ADL2601/201

ADL2601/201/2/2019

Tutorial letter 201/2/2019

Administrative Law
ADL2601

Semester 2
DEPARTMENT OF PUBLIC,
CONSTITUTIONAL AND INTERNATIONAL
LAW

IMPORTANT INFORMATION:
This tutorial letter contains important information
about your module.
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Dear Student

You should have received the following thus far:

The study guide The text of this module’s tutorial matter

Tutorial Letter 101 The general information tutorial letter
Tutorial Letter 201 This tutorial letter (online under Additional Resources)

THIS IS YOUR FINAL TUTORIAL LETTER FOR THE SECOND SEMESTER OF 2019. It contains the
following:

1 THE JUNE/JULY 2019 EXAMINATION PAPER

2 ASSIGNMENT 01: COMMENTARY

1. 3 ASSIGNMENT 02: COMMENTARY

2. 4 THE EXAMINATION: FORMAT, PREPARATION AND WRITING

EXAMINATION DATE
ONLY PROVISIONAL DATES ARE PRESENTLY AVAILABLE. PLEASE MAKE SURE THAT YOU
HAVE RECEIVED THE FINAL EXAMINATION TIMETABLE BY THE END OF SEPTEMBER (FOR
THE SECOND SEMESTER).

1 The June/July 2019 examination paper

(Please take note that the answers we provide for the questions in the examination paper are suggested answers.
They are meant to guide and assist you in preparing for the examination. Furthermore, they provide guidelines on
how you should answer a question using only essential points rather than re-writing the study guide. Pay careful
attention to the general comments below on how to formulate your answers to the questions in the examination.)

Set of facts:

It has been said that “town-planning schemes are an institutional process for organising the components
of urbanised human settlement in such a way as to enhance welfare, prosperity, and progress to the
highest feasible level”. Jetset Projects has lodged an application in terms of section 35 of the Western
Cape Land Use Planning Act 3 of 2014 for the rezoning of its property zoned for residential purposes to
“business” to build a several storied high boutique hotel on the Atlantic seaboard of Cape Town. The Cape
Town municipality refused the application after considering it at its monthly meeting and on the advice of
the Cape Town Development Management Department.

Answer the following questions and substantiate your answers.

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QUESTION 1

1.1 Is administrative action in evidence in the set of facts? In your answer, you should give a full
definition of the concept “administrative action”, with reference to the provisions of the Promotion
of Administrative Justice Act (PAJA) 3 of 2000. (15)

Section 1 of PAJA defines “administrative action” as any decision taken, or any failure to take a decision,
by –

(a) an organ of state, when-

(i) exercising a power in terms of the Constitution or a provincial constitution; or
(ii) exercising a public power or performing a public function in terms of any legislation; or

(b) a natural or juristic person, other than an organ of state, when exercising a public power or
performing a public function in terms of an empowering provision,

which adversely affects the rights of any person and which has a direct, external legal effect.

There are exceptions to the definition. For example, judicial decisions.

In view of the definition of “administrative action”, the decision taken by the municipality, to reject Jetset
Project’s application for rezoning constitutes administrative action. It complies with the definition in that it
involves a decision made by an organ of state (the municipality) exercising a public power or performing
a public function in terms of legislation (Western Cape Land Use Planning Act 3 of 2014) which has
adversely affected the rights of a person (Jetset Projects) and which appears to have had a direct external
legal effect. The exceptions do not apply.

1.2 Identify the organs of state in the set of facts and substantiate your answer with reference to the
definition of “organ of state” as provided in the Constitution. (6)

In terms of s 239 of the Constitution the following are organs of state: any department of state or
administration in the national, provincial or local sphere of government; any other functionary or institution
(i) exercising a public power/function in terms of the Constitution (ii) exercising a public power of performing
a public function in terms of any legislation. This does not include a judicial officer.

The Cape Town Municipality is an organ of state (local sphere of government).

1.3 Is there an administrative-law relationship in the set of facts? Give reasons for your answer.
(9)

An administrative-law relationship exists between two parties in an unequal relationship/vertical. One of

the subjects is a person or body clothed in state authority/organ of state who is able to exercise that
authority over a person or body in a subordinate position whose rights are affected by the action.
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In the general administrative-law relationship the legal rules governing the relationship between the parties
apply to all the subjects within a particular group. These rules thus apply impersonally, that is generally
and objectively, and non-specifically and not to a particular identifiable legal subject.

In an individual administrative-law relationship legal rules apply personally and specifically between the
parties. In other words, the legal rules apply to specifically identifiable legal subjects. The content of the
individual relationship will vary from case to case.

