Separation of powers and three classes of administrative action

The classification of administrative action into three classes has its roots in the
principle of separation of powers. If you have enrolled for or have already passed the
Constitutional-Law module, you will be familiar with this principle (the separation
of powers or trias politica). In terms of this principle, state authority is divided into
legislative, executive and judicial authority.
To refresh your memory:
•• Legislative authority is the power to create, amend and/or repeal legal rules.
•• Executive authority is the power to formulate policy, and then to give effect to
this policy through the execution and administration of legal rules.
•• Judicial authority is the power to control both the legislative and the executive
authority through interpreting legal rules, and applying them to concrete situations
when legal disputes are resolved.
You will also recall that the principle of separation of powers teaches us that it is
important for state authority to be divided to prevent an excess of power in the
hands of one branch of government. This provides a way of guaranteeing that the
freedoms, rights and interests of the citizen are protected against abuse of power,
as it prevents the concentration of power in one institution.
In administrative law, an important principle is that of “deference”, which entails that
the courts should show respect towards the powers of the administrator; the court
should defer to the administrator when assessing administrative decisions made by
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the administrator. This principle is quite complex since courts are still duty-bound to
assess administrative decisions on certain grounds (see learning unit 12, specifically).
In such an assessment, the court must be cautious not to usurp the functions of the
executive, while at the same time it should scrutinise its decisions in accordance with
constitutional rights, rules and principles. Department of Transport and Others v Tasima
(Pty) Ltd; Tasima (Pty) Ltd and Others v Road Traffic Management Corporation and Others
[2018] ZACC 21 and Merafong City Local Municipality v AngloGold Ashanti Ltd 2017
(2) SA 211 (CC) show the extent to which the justices differ on this principle; also
referred to as the permitted extent of judicial control over administrative conduct.
Borrowing from and in keeping with the separation of powers principle, administrative
action is also classified into three classes. Furthermore, these classes of action
reflect the function of the particular act.
ACTIVITY 5.7
You will remember from your study of constitutional law and interpretation of
statutes that legislation has certain characteristics. Return to the Refugees Act
(annexure C), page through the Act and look for a provision you would regard as
a reference to “legislative administrative action”.
You will find such a reference towards the end of the Act, section 38 (“Regulations”)
to be precise. This section empowers the Minister of Home Affairs to make
regulations that deal with particular aspects relating to refugees.
A legislative administrative act refers to administrative rules that are legislative in
nature. It is characterised by the making and issuing of rules by the administrator,
when authorised to do so by original legislation. This feature is illustrated by the
Refugees Act, which provides for the minister to make regulations. It is therefore a
legislative act by an executive functionary. In essence, the making of regulations is
what is called “delegated legislation” (also known as subordinate legislation in the
pre-democratic era). Although regulations are perhaps the best example of such
delegated legislation, proclamations, directives and orders are examples as well.
ACTIVITY 5.8
Suppose Theodor Refugee’s application for asylum (see scenario 2) has been
refused. Is he powerless against the refugee status determination officer’s decision
or is there any way he may challenge it?
We will find that he is not powerless. He may lodge an appeal against the decision
with the Refugee Appeal Board. Return to the Refugees Act, look up the provisions
relating to this board and take note of the functions of the board.
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LEARNING UNIT 5: Administrative action
ACTIVITY 5.9
Page down to annexure B (the Earthlife Africa decision). Read the facts carefully
and then do the following:
(1) Identify the class of administrative acts involved in the facts.
(2) See whether any exercise of a discretionary power is in evidence.
(3) If any discretion is in evidence, is it an example of the exercise of a wide or
a narrow discretion?