

the definitions and how they apply. How will be confronted with a case scenario and
have to use the information we give you, as well as additional information
placed on moodle, to determine if PAJA can be applied. To do this, you will need:

1. This case scenario;

2. Access to moodle (or copies of) the KZN Liquor Act);

3. Access to our slides on the definitions;

4. Access to Hoexter.

You are also allowed to view the website of the liquor authority at
http://www.kznlqa.co.za/Pages/Home.aspx if this will help you answer the questions.

In you analysis, take into account the facts as given to you by Jason Bars as well as
the other materials provided. You have to approach this by asking:

1. What are the relevant facts?

2. What legislation governs this issue?

 Are we dealing with the constitution or enabling legislation or empowering

provision

3. What are the powers and functions as per the legislation? Are there any
limitations?

4. Does PAJA apply?

  Note: PAJA only applies if you have an administrator, administrative action
and an affected party

a. Is the KZN Liquor Board an ADMINISTRATOR?

b. Did they perform an ADMINISTRATIVE FUNCTION?

c. Is Jason Bars an AFFECTED PARTY?

d. Is Peter Owners an AFFECTED PARTY?

PLEASE NOTE the idea is that you take about 40mins max to answer these
questions on a piece of paper and include your group (4A or 4B), name and
student number thereon. You may work in the lecture venue or in the library. You
may work in groups if you prefer but we would prefer if you work alone, using the
materials provided.

Following this, the correct approach / answer will be discussed in the lecture
and your answer will be evaluated and assessed by your peers and given back to
you so you can see what and where you need to brush up on. One of our GTAs will
then collect all the answers afterwards and we will keep it for our records.

PLEASE NOTE that it does not count towards any marks but we hope it will be a
valuable exercise for you. We hope you enjoy it!

CASE SCENARIO 30 marks- everything is tested in this case scenario will NOT
get a 30 mark question in test or exam

Jason Bars approaching you for assistance regarding his liquor licence. He
explains his situation and gives you the facts as stated hereunder.

The KwaZulu-Natal Liquor Licensing Act 6 of 2010 (the Act) created the
KwaZulu-Natal Liquor Authority (aka the Liquor Board) to inter alia consider, grant or
reject liquor licence applications in the Province ensuring a uniform, fair, equitable
and transparent process in the issuing of liquor licences. The objects of the Act are to
provide for the regulation of the micro-manufacturing and the retail sale of liquor
as well as to provide for mechanisms aimed at reducing the socio-economic and
other effects of alcohol abuse and promote an ethos of social responsibility in the
industry. The Liquor Authority is a juristic person, a provincial public entity
subject to the Public Finance Management Act 1 of 1999 and consists of
eight members, two appointed by the responsible Member of the Executive
Council, and six private individuals nominated by the relevant liquor
stakeholders. The Liquor Authority is partly financed by the Department of
Trade & Industry and partly financed through own means i.e. funds received from
liquor licences and associated fines.

In terms of section 40 of the Act no person may be issued with a licence or permit if
he or she:

a) is a minor on the date of submitting the application for a licence or permit;

b) is committed in terms of the Mental Health Act, 1973 (Act No. 18 of 1973), or the
Mental Health Care Act, 2002 (Act No. 17 of 2002), as the case may be;

c) is an un-rehabilitated insolvent;

d) has in the preceding 10 years been sentenced for any offence to imprisonment
without the option of a fine, unless the Liquor Authority is of the opinion that the
offence is if such a nature that the offence does not render the applicant unsuitable to
hold a licence or permit or unless the sentence has been set aside by a competent
court or such a person has received a grant of amnesty or a free pardon; or

e) has been convicted of an offence in terms of this Act.

The KwaZulu-Natal Liquor Licensing Act 6 of 2010 was supposedly under review
and a bill had been tabled to deal with certain issues – the KZN Liquor Licensing
Amendment Bill 2013.

Jason is unsure if this has any effect on his case.