Yes, Jetset Projects is subject to an individual administrative law relationship, they are in a subordinate
position in relation to the municipality taking the decision in terms of the Act. The decision that was made
applies to Jetset Projects specifically. There exists a vertical relationship between the parties, the
municipality is clothed in state authority, whereas Jetset Project’s rights are affected by the decision taken
by the municipality.

[30]

QUESTION 2

Answer the following questions. Each question is provided with a number of options as possible answers.
Only one option or statement in each question is correct. You must therefore identify the correct option,
and write down the option that you have identified as the correct one next to the question number.

Answers: a, b, c, d, a

2.1 The municipality’s decision in the set of facts is an example of a…

(a) true administrative act.

(b) judicial administrative act.
(c) legislative administrative act.
(d) just administrative act.

2.2 Just administrative action is defined in section 33 of the Constitution. The term “…” can also be
used to refer to just administrative action.

(a) proportionality
(b) applying one’s mind to the matter
(c) reasonableness
(d) fairness

2.3 Consider the following statement: “Any administrator must act within the powers conferred on him
or her by the empowering statute.” Which requirement in section 33 of the Constitution resonates
this statement?

(a) Procedural fairness

(b) Reasonableness
(c) Lawfulness
(d) Impartiality
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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. 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.”

(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

2.5 Which of the following is NOT a form of abuse of power by an administrator?

(a) audi alteram partem

(b) in fraudem legis
(c) exercising power with an unauthorised purpose
(d) exercising power using an unauthorised procedure

[5]

QUESTION 3

3.1 Does the decision to refuse the application constitute procedurally fair administrative action in
terms of PAJA? (15)

Administrative action which materially and adversely affects the right or legitimate expectations of any
person must be procedurally fair. (S 3(1) of PAJA). Briefly, legitimate expectation means that the rules of
fair procedure are extended to those cases where no vested right exists, but only a “legitimate expectation”
of a benefit that may be granted or a benefit that will not be withdrawn before a hearing has occurred. This
expectation is not merely a hope or wish, but based on something more concrete, such as an express
promise, or a regular practice which can reasonably be expected to continue. It does not mean that the
person is guaranteed success, but only that he should receive a hearing.
Fair administrative practice depends on the circumstances of each case. (s 3(2)(a) of PAJA)
Mandatory requirements: (these seem like a codification of rules of natural justice) (s 3(2)(b) of PAJA)
• Adequate notice of the nature and purpose of proposed action
• Reasonable opportunity to make representations
• Clear statement of administrative action
• Adequate notice of right of review or internal appeal
• Adequate notice of right to request reasons
Discretionary requirements: (s 3(3) of PAJA)
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• Opportunity to obtain assistance, even legal assistance in complex cases

• Opportunity to present and dispute information and arguments
• Opportunity to appear in person
S 3(4) of PAJA states that the requirements in s 3(2) of PAJA may be departed from only if reasonable
and justifiable. This is determined by taking all relevant factors into account, which include:
• The objects of the empowering provision
• The nature and purpose of and need for the action
• The likely effect of the administrative action
• The urgency of the matter
• The need to promote efficient administration and good governance. (s 3(4)(b))
Section 3(5) of PAJA states that the administrator may also follow a different but fair procedure if the
empowering provision authorises this.
Jetset Projects has not had procedurally fair treatment in terms of PAJA because, inter alia, they were not
given an opportunity to make representations; and was not given adequate notice to request reasons for
the administrative action. S 3(4) and S 3(5) of PAJA do not seem to be relevant for present purposes.

3.2 Was Jetset Projects entitled to reasons? Discuss fully with reference to PAJA, including whether
reasons are important and why. (15)

