Exam Pack

ADL2601 EXAM PACK 2020
written by
vcube
www.stuvia.com
Downloaded by: jodieganess1995 | jodieganess1995@gmail.com

Distribution of this document is illegal
Stuvia.com - The Marketplace to Buy and Sell your Study Material
ADL2601
EXAM PACK





ADL2601/201
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.

ADL2601/201
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.

ADL2601/201
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

ADL2601/201
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)

ADL2601/201
• 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.

ADL2601/201
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)

ADL2601/201
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

ADL2601/201
(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}





ADL2601/201
1 The November/December 2018 examination paper
Set of facts:
Mr McDonald is the owner of an independent, Durban-based property development company called

Build-well Property Group. The company specialises in the development of luxury residential apartment
blocks along the seaside. In July 2018 Build-well Property Group decided to undertake a new residential
development and consequently submitted their building plans for the construction of a five-storey block
of flats to the City of Durban for its approval. Section 4 of the National Building Regulations and Building
Standards Act 103 of 1977 requires that building plans must first be approved for every building erected
within a municipal area, before any construction may be undertaken. Once submitted to the City, the
plans were perused by the Zoning Plans Examiner, Mrs Naidoo, whose role was to determine whether
they complied with the conditions of the zoning scheme. Mrs Naidoo recommended that the plan
submitted by Build-well Property Group should not be approved since the intended five-storey building
exceeds the four-storey building limitation that applies in terms of the zoning scheme. The objection
2
ADL2601/201
raised by Mrs Naidoo resulted in the City deciding against the development; the application by Build-well
Property Group was subsequently dismissed.
Mr McDonald is furious about the outcome of the application since the envisioned development would
have been a lucrative investment for him and his company. He approaches you for legal advice
regarding a number of administrative law issues.
QUESTION 1
1.1 Is there an administrative-law relationship present in the set of facts? Give a detailed answer. (10)

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.
Yes, Mr McDonald is subject to an individual administrative law relationship, he is in a subordinate

position in relation to the municipality taking the decision in terms of the National Building Regulations
and Building Standards Act 103 of 1977. The decision that was made applies to Mr McDonald
specifically. There exists a vertical relationship between the parties, the municipality is clothed in state
authority, whereas Mr McDonald’s rights are affected by the decision taken by the municipality.
1.2 List three persuasive sources of administrative law. (3)
- Writings in books/journals
- Policy documents, eg Green and White Papers
- Reports by state institutions
- Foreign law
definition of the concept “administrative action” with reference to the provisions of the Promotion
by –

3
ADL2601/201
There are exceptions to the definition.
In view of the definition of “administrative action”, the decision taken by the municipality, to reject Mr
McDonald’s building plans 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 (the National Building Regulations and Building Standards Act
103 of 1977) which has adversely affected the rights of a person (Mr McDonald) and which appears to
have had a direct external legal effect. The exceptions do not apply.
[25]
QUESTION 2
2.1 Answer the following questions. Each question is provided with a number of options as possible
answers. Only one option/statement in each question is correct. You must, therefore, identify the
correct option and write down the number of the option that you have identified next to the
question number.
2.1.1 Organ of state is defined in section … of the Constitution of the Republic of South Africa, 1996.
(a) 33
(b) 239
(c) 4
(d) 26
2.1.2 Two examples of Acts of Parliament that complement the provisions of the Constitution and are
crucial to Administrative law as well, are PAJA and …
(a) the Promotion of Access to Information Act 2 of 2000 (PAIA).

(b) the National Building Regulations and Building Standards Act 103 of 1977.
(c) the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998
(PIE).
(d) the Housing Act 107 of 1997.
2.1.3 Res iudicata means that…
(a) all administrators must act reasonably.

(b) court decisions are not of an administrative nature.
(c) the matter has been dealt with and cannot be reconsidered by the same body, but
only by a higher-ranking body.
(d) no person may be a judge in his/her own case.
2.1.4 Ubuntu can be regarded as the African view of life and the world. Which one of following is the
way in which this term can be defined/describe?
(a) African Humanism

(b) African due process
(c) African democracy
(d) African constitutionalism
4
ADL2601/201
2.1.5 Which one of the following is NOT a binding source of administrative law?
(a) The Constitution of the Republic of South Africa, 1996