Jason Bars has recently moved to Durban after strained divorce proceedings from
his second wife, Susan to whom he was married in community of property for six
years . He tells you that after three years of marriage, he became increasingly
worried about what appeared to be, Susan’s very bad gambling addiction. This
addiction developed to such a problem that they couldn’t pay their monthly bills and
they were forced to go under debt review which in turn required Jason to work extra
shifts and longer hours to make ends meet. In the months leading up to the divorce,
Susan, paranoid with his longer hours at work, had accused him of a number of
extramarital affairs, alleging that he had fathered a child with one of her friends from
her book club and this resulted in heated arguments and public fights where Jason
was often witnessed as being heavily intoxicated and verbally abusive. Susan even
opened a case of domestic assault at the local SAPS and the matter was still being
investigated when the divorce came through. Jason has, since the divorce, met
someone new and although they are not married, they live together like husband
and wife although her father does not approve. Tired of all the drama associated
with his former spouse in Gauteng, Jason decided to move to Durban and start his
own beer distillery from his plot in the Kloof area and sell at local farmers markets in
the KZN Midlands. In order to do so however, Jason had to apply for a micro-
manufacturing and retail sale licence from the Liquor Authority.

Jason understands that his application was considered by the Liquor Authority and,
taking into account the objectives of the Act, subsequently refused in terms of section
40 of the Act. The Liquor Authority rejected his application for a micro-manufacturing
and retail sale licence. He asked for reasons, which they have supplied. They
argued that one of the objectives of the Act was to provide for mechanisms aimed
at reducing the socio-economic and other effects of alcohol abuse and promote
an ethos of social responsibility in the industry. They find that Jason was
under debt review and clearly unable to manage his financial affairs. They also
reason that Jason’s heavily intoxicated state plus the allegations of extra-marital
affairs and a child out of wedlock is not the kind of moral character they can approve
in the liquor industry. They reason that section 40 dealing with disqualifications
makes mention of an individual who has in the preceding 10 years been sentenced
for any offence to imprisonment without the option of a fine and in light of the pending
criminal case of assault against Jason, he should not be granted a licence until such
case is finalised.

Jason approaches you for assistance. Answer the following questions . In your
answer, refer to these facts, the extracts from the KZN Liquor Act 6 of 2010, the
KZN Liquor Amendment Bill 2013 and the KZN Liquor Board:

a. Will the Liquor Board be an administrator? Include all relevant elements in

your discussion.

b. Was the refusal / denial of the liquor licence, an Administrative Act as

contemplated by PAJA?
c. Was Jason a person who is adversely affected by said administrative action?

d. Peter Owners resides on the property adjacent to Jason’s plot. He objects

to this planned local distillery of Jason Bars, complaining that it will affect the
property prices and insists on being heard by the Liquor Board before a
decision is taken. Could he be a person who is adversely affected by this
administrative action?

Answer Discussion Memorandum

In you analysis, take into account the facts as given to you by Jason Bars as well as
the other materials provided. You have to approach this by asking:

1. What are the relevant facts?

2. What legislation governs this issue?

 Are we dealing with the constitution or enabling legislation or empowering

provision

3. What are the powers and functions as per the legislation? Are there any
limitations?

4. Does PAJA apply?

 Note: PAJA only applies if you have an administrator, administrative action

and an affected party

a. Is the KZN Liquor Board an ADMINISTRATOR?

b. Did they perform an ADMINISTRATIVE FUNCTION?

c. Is Jason Bars an AFFECTED PARTY?

d. Is Peter Owners an AFFECTED PARTY?

Additional note: Specific admin law and general admin law- Specific admin law
relates to what legislation governs this issue this is point (2) and (3) above. It shows
you specific legislation and in that legislation what powers need to be fulfilled.

General admin law point (4) above does PAJA apply and in what way
…..Continuation of answer

1. What are the relevant facts?

Set out in the case scenario
2. What legislation governs this issue?
 Is this a Constitutional issue
 Is it enabling legislation
 Is this empowering provision
Enabling legislation: The KwaZulu-Natal Liquor Licensing Act 6 of 2010?
Applicable

Public Finance Management Act 1 of 1999?

No. This Act regulates the way in which public money is spent. Don’t include in
this discussion. Only applicable in ascertaining a Public Power/Public Function

Mental Health Act, 1973 (Act No. 18 of 1973), or the Mental Health Care Act,
2002 (Act No. 17 of 2002)?
No

KZN Liquor Licensing Amendment Bill 2013?