S 5(1) of PAJA provides for the furnishing of reasons to anyone whose rights have been materially and
adversely affected by administrative action and who has not been given reasons for the action may,
request reasons within 90 days of becoming aware of the decision. Section 5(2) provides that the
administrator must give adequate reasons in writing within 90 days of the request.
PAJA also provides that a court may review the action if the action is itself not rationally connected to the
reasons given (S 6(2)(f)(ii)(dd)).
Failure to furnish reasons leads to the (rebuttable) presumption that the decision was taken without good
reason (s 5(3).
In terms of section 5(4) there may be a departure from this requirement only if it is reasonable and
justifiable in the circumstances. All relevant factors to be considered before making this decision. The
affected person must be informed immediately.
Section 5(5) makes provision for an administrator who is empowered by an empowering provision (this is
important), to follow a fair, but different procedure.
Section 5(6) provides that the Minister, at the request of the administrator, may publish a notice in the
Gazette giving a list which specifies any administrative action or group or class of such actions where
reasons will automatically be furnished to persons whose rights are adversely affected by the actions
without the need to request reasons.
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The importance of reasons is that it demonstrates how the administrative body functioned when the
decision was taken – whether it acted lawfully or unlawfully, rationally or arbitrarily, reasonably or
unreasonably. If reasons are lacking affected persons would be at a great disadvantage to challenge the
action. This requirement is a safeguard against any arbitrary or unreasonable administrative decision
making. Currie & De Waal (“Just administrative action” in Currie & De Waal The Bill of Rights Handbook
(2005)) suggest that the main purpose of requiring reasons is to justify administrative action. It promotes
fairness and correct administrative behaviour since bad reasons or no reasons may lead to review
proceedings. It also ensures openness, accountability and transparency in public administration and
reflects the values of an open and democratic society. If no information is available to the person, issues
such as the failure of the administrator to apply his mind to the matter, unauthorised purpose, mala fides
would be difficult to prove. It would be difficult to find a basis for the appeal or review.

Clearly Jet Projects is entitled to reasons and needs to go through the various steps in section 5 of PAJA
to obtain these.

3.3 When will the decision by the municipality take effect? (3)

Administrative acts will take effect upon the decision becoming known, either by publication or
announcement (in an official publication such as the Government Gazette) or by individual notification (eg
by letter, electronic mail). In this instance the decision will take effect ones it is made known, ie ones Jetset
Projects is informed of the Municipality’s decision.

3.4 Would the municipality be able to change its decision? Discuss with regard to the rules of the
principle of functus officio (the task having been completed) (7)

The legal force of administrative action is ended by repeal/revocation, amendment, lapse of time,
withdrawal of one of the subjects to the relationship, or by court order.

When the administrator/organ of state cannot amend, repeal/revoke or vary its decision, it is said to be
functus officio (roughly translated it means “having completed the task/duty; no longer functioning”). In
other words, the matter has been finally dealt with and the administrator/organ of state is no longer able
to change his or her or its mind and revoke, withdraw or revisit the decision. In short, the organ of state
has “discharged his or her or its official function” and he or she or it cannot re-examine or change the
decision afterwards.

If the official decides that the decision, though valid, may be a bit harsh, or if policy changes, the decision
may be changed at any stage. The reason for this rule is that the administration must be given an
opportunity of correcting its own mistakes.

If the Municipality decides that its decision was a bit harsh, it can change the decision.
[40]

QUESTION 4

4.1 List the forms of internal control and briefly outline the advantages thereof. (7)
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Control by superior/senior administrators or specially constituted bodies/ institutions.

Parliamentary control.
Control by public bodies and commissions, such as the public protector and the auditor-general.

Administrative decisions are thoroughly re-evaluated through internal control. It is also possible to bring
inefficient administrators to book. Through internal control such administrators can be reprimanded or
required to give an explanation of their decisions.
Internal control is also less expensive, less cumbersome and less time-consuming than judicial control.

4.2 Does Jetset Projects have locus standi? Why? (3)

Section 38 of the Constitution entitled “enforcement of rights” provides that anyone listed in the particular
section has the right to approach a competent court, alleging that a right in the Bill of Rights has been
infringed or threatened.

The section then proceeds to identify the persons who may approach a court. They are

(a) anyone acting in their own interest;

(b) anyone acting on behalf of another person who cannot act in their own name;

(c) anyone acting as a member of, or in the interest of, a group or class of persons;

(d) anyone acting in the public interest; and

(e) an association acting in the interest of its members.

Yes, Jetset Projects does have locus standi, they will be acting in their own interest. They will allege that
their right to administrative justice was infringed.

4.3 Name which remedy(ies) you would advise Jetset Projects to pursue and give reasons for your
answer. (8)
Judicial review

- The courts have inherent review jurisdiction in terms of the common law
- It entails reviewing the legality of a decision
- Review in terms of the Constitution, section 6 of PAJA, the Supreme Court Act or in terms of the
relevant legislation
- Grounds of review: infringement of a fundamental right or failure to comply with sec 6 of PAJA
(the requirements of valid administrative action)

Section 8(1)(a)

In terms of section 8(1)(a) the court may direct the administrator:

(i) to give reasons, or

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(ii) to act in a required manner

This order will no doubt assume the form of a mandamus or a mandatory interdict.

Section 8(1)(c)

The court or tribunal, in proceedings for judicial review in terms of section 6(1), may grant any order
that is just and equitable, including orders –

(a) setting aside the administrative action and –

(i) remitting the matter for reconsideration by the administrator, with or without
directions; or
(ii) in exceptional cases –

(aa) substituting or varying the administrative action or correcting a defect

resulting from the administrative action, or
(bb) directing the administrator or any other party to the proceedings to pay
compensation;

Jetset Projects should rely on section 8(1)(c) to have the decision set aside and remitted back to the
administrator for reconsideration.