(b) Case law
(c) Legislation
(d) Foreign law
(5)
2.2 Mention the three classes of administrative action and the distinctive characteristics of each. (6)
Legislative administrative acts are the most easily recognised action of the administration.
They have a specific form and are published in an official document, such as the Government
Gazette. Specific rules apply to the adoption, repeal or amendment of all legislative
administrative acts. The power to delegate a legislative power exists only when there is express
statutory authority for this.
A judicial administrative act is action that is almost like that of a court. This explains its
characterisation as a “quasi- judicial” act. Like the courts, administrators interpret and apply legal
rules to disputes in concrete situations. Administrative adjudication is usually undertaken by
specialist bodies, known as administrative tribunals. Currently there are not many examples of
such administrative tribunals, but the Films and Publications Appeal Board provides such an
example.
An administrative act refers to the “true” administrative act, where individual administrative-law
relationships are created or varied. Administrative acts relate to the day- to-day business of
implementing and applying policy, legislation or an adjudicative decision. In short, administrative
acts include literally every possible aspect of government activity “granting a licence, promoting
an employee, stamping a passport, arresting a suspect, paying out a pension” (Hoexter 2012:55).
2.3 Explain the concept of just administrative action with reference to the relevant provision in the
Constitution. (7)
Section 33 reads as follows:
33(1) Everyone has the right to administrative action that is lawful, reasonable and procedurally
fair.
(2) Everyone whose rights have been adversely affected by administrative action has the right
to be given written reasons.
(3) National legislation must be enacted to give effect to these rights, and must –
(a) provide for the review of administrative action by a court, or, where appropriate, an independent and im
(b) impose a duty on the state to give effect to the rights in subsections (1) and (2); and
(c) promote an efficient administration.
Just administrative action is aimed at preventing organs of state, public institutions and functionaries, as
well as natural and juristic persons – administrators – from abusing or misusing their power in their
dealings with an individual who is in a subordinate position. Hence the constitutional demand that
administrative action must be performed lawfully, reasonably and in a procedurally fair manner; and from
the perspective of the individual, just administrative action is directed at protecting him or her in any
dealings with administrators. It guarantees the individual just treatment/justice, fairness and
reasonableness in his or her relationship and dealings with administrators.
5
ADL2601/201
2.4 Briefly define legality. Also explain this principle in the constitutional framework. (7)
Legality is a principle used by the courts to determine whether administrative action was not only
authorised by law but also performed in accordance with the prescripts laid down by the law. The public
administration must serve and promote the public interest, protect and respect fundamental/human
rights.
The Constitution is the supreme law of the country and is elevated above all state legislation. Section 2
of the Constitution provides that any law or conduct that is not in line with the Constitution may be
declared invalid by the court.
Fedsure Life Assurance LTD v Greater Johannesburg 1999 (1) SA 374 (CC): the executive “may
exercise no power and perform no function beyond that conferred upon them by law.”
Section 8 of the Constitution provides that the Bill of Rights binds the executive authority – state
administration in all spheres of government – and all organs of state. This means that organs of state
and individuals exercising public power are bound by the law and not elevated above it.
[25]
QUESTION 3
3.1 Briefly explain the rule against delegation. (5)
In Foster v Chairman, Commission for Administration 1991 4 SA 403 (C) the rule against delegation was
explained as follows:
“It is a trite principle of our law that where a power is entrusted to a person to exercise his own individual
judgment and discretion, it is not competent for him to delegate such power unless he has been
empowered to do so expressly or by necessary implication by the empowering statute.”
This rule expresses the idea that the administrator who has authority to take administrative action must
exercise that authority himself or herself. The general rule is that where a discretionary power has been
granted to a particular functionary because of his or her specific qualifications, knowledge or expertise,
the exercise of this discretion cannot be delegated to another functionary or institution. The original
administrator must perform the function personally.
After all, if the administrator may freely transfer or delegate his or her powers to somebody else, it would
undermine the requirement that powers must be exercised by an administrator with a particular
qualification, status, knowledge or responsibility.
The key judgment dealing with delegation is the case of Shidiack v Union Government 1912 AD 642.
Innes ACJ explained delegation thus:
“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. The persons concerned have a
right to demand the judgment of the specially selected officer.”
6
ADL2601/201
3.2 Explain the rules that apply when delegation of powers is permitted. (4)
(1) If the administrator is authorised to perform a particular action and this entails the exercise of
discretion, the task concerned may not be delegated unless the delegation is authorised by
statute.
(2) An administrator who exercises a discretionary power and makes a decision is not prevented
from instructing a subordinate administrator merely to implement the decision. This does not
constitute an unauthorised delegation, as the superior administrator merely issues a mandate or
instruction.
(3) The rule against further delegation also implies that an administrator may not, in the exercise of
his or her discretion, put him or herself in the situation of having to accept directions or
orders/commands from another body. In other words, he or she must apply his or her own mind
to the matter.
(4) An administrator may, without contravening the rule against delegation, appoint a fact-finding
committee to assist him or her, provided the actual discretion is ultimately exercised by the
proper authority.
3.3 What are the three forms of delegation? (3)
- Mandate/instruction
- Decentralisation
- Deconcentration
3.4 PAJA gives effect to the right to reasonable administrative action. The Constitutional Court has
given content to the relevant provision in PAJA that deals with reasonableness. Suppose the
decision taken by the City of Durban constitutes an administrative decision, does this decision
comply with the reasonableness requirement as captured in the Constitution? Substantiate your
answer with reference to PAJA and case law. DO NOT explain the right to written reasons. (13)
The Constitutional Court had the opportunity to pronounce on the meaning and content of section 6(2)(h)
in the landmark decision of Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs. This decision
dealt with the allocation of fishing quotas by the Chief Director (responsible for marine management) in
the Department of Environmental Affairs and Tourism. The appellant challenged the Chief Director’s
allocation of his (the appellant’s) fishing quota in terms of the provisions of the Marine Living Resources
Act 18 of 1998 (MLRA). One of the questions before the Court related to the alleged unreasonableness
of the Chief Director’s action. The Court, per O’Regan J acknowledged the pre-Constitutional
jurisprudence which failed to establish reasonableness or rationality as a free-standing ground of review.
O’Regan J referred further to the Wednesbury decision and held that the PAJA test draws directly on the
language of that decision. However, she emphasised the importance of reading section 6(2)(h) in line
with the wording of section 33(1) of the Constitution. She held that even if it may be thought that the
language of section 6(2)(h), if taken literally, might set a standard such that a decision would rarely if
ever be found unreasonable, that is not the proper constitutional meaning which should be attached to
the subsection. The subsection must be construed consistently with the Constitution and in particular
section 33 which requires a simple test, namely, that an administrative decision will be reviewable if, in
Lord Cooke’s words [Lord Cooke in R v Chief Constable of Sussex, ex parte International Trader’s Ferry
Ltd [1999] 1 All ER 129 (HL) at 157], it is one that a reasonable decision-maker could not reach. The
simple test is therefore one that states that administrative action will be reviewable, if it is one that a
reasonable decision-maker could not reach. What will constitute a reasonable decision will depend on
the circumstances of each case as it is context-based. O’Regan J then proceeded to enumerate the
factors relevant to determining whether a decision is reasonable. They include
(a) the nature of the decision;
(b) the identity and expertise of the decision-maker;
7
ADL2601/201
(c) the range of factors relevant to the decision;