No. this deals with selling liquor on sports ground and Methylated spirits

3. What are the Powers & Functions? & Limitations?

- The Liquor Boards powers are to grant or refuse liquor licenses
- Powers & Functions in section 5-7 of the Act but subject to the
provisions in S40 of the Act
- Limitations or framework in which licenses are awarded in S40 of
the Act
- In terms of section 40 of the Act no person may be issued with a
licence or permit if he or she:
a) is a minor on the date of submitting the application for a licence
or permit;
 b) is committed in terms of the Mental Health Act, 1973 (Act No. 18
of 1973), or the Mental Health Care Act, 2002 (Act No. 17 of 2002),
as the case may be;
c) is an un-rehabilitated insolvent;
d) has in the preceding 10 years been sentenced for any offence to
imprisonment without the option of a fine, unless the Liquor
Authority is of the opinion that the offence is if such a nature that the
offence does not render the applicant unsuitable to hold a licence or
permit or unless the sentence has been set aside by a competent
court or such a person has received a grant of amnesty or a free
pardon; or
e) has been convicted of an offence in terms of this Act.

Note Additional Point: If given this case scenario and asked whether it is rational or
reasonable? Look at the limitations and see why he has been refused.

(a) No
(b) No
(c) Yes. This was one of the reasons why the application was refused. They
believe that he cannot manage his financial affairs and he has been placed
under debt review. Debt review is not the same as being insolvent. Therefore
they cannot use this as a reason for declaring him an un-rehabilitated
insolvent.
(d) Cannot apply this because wife only accused him of assault and a case has
been opened. He hasn’t been arrested and convicted

4. Does PAJA apply?

Will the Liquor Board be an administrator? Include all relevant elements
in your discussion

In terms of PAJA an administrator is “an organ of state exercising

constitutional power or exercising public power or performing a public function
in terms of legislation
 Organ of State means any state department or other institution or functionary
which exercises a public power or performs a public function in terms of the
Constitution or any other empowering provision

OR

Administrator is any natural or juristic person (not an organ of state) which acts
in terms of empowering provision and performs a public power or function

The Liquor Board is not an organ of state (State Department) but falls either under
other institution or functionary or under the 2 nd category of Natural/ Juristic person
acting in terms of empowering legislation i.e. S5 of the KwaZulu- Natal Liquor
Licensing Act 6 of 2010.

However this is not enough. The Courts have to determine in each case, whether the
body is performing a Public Function or exercising a public power.

For this, the court looks at certain factors: (will do this if no information on Liquor
Board was given – give examples of the factors as set out below)

Public Power/Public Function (Factors)

1. IF THERE IS A CONSTITUTIONAL OR STATUTORY PROVISION AS A

SOURCE, IT IS LIKELY PUBLIC. i.e is the decision making body acting in
terms of the constitution/statute
2. IF THERE IS A CONTRACT THAT IS THE SOLE SOURCE : UNLIKELY TO
BE PUBLIC. If there is a contract that is governing the decision making
body and the complainant then it is NOT likely to be public power (e.g
CHIRWA)
3. PROCUREMENT PROCESSES/ PUBLIC MONEY SPENT: LIKELY TO BE
PUBLIC. This asks whether public money is being spent to regulate what
they do. E.g Refugee appeal board/liquor board. It is not public power if
private funds are used e.g if a person uses their savings to create a
cricket club
4. Need to add in
5. Need to add in
 6. REGULATORY BODIES – refers to a board/entity that is regulating a
particular matter, they have to be acting in terms of a statutory provision,
then they are likely to be exercising public power (e.g Liquor Board acts
in terms of the Liquor Act which is its statutory source)

NB USE THE FACTORS THAT ARE APPLICABLE TO THE QUESTION. THUS

YOU WOULD SAY THAT ‘these are certain factors that decide if an entity is
exercising public power and these factors are’:

1. Constitutional or statutory provision – The Liquor Board has been

created by way of an enabling legislation - The KwaZulu- Natal Liquor
Licensing Act 6 of 2010 (the Act). Therefore it is likely to be public power
or public function
2. No Contract. No contract signed between the liquor authority and the
person applying. Therefore it likely to be public power or public function
3. Procurement processes/public money spent – subject to the Public
Finance Management Act 1 of 1999. The Liquor Authority is partly
financed by the Department of Trade & Industry and partly financed
through own means i.e funds received from Liquor licenses and
associated fines. Therefore chances are good that the court would say
that it is a public power or public function
4. It is a public function if it relates to the affairs or services of the public –
regulation of the micro-manufacturing and the retail sale of liquor as well
as to provide for mechanisms aimed at reducing the socio-economic and
other effects of alcohol abuse and promote an ethos of social
responsibility in the industry
5. Powers of the Executive to issue regulations that bind the entity – e.g the
executive issues a regulation to control a specific body.
6. Governmental control over a decision maker

CONCLUSION?