4.4 List the exceptions to the general rule that internal remedies must first be exhausted. (7)

(1) the case has already been prejudged by the administrator

(2) the decision has been made in bad faith (mala fide), fraudulently or illegally, or has in effect not been
made at all

(3) the aggrieved party has an option whether to use the extrajudicial remedy or to proceed direct to judicial
review

(4) the administrative authority has come to an unacceptable decision as a result of an error of law

(5) the administrative body concerned has agreed that judicial review proceedings may start immediately

(6) the administrative body concerned has no authority to rectify the particular irregularity complained of

(7) the internal remedy cannot provide the same protection as judicial review

[25]

Total: {100}
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2 Assignment 1

Set of facts

The president of the Republic of South Africa appoints a commission of inquiry into water shortages in the
Western Cape, to establish the real cause of the drought, after speculation that it was intentionally created
by a regional company called Tlokwane Company. It was alleged that Tlokwane created the drought in
order to subsequently capitalise on the shortage by building a facility for the desalination of seawater. The
result of the inquiry was that Tlokwane was involved in the water shortages, but no conclusive proof was
obtained. However, the inquiry points out that drastic measures must be implemented to ensure that there
is sufficient water in the Western Cape to prevent a water crisis. In response, the Western Cape
municipality advertises a tender for the construction of a facility for the desalination of seawater. In terms
of the municipal regulations, the Director-General in the National Department of Environmental Affairs is
the only administrator who can make the final decision who to award the tender to. An administrator in the
municipality who has a stake in Tlokwane decides to award the tender to Tlokwane without the knowledge
of the Director-General, despite the allegations that the company is directly responsible for the water
shortage. The reasons given for awarding the tender to Tlokwane is that it has better capacity to build the
facility. Ubuntu Holdings, which is the other party to the tender application, feels aggrieved by the decision
to award the tender to Tlokwane despite all the allegations. Ubuntu Holdings is not sure what recourse to
take since they have not been furnished with reasons for the decision taken.

Answer the following questions and substantiate your answers:

Question 1

Define administrative action in terms of the Promotion of Administrative Justice Act 3 of 2000 (PAJA). Is
there any action from the set of facts that does not constitute administrative action? Give reason(s) for
your answer. (12)

Suggested answer

Section 1 of PAJA defines “administrative action” as any decision taken, or any failure to take a decision,
by –

(a) an organ of state, when-

(i) exercising a power in terms of the Constitution or a provincial constitution; or
(ii) exercising a public power or performing a public function in terms of any legislation; or

(b) a natural or juristic person, other than an organ of state, when exercising a public power or
performing a public function in terms of an empowering provision,

which adversely affects the rights of any person and which has a direct, external legal effect.

There are exceptions to the definition.

The decision to appoint a commission of enquiry is, for instance, not an administrative decision because
it does not have an adverse effect.
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Question 2

Explain to Ubuntu Holdings the difference between intra vires and ultra vires. Is the decision of the
administrator intra vires or ultra vires? Give reason(s) for your answer. (8)

Suggested answer

The concept ultra vires was used in terms of the common law to enquire whether administrative action
was not performed outside the boundaries of the powers granted to administrators. Ultra vires means “to
act beyond one’s powers”. It therefore means to exceed one’s powers.

The opposite of ultra vires is intra vires (“within the power”).

Administrative action is invalid – it has no legal effect and is therefore not officially recognised– when the
administrator goes beyond the powers that have been conferred on it by law. This power is conferred by
the empowering legislation.

The administrator in the set of facts acted ultra vires since the Director-General was authorised to take the
decision, ie make the tender award.
[20]

3 Assignment 02

(The correct answers are marked in bold.)

Question 1

The following is NOT an authoritative source of administrative law:

1. Delegated legislation.
2. State institutions reports.
3. Custom.
4. International law.

Question 2

Which one of the following would constitute administrative action in terms of section 1 of PAJA?

1. The decision by a director of a private company not to extend an employee’s contract.

2. The awarding of legal costs on a party to party scale by a judicial officer.
3. The decision by a state president to bring an Act of parliament into force.
4. The failure by a parliament minister to extend a contract for the payment of a social grant.

Question 3

Legality in the administrative law context should be regarded as…

1. the basis for administrative action.

2. a measure to promote public interest.
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3. a safeguard for applying one’s mind.

4. giving effect to administrative action.