(d) the reasons given for the decision;
(e) the nature of the competing interests involved; and
(f) the impact of the decision on the lives and well-being of those affected.
One could argue that the municipality’s decision was not reasonable. No reasons were given for the
decision, Mr McDonald was effectively prohibited from undertaking building works, which has a major
impact on his business.
[25]
QUESTION 4
4.1 Explain the common law rules of natural justice? Refer to relevant case to explain these rules. (12)
The audi alteram partem rule, as interpreted and developed by our courts, consists of the following:
(1) The individual must be given an opportunity to be heard on the matter (ie the opportunity to put his or
her case).
(2) The individual must be informed of considerations which count against him or her.
(3) Reasons must be given by the administrator for any decisions taken.
Over and above the three-legged audi alteram partem rule, the rules of natural justice embrace a further
rule, namely nemo iudex in sua causa (literally: “no one may be a judge in his or her own cause”). In
other words, the decision-maker must be, and must be reasonably perceived to be, impartial or
unbiased. This is known as the rule against bias.
The most common examples of bias are the following:
(a) the presence of pecuniary/financial interest; and
(b) the presence of personal interest.
(a) A pecuniary (financial) interest
In Rose v Johannesburg Local Road Transportation Board 1947 4 SA 272 (W), the chairman of the
board responsible for the granting or refusal of transport licences (the permits), was at the same time the
director of three large taxi companies.
One of these companies opposed the application for such permits. It was apparent that the company, a
large taxi company in Johannesburg, would benefit from the refusal of applications. Despite this the
chairman refused to stand back and participated in the hearing.
The court found that the reasonable person would realise that the chairman was indeed biased because
of his financial/pecuniary interest in the taxi company, and also because that company was one of the
objectors.
8
ADL2601/201
(b) Personal interest
In Liebenberg v Brakpan Liquor Licensing Board 1944 WLD 52, the mayor of the town insisted on being
present when liquor licence applications were being heard, despite the fact that one of the applicants
was his brother. The licence was granted to the brother, and despite the fact that the other members
submitted affidavits to the effect that they had not.
4.2 What are the forms of internal control? (3)
- 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
4.3 What are the advantages of internal control? (5)
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.
4.4 One of the preconditions set before an affected person may take administrative action on judicial
review is that he or she has to exhaust internal remedies as required by section 7(2) of PAJA.
Provide five examples of when internal control would not be the proper remedy. (Ie, give five
exceptions to the general rule.) (5)
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
(7) the internal remedy cannot provide the same protection as judicial review
[25]
Total: {100}
9