They will be considered an administrator as they are acting in terms of

enabling legislation
Note : No cases were mentioned for Liquor Board as an administrator but if the
scenario was based on Home Affairs and someone applying for Refugee Status
then can mention the Tantoush case where the department of Home affairs was
considered to be an administrator

b. Was the refusal/ denial of the liquor licence, an administrative Act as

contemplated by PAJA?

“Administrative action” is any decision that is administrative in nature and that

has direct external legal effect.

(NB: exceptions for admin action don’t have to be stated if the question doesn’t
state so e.g Masethla)

Hence say : ‘certain exceptions apply but in this case no exceptions apply’

DISCUSS WHAT IS A DECISION s1 PAJA……………………………… 2 marks

 A decision means any decision that is administrative in nature made

under the empowering provision – look at instances in PAJA (NB: only
final decisions taken on judicial review, if preliminary decision not a
decision)
 MZAMBA TAXI ASSOCIATION CASE – it dealt with a decision between 2
taxi associations. The decision was held not to be admin action under
PAJA because the decision was not of a final nature .

ADMINISTRATIVE IN NATURE ………………………………………… 2 marks

 Administrative in nature is however not defined. The courts have

interpreted it as not the formulation of policy but rather the
implementation of legislation. (President of RSA v SARFU). One should
not look at the person making the decision but at the type of decision
that is being made.
  GREYS MARINE CASE: Held that administrative in nature emphasizes
that admin action must impact directly and immediately on a person’s
rights.
 SARFU: held that a decision that is administrative in nature is directed at
the implementation of legislation rather than at the formulation of policy.
 This means that administrative in nature doesn’t include executive
action or the formulation of legislation by the legislator . Administrative
in nature looks at the function and not the functionary.

DIRECT EXTERNAL LEGAL EFFECT………………………………….. 2 marks

 NEW CLICKS CASE: held that the decision was not administrative in
nature because it did not have a direct affect on the parties rights. It was
regarded as a preliminary decision and not a final decision. Direct affect
means it must impact the person directly and be external and not
internal.
 E.g. refugee license affects the person outside the government
department. BUT if change the roster in the department it is an internal
effect and people outside the government department are not affected.

APPLICATION:

The liquor board took a decision, the decision is final in nature.

It is administrative in nature because it deals with the implementation of

legislation.

It has direct effect on Jason, who is outside the governmental department and
hence it is an external effect.

Therefore the decision by the liquor board is an administrative act

CONCLUSION

Jason is affected by administrative action as required by PAJA.

C. Was Jason a person who is adversely affected by said administrative
action?

An “affected person” is any person (natural, juristic and even voluntary

association) whose rights (constitutional or by contractual agreement) are
adversely affected by an administrative action.

 The courts have interpreted the reference to rights to include even if the
decision has the capacity to affect rights (Bullock case) . (E.g. of
determining ones rights is if a person applies for a liquor license this is
determined by the board)
 Adversely affected should be read with regard to the deprivation (taking
rights away) as well as determination (where rights are conferred by
decision) theory.
 GREYS MARINE CASE : held that adversely affected rights must show
that the decision impacts immediately and directly on a person (now and
on the specific complainant)
 GREYS MARINE: held that irrespective if the rights are actually affected
but there must be a potential to affect the rights.
 TRANSNET V GOODMAN BROTHERS: held that the tenderers rights
would have been adversely affected if they were not given reasons.
HELD rights include legitimate expectations and interests. HELD
Goodman’s rights were not affected because there was no right to
provide that specific merchandise

CONCLUSION

Jason Bars is an affected person. Applied for a license it was denied – his
rights are affected.
Peter Owners resides on the property adjacent to Jason’s plot. He objects to
this planned local distillery of Jason Bars, complaining that it will affect the
property prices and insists on being heard by the Liquor Board before a
decision is taken. Could he be a person who is adversely affected by this
administrative action?

An “affected person” is any person (natural, juristic and even voluntary

associations) whose rights (constitutional or by contractual agreement) are
adversely affected by an administrative action.

The courts have interpreted the reference to rights to include even if the
decision has the capacity to affect rights (Bullock case) . (E.g. of determining
ones rights is if a person applies for a liquor license this is determined by the
board)

CONCLUSION

The courts would say that his rights are being affected and he must be given
an opportunity to state his case. The courts have interpreted rights to be broad
not just legal rights, vested rights. In some cases when dealing with procedural
fairness even legitimate expectations are included

*** TEST/EXAM Kruger usually asks:

- definition question + a procedural question S4 or

- definition question + rationality
- definition question + reasonableness