Question 4

Which one of the following is NOT a class of administrative action?

1. executive administrative action.

2. legislative administrative acts.
3. judicial administrative acts.
4. administrative acts.

Question 5

The transfer of certain powers and activities to an independent body by a delegator constitute…?

1. mandate
2. deconcentration
3. decentralisation
4. command

Question 6

In terms of Dadoo Limited v Krugersdorp Municipal Council 1920 AD 530 a transaction that is designedly
disguised to escape the provisions of the law can be regarded as…

1. fons et origo.
2. ultra vires.
3. intra vires.
4. fraudim legis.

Question 7

“[I]t is apparent that reasons are not really reasons unless they are properly informative. They must explain
why action was taken or not taken, otherwise they are better described as findings or other information”.
The above quote was taken from ...

1. Ansett Transport Industries (Operations) Pty Ltd v Wraith 1983 FCA 187.
2. Moletsane v Premier of the Free State 1996 17 ILJ 251 (O).
3. Nomala v Permanent Secretary, Department of Welfare 2001 8 BCLR 844 (E).
4. Minister of Environmental Affairs and tourism v Bato Star Fishing 2004 (4) SA 490 (CC).
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Question 8

One of the advantages of internal control is that administrative decisions are thoroughly re-evaluated. The
value of internal control is further recognised in terms of… of PAJA?

1. section 8(3)
2. section 4(3)
3. section 7(2)
4. section 2(2)

Question 9

“Any person” who may institute judicial review of administrative action in terms of section 6(1) of
PAJA means?

1. Any person in a subordinate position.

2. A person who has a right to be heard.
3. A third party with an interest in the outcome.
4. A person whose rights have been directly affected.

4 The examination: Format, preparation and writing

Format of the examination paper

(1) The format of the examination paper will be similar to the format of the June/July 2019 examination
paper.

(2) You will again be given a short set of facts and some of the questions will be based on these facts.

(3) There will be FOUR (4) questions with sub-questions in the examination and they will count a total
of 100 marks.

(4) The questions in the examination (both short and long questions) will test your knowledge, your
insight and your ability to apply theory to practice. Multiple-choice questions form part of the
examination paper, similar to those given in your second assignment.

The shorter type of questions will carry a mark allocation varying between approximately two (2)
and eight (8) marks per question.

(5) You do not have to study any additional study material. However, make sure that you study the
court cases and the relevant legal principles pertaining to them, as they are discussed in the guide.

Answering the examination questions

~ As mentioned above, you will write a two-hour examination paper consisting of four (4) (compulsory)
questions, counting a total of 100 marks. You must answer all four questions.

~ Read attentively through all the questions in your examination paper in order to gain an idea of what the
questions are about. Make sure that you understand the instructions before you start answering the
questions. Identify key words and terms.
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~ Do not separate subsections of questions, for example, 2(a), then 1(b), then 3(a), by answering them in
different places in your examination answer book. If you wish to return to a particular question, simply
leave enough space to return to it.

~ Number your answers correctly.

~ Plan your answer roughly before starting to write. You may think that this will take up too much time, but
you will in fact gain time by avoiding repetition, irrelevant discussion and confusion.

~ Divide your time according to the number of questions and pay attention to the marks allocated to each
question.

~ Avoid repetition and irrelevancies. You will not receive any marks for repeating a fact. Answer questions
concisely but not superficially. Include every step in the legal argument in your answer, starting with the
first step, no matter how obvious it may seem to you.

~ Distinguish between instructions such as explain, compare, list and analyse. List means just that – no
discussion or embellishment is necessary. Make sure that you understand what is expected of you.

~ Give reasons for all your answers (briefly, or fully, depending on what is required). In fact, it is quite a
good idea to write as if you are explaining the legal position to an intelligent layperson who knows nothing
about the law.

~ When referring to case law, limit your discussion of the facts to the absolute minimum, and concentrate
on the legal aspects of the issue. What has happened is of less importance than the reason on which the
judgment is based.

~ It is in your own interest to write legibly and intelligibly. Even if your handwriting is a problem, there are
still a few things you can do about it: write with dark ink, write on every second line, space your work by
leaving lines open between questions, et cetera. Remember: it is to your advantage if we can read what
you have written.

~ Finally, please do not contact us after you have written the examination paper. We are not allowed to
discuss the paper with students or to divulge examination results. However, we will be only too happy to
discuss the course and any difficulties you may experience before the examination.

Prof S Viljoen
Tel: 012 429 2042
E-mail address: maasss@unisa.ac.za

Mr TA Manthwa
Tel: 012 429 8922
E-mail address: manthat@unisa.ac.za