1 The June/July 2018 examination paper
Set of facts:
Mr Molefe applies for a passport at the Department of Home Affairs under the South African Passport
and Travel Documents Act 4 of 1994. He is very excited to visit his son who now lives in Perth, Australia.
He is informed that his application will take about three months to be processed and he is given a
properly dated and stamped receipt. After two months, Mr Molefe is informed by Ms Nasty, the official
working at the Department of Home Affairs, that his application is unsuccessful. He is not given any
reasons for this decision. In response, Mr Molefe requests reasons from Ms Nasty. After two weeks, Ms
Nasty responds with a letter informing Mr Molefe that the Department of Home Affairs has decided to
deny passports to elderly persons and that the definition of an “elderly person” is one considered by the
relevant official working within the Department to be “old”.
Answer the following questions and substantiate your answers with reference to the set of facts, where
applicable.
2
ADL2601/201
Question 1
1.1 The basic values and principles governing public administration are set out in the Constitution of
the Republic of South Africa, 1996. Mention both the relevant provision in the Constitution that
sets out these principles and what they entail. (5)
Section 195(1) of the Constitution provides that the basic values and principles governing public
administration include the promotion of an open and transparent public administration by providing the
public with timely, accessible, accurate information and the promotion of a high standard of professional
ethics. Services must be provided impartially, fairly, equitably and without bias.
1.2 Define the concept of “legality”. (3)
Legality refers to the lawfulness of state action: in other words, government by the law and under the
law. All government action must be performed in accordance with certain set legal principles.
1.3 Is there an administrative-law relationship in the set of facts? Give reasons for your answer. (7)

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.
Yes, Mr Molefe is subject to an individual administrative law relationship, he is in a subordinate position

in relation to the officer (Ms Nasty) taking the decision in the Department of Home Affairs. The decision
that was made applies to Mr Molefe specifically. There exists a vertical relationship between the parties,
Ms Nasty is clothed in state authority, whereas Mr Molefe’s rights are affected by the decision taken by
Ms Nasty.
definition of the concept “administrative action”, with reference to the provisions of the Promotion
by –

3
ADL2601/201
In view of the definition of “administrative action”, the decision taken by the officer, Ms Nasty, in the
Department of Home Affairs to reject Mr Molefe’s application for a passport constitutes administrative
action. It complies with the definition in that it involves a decision to make a decision by an organ of state
(the officer at the Department of Home Affairs) exercising a public power or performing a public function
in terms of legislation (the South African Passport and Travel Documents Act 4 of 1994) which has
adversely affected the rights of a person (Mr Molefe) and which appears to have had a direct external
legal effect. The exceptions do not apply.
[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 number of the option that you have identified as the correct one next
to the question number.
2.1 The rule Ne bis in idem means that…

(1) all administrative actions are reviewable.
(2) state administrators must act lawfully.
(3) the same matter may not be heard twice.
(4) no person may be the judge in his/her own case.
2.2 The South African Passport and Travel Documents Act 4 of 1994 is an example of a…
(1) persuasive source of law.
(2) binding source of law.
(3) judicial precedent.
(4) administrative practice.
2.3 Section 239 of the Constitution defines...

(1) organ of state.
(2) administrative action.
(3) just administrative action.
(4) lawfulness in terms of the Promotion of Administrative Justice Act (PAJA) 3 of 2000.
2.4 Which one of the following is NOT one of the three classes of administrative action?
(1) legislative administrative action
(2) judicial administrative acts
(3) “true” administrative acts
(4) municipal acts
2.5 The simplest form of delegation is…

(1) an instruction or command.
(2) deconcentration.
(3) decentralisation.
(4) deferment.
3, 2, 1, 4, 1 [5]
Question 3
3.1 Explain decentralisation as a form of delegation in administrative law. Refer to case law in your
explanation. (8)
Decentralisation of administrative power is characterised by the senior functionary transferring certain

powers and activities to an independent organ or body “which carries out these powers and functions
4
ADL2601/201
entirely in its own name”. See SA Freight Consolidators (Pty) Ltd v Chairman, National Transport
Commission 1987 4 SA 155 (W). For example, a minister appoints a board to issue transport permits or
a council is appointed to run university matters. In this relationship of decentralisation, the delegator
cannot interfere with the activities of the board.
Control is exercised indirectly over the decentralised institution, the board for example, by way of
appointment of the members of the board and by way of appeal to or review by the original delegator.
Apart from this power of appointment and the power of appeal or review, the two institutions function
independently, each in its own name. In other words, we may state that there is a “full delegation of
power and the subdelegee/subdelegate becomes fully responsible for the exercise of the power”.
Another example of this type of delegation is that in which a minister appoints a panel or board of
experts to issue licences or concessions. The minister may not personally perform the function which he
or she has delegated. This does not mean that the minister now has no power of control or supervision
over the body. He or she exercises control.
(1) by way of the appointment of the body’s members; and

(2) by way of appeal to or review by the minister of the decisions made. We speak here of an
“independent control relationship” or decentralisation.
Strictly speaking, there is no question of delegation when a decentralised body is created. Rather, the
exercise of public (administrative) power by independent bodies is subject to management and control of
the controlling body. In University of Pretoria v Minister of Education 1948 4 SA 79 (T), the court found
that the Minister of Education did not have the power to appoint the principal of a university, and that this
appointment fell within the power of the university council. The appointment by the council had to be
approved or ratified by the minister, but he or she could not substitute his or her decision for that of the
council.
3.2 There are three forms of abuse of power by an administrator. Mention each of these forms and
give a brief explanation of each. (6)
The following are forms of abuse of power by the administrator:
(a) exercising power with an unauthorised or ulterior purpose
The administrator must use his or power for the object identified in the empowering Act. When the
administrator uses his or her power for a purpose other than that set out in the enabling statute, the
action amounts to the abuse of a power for an unauthorised purpose.
The test for determining whether the administrator has used his or her power to achieve the authorised
purpose is objective. This means that we do not ask whether the administrator thought or believed that
he was serving the authorised purpose, but rather whether, objectively speaking, the authorised purpose
has been achieved. The proof of unauthorised purpose therefore depends on the results or effects of the
exercise of power.
(b) exercising power using an unauthorised procedure
We find that the administrator usually uses an unauthorised procedure when the proper and correct
procedure is more difficult, time-consuming and cumbersome. The administrator then circumvents this
correct, but difficult procedure by using a short cut. This form of abuse of power actually undermines the
law and boils down to action in fraudem legis – fraudulent action – since the administrator is consciously
trying to evade the procedural provisions.
5
ADL2601/201
(c) exercising power using ulterior motives to defeat the purpose of the law – expressed in the Latin
phrase in fraudem legis
In the past, our courts tended to equate the exercise of an administrative power for an unauthorised
purpose with exercising power with an ulterior motive. The Latin phrase which was used to describe
exercising power with an ulterior motive is in fraudem legis. Roughly translated it means “to defeat the
law”.
However, we have to distinguish clearly between the two. When exercising power in fraudem legis the
administrator deliberately and intentionally evades the provisions of the empowering statute. The court
described such exercise of power as follows in Dadoo Limited v Krugersdorp Municipal Council:
‘An examination of the authorities therefore leads me to the conclusion that a transaction is in fraudem
legis when it is designedly disguised so as to escape the provisions of the law, but falls in truth within
these provisions.’
To exercise power in fraudem legis presupposes a fraudulent intention which is not necessarily found in
the case of the abuse of power for an unauthorised purpose.
3.3 Explain the three elements of proportionality. (6)
(1) the suitability of the administrative measure;

(2) the necessity of the measure; and
(3) a weighing up of the advantages and disadvantages when considering the end
(purpose or objective) to be attained (narrow proportionality).
(1) Suitability
In accordance with this requirement, when exercising his or her powers, the administrator must choose
only those means (from the variety of means available) that are most appropriate for achieving the
desired end. This element is more or less the same as rationality. In other words, there must be a
rational connection between the end and the means.
(2) Necessity
Necessity means that the administrator must take only such steps as are necessary if any prejudice to
an individual is involved. In other words, the administrator must choose the action that causes least harm
to those who will be affected by the measure.
(3) Weighing up the advantages and disadvantages
This is a very important requirement in that it requires weighing up the advantages and disadvantages,
and considering the injury to the general public or the individual. The method or means must not be out
of proportion to the advantages – the ends to the community. In short, proportionality requires the
achievement of an even balance.
given content to the relevant provision in PAJA that deals with reasonableness. Do you think Mr
Molefe’s right to reasonable administrative action was infringed? Substantiate your answer with
reference to PAJA and case law. (10)
6
ADL2601/201
Act 18 of 1998 (MLRA). One of the questions before the Court related to the alleged unreasonableness
of the Chief Director’s action. The Court, per O’Regan J acknowledged the pre-Constitutional
jurisprudence which failed to establish reasonableness or rationality as a free-standing ground of review.
O’Regan J referred further to the Wednesbury decision and held that the PAJA test draws directly on the
language of that decision. However, she emphasised the importance of reading section 6(2)(h) in line
with the wording of section 33(1) of the Constitution. She held that even if it may be thought that the
language of section 6(2)(h), if taken literally, might set a standard such that a decision would rarely if
ever be found unreasonable, that is not the proper constitutional meaning which should be attached to
the subsection. The subsection must be construed consistently with the Constitution and in particular
section 33 which requires a simple test, namely, that an administrative decision will be reviewable if, in
Lord Cooke’s words [Lord Cooke in R v Chief Constable of Sussex, ex parte International Trader’s Ferry
Ltd], it is one that a reasonable decision-maker could not reach. What will constitute a reasonable
decision will depend on the circumstances of each case as it is context-based. O’Regan J then
proceeded to enumerate the factors relevant to determining whether a decision is reasonable. They
include

In this scenario one could argue that Ms Nasty’s decision was not reasonable, since no reasons for the
decision were given. The impact of decision also has a devastating effect on Mr Molefe. The nature of
the interests involved: Mr Molefe’s ability to travel abroad, Mr Molefe’s freedom of movement, Mr
Molefe’s ability to see his son. The impact: Mr Molefe will not be able to see his son, because he is
considered to be ‘old’ by Ms Nasty; subjective decision. Not clear why Ms Nasty is given the authority to
make this call, whether Mr Molefe is ‘old’ or not. No reasons were given for the decision.
3.5 Did the Department of Home Affairs comply with the discretionary requirements for procedural
fairness? Explain the relevant provision in PAJA to substantiate your answer.
(8)
The discretionary requirements for procedural fairness are listed in section 3(3) of PAJA).
The aggrieved party may be given an opportunity to obtain assistance, even legal assistance in complex
cases.
The aggrieved party may be given an opportunity to present and dispute information and arguments.
The aggrieved party may be given an opportunity to appear in person.
No, the Department did not comply, nor consider, any of these requirements. Mr Molefe was not given
the opportunity to obtain assistance. He was not given the opportunity to dispute information, nor was
allowed to appear in person.
3.6 Do you think that Ms Nasty’s response to Mr Molefe provides an adequate reason? Substantiate
your answer with reference to case law. (7)
The standard of reasons for the decision is that of adequacy. What will constitute adequate reasons will
depend on the circumstances of each and every case, that is, the context within which the decision is
taken. In Nomala v Permanent Secretary, Department of Welfare the termination of a disability grant was
at issue. The applicant was informed that she had to re-apply for a disability grant. In a “standard form
reasons letter” she was informed that her re-application had been unsuccessful since she was found to
7
ADL2601/201
be “not disabled”. In an application for the review of the refusal of the grant the “sufficiency or otherwise
of the reasons contained in this letter” constituted the core of the application.
The court held that ticking boxes on the “standard form reasons letter” is inadequate since this ticking of
boxes “... disclose nothing of the reasoning process or the information upon which it is based”.
The reasons given did not provide sufficient information for any disappointed applicant to prepare an
appeal. Furthermore, the reasons do not educate the beneficiary concerned about what to address
specifically in an appeal or a new application. It does not instill confidence in the process, and certainly
fails to improve the rational quality of the decisions arrived at.
In Minister of Environmental Affairs and Tourism v Phambili Fisheries (Pty) Ltd; Minister of
Environmental Affairs and Tourism v Bato Star Fishing (Pty) Ltd quoting Cora Hoexter the SCA held the
following:
[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.
In the same paragraph the court also quoted with approval from the Australian decision Ansett Transport
Industries (Operations) Pty Ltd v Wraith. The decision was to the effect that in order to provide adequate
reasons it is necessary for the decision-maker:
... [t]o explain this decision in a way which will enable a person aggrieved to say, in effect: “Even though I
may not agree with it, I now understand why the decision went against me. I am now in a position to
decide whether that decision has involved an unwarranted finding of fact, or an error of law, which is
worth challenging.”
This requires that the decision-maker should set out his understanding of the relevant law, any finding of
fact on which his conclusions depend (especially if those facts have been in dispute), and the reasoning
processes which led him to those conclusions. He should do so in clear and unambiguous language, not
in vague generalities or the formal language of legislation.
The response by the Department is not adequate reasons.
[45]
Question 4
4.1 List the three forms of internal control. (3)
Control by superior/senior administrators or specially constituted bodies/institutions (a higher body/more

senior person in the same department/office).
Parliamentary control (general administrative policy and matters of public concern may be questioned in
Parliament).
Control by public bodies and commissions, such as the public protector and the auditor-general.
4.2 What is locus standi? Explain this principle in terms of the relevant constitutional provision.
(7)
Locus standi or “legal standing” is the capacity of a person to bring a matter to court.
8
ADL2601/201
It is a basic rule of all legal systems that a party may take a matter to court only if he or she has an
identifiable interest in the outcome, that is, when he or she has sustained loss or damage.
The Constitution has broadened the scope or range of locus standi of individuals and groups to seek
relief in matters involving fundamental rights, including the right to just administrative action. In other
words, more people who have identifiable interests in the outcome of a decision may now approach the
court.
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.
Section 38 reads that
Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill
of Rights has been infringed or threatened, and the court may grant appropriate relief, including a
declaration of rights.
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.
4.3 List and explain the various forms of judicial control. (10)
Statutory appeal
- The courts may hear appeals only where this is provided for by statute.
- An appeal may be lodged against a final decision or final order, not against a provisional order.
- Details regarding the appeal will appear in the relevant statute.
An appeal is a rehearing of the matter which is restricted to the record of the proceedings.
- It may examine the merit of the decision.
Judicial review
- Grounds of review: infringement of a fundamental right or failure to comply with sec 6 of PAJA
- Review may go beyond the record to establish whether any irregularities were present, but may
not go into the merits
Interdict
- If the applicant fears and can prove that an action or impending action by the administrator will
affect his rights, he may apply for an interdict restraining the administrator from carrying out its
action
- Aimed at preventing unlawful administrative action
Mandamus
- Compelling the administrator to perform some or other statutory duty
9
ADL2601/201
- Mandamus cannot stipulate how the power should be exercised
Declaratory order
- Used when there is a clear legal dispute or legal uncertainty regarding the validity of
administrative action
- May also be used to determine whether actual or pending administrative action is lawful
Defence in criminal proceedings

- Administrative action may be challenged by raising its invalidity as a defence in criminal law
[20]
Total: {100}






ADL2601 October November 2017 memo
Set of facts:
Mr Modiga is the owner of a private game reserve (commonly known as Red Mountain), which is
situated in Limpopo. On 1 October 2017 Mr Modiga received a notice of expropriation in terms of
section 7 of the Expropriation Act 63 of 1975 from the Minister of Public Works stating the
following:
- The whole of the property (commonly referred to as Red Mountain) will be expropriated
- The proposed date of expropriation is 1 December 2017
- The offered amount of compensation is R200 000
The Minister of Public Works does have the power to expropriate Mr Modiga’s property – this is
clear in terms of section 2 of the Expropriation Act 63 of 1975 – which states that the Minister
may expropriate property for public purposes. However, Mr Modiga is unaware of the reasons for
the proposed expropriation. He was also not informed why the whole of his property, which
stretches over 2000 hectares of land, should be expropriated. In addition, the market value of
Red Mountain was estimated in July 2017 to be R60 million.
QUESTION 1
1.1 Is there a general administrative-law relationship present in the set of facts? Give a brief
reason for your answer. (3)
No, there is an individual administrative-law relationship, because the Minister’s decision only applies to
Mr Modiga and the relationship was created by an individual administrative decision. 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. Individual relationships are created by individual administrative
decisions. Furthermore, individual relationships are not affected by new general legislative provisions,
unless the amending Act specifically states that it affects the relationship.
1.2 Define “organ of state” with reference to the Constitution. Is there an organ of state in the
set of facts? Give a reason for your answer. (8)
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
TURN OVER

2 ADL2601
Oct/Nov 2017
9 (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.)
Yes. The Minister of Public Works is an organ of state; forms part of the administration in the national
sphere of government. Another mark if mention that Minister exercised a power/function in terms of
legislation (Expropriation Act).
1.3 List two binding sources of administrative law. (2)
The Constitution
Legislation
Case law
Common law
Administrative practice / custom or usage
Ubuntu
International law
1.4 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. (12)
by -
(ii) exercising a public power or performing a public function in terms of any legislation;
or
There are exceptions to the definition. Example. These exceptions are, however, not applicable to the
given facts.
Yes, there is an administrative action, ie the decision by the Minister to expropriate Mr Modiga’s property.
The Minister is an organ of state, who made a decision that negatively affects Mr Modiga’s rights. It has a
direct, external legal effect.
[25]
QUESTION 2
2.1 Answer the following questions. Each question is provided with a number of options as
possible answers. Only one option/statement in each question is correct. You must,
therefore, identify the correct option and write down the number of the option that you
have identified next to the question number.
b, a, c, a, d
TURN OVER

3 ADL2601
Oct/Nov 2017
2.1.1 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
2.1.2 The Minister’s decision in the set of facts is an example of a…

2.1.3 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?

(b) Reasonableness
(c) Lawfulness
(d) Impartiality
2.1.4 Which of the following is NOT a form of abuse of power by an administrator?

2.1.5 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.”

(b) SA Freight Consolidators (Pty) Ltd v Chairman, National Transport Commission
1987 4 SA 155 (W)
(5)
TURN OVER

4 ADL2601
Oct/Nov 2017
2.2 PAJA gives effect to the right to reasonable administrative action. The Constitutional Court
has given content to the relevant provision in PAJA that deals with reasonableness. Do
you think Mr Modiga’s right to reasonable administrative action was infringed?
Substantiate your answer with reference to PAJA and case law. (12)
Act 18 of 1998 (MLRA). One of the questions before the Court related to the alleged unreasonableness of
the Chief Director’s action. The Court, per O’Regan J acknowledged the pre-Constitutional jurisprudence
which failed to establish reasonableness or rationality as a free-standing ground of review. O’Regan J
referred further to the Wednesbury decision and held that the PAJA test draws directly on the language of
that decision. However, she emphasised the importance of reading section 6(2)(h) in line with the wording
of section 33(1) of the Constitution. She held that even if it may be thought that the language of section
6(2)(h), if taken literally, might set a standard such that a decision would rarely if ever be found
unreasonable, that is not the proper constitutional meaning which should be attached to the subsection.
The subsection must be construed consistently with the Constitution and in particular section 33 which
requires a simple test, namely, that an administrative decision will be reviewable if, in Lord Cooke’s words
[Lord Cooke in R v Chief Constable of Sussex, ex parte International Trader’s Ferry Ltd [1999] 1 All ER
129 (HL) at 157], it is one that a reasonable decision-maker could not reach. What will constitute a
reasonable decision will depend on the circumstances of each case as it is context-based. O’Regan J
then proceeded to enumerate the factors relevant to determining whether a decision is reasonable. They
include
In this scenario one could argue that the Minister’s decision was not reasonable (Yes, his right was
infringed), since no reasons for the decision were given. The impact of decision also has a devastating
effect on Mr Modiga. The nature of the interests involved: Mr Modiga’s house (personal property and
livelihood), the building of a house for the President (no reason why it should be there). The impact: Mr
Modiga will lose his entire business.
2.3 Suppose the Minister’s reason for the expropriation was that the Department of Public
Works required Mr Modiga’s property in order to build a house for the President of South
TURN OVER

5 ADL2601
Oct/Nov 2017
Africa’s new wife. Mention the three elements of “proportionality” and explain whether the
Minister’s decision to expropriate Mr Modiga’s property is reasonable (or not) with
reference to these elements. (8)
The three elements are: suitability, necessity and weighing up advantages and disadvantages.
In accordance with the requirement of suitability, when exercising his or her powers, the administrator
must choose only those means (from the variety of means available) that are most appropriate for
achieving the desired end. In other words, there must be a rational connection between the end and the
means. In the set of facts it is not clear why the state requires Mr Modiga’s farm.
Necessity means that the administrator must take only such steps as are necessary if any prejudice to an
individual is involved. In other words, the administrator must choose the action that causes least harm to
those who will be affected by the measure.
Finally, weighing up the advantages and disadvantages is a very important requirement in that it requires
weighing up the advantages and disadvantages, and considering the injury to the general public or the
individual. The method or means must not be out of proportion to the advantages – the ends to the
community. The disadvantage to Mr Modiga is severe, he will lose his entire farm, while the state can
build the house elsewhere.
[25]
QUESTION 3
3.1 Did the Minister comply with the mandatory requirements for procedural fairness? Explain
the relevant provision in PAJA to substantiate your answer. (8)
Section 3(2)(b) of PAJA lists the mandatory requirements:
In order to give effect to the right to procedurally fair administrative action, an administrator, subject to subsection
(4), must give a person referred to in subsection (1)
(i) adequate notice of the nature and purpose of the proposed administrative action;
(ii) a reasonable opportunity to make representations;
(iii) a clear statement of the administrative action;
(iv) adequate notice of any right of review or internal appeal, where applicable; and
(v) adequate notice of the right to request reasons in terms of section 5
The Minister in the given set of facts only informed Mr Modiga of the administrative action, ie that there
will be an expropriation. No. The Minister did not comply with any of the other requirements.
3.2 If the Minister decides to depart from the requirements of procedural fairness, as required
by PAJA, section 3(4)(b) of PAJA lists certain factors to be considered to determine
whether this decision to depart is reasonable and justifiable. List the factors as prescribed
by section 3(4)(b). (5)
- the objects of the empowering provision
TURN OVER

6 ADL2601
Oct/Nov 2017
- the nature and purpose of and the need to take administrative action
- the likely effect of the administrative action
- the urgency of taking the administrative action or the urgency of the matter
- the need to promote an efficient administration and good governance
3.3 Suppose Mr Modiga approached the Department of Public Works and requested reasons
for the Minister’s decision. Would the Minister be obliged to provide Mr Modiga with
reasons? Substantiate your answer with reference to the relevant provisions in PAJA. (5)
Yes. Section 5(1) requires the provision of written reasons at the request of any person whose rights have been
materially and adversely affected by any administrative action and who has not been given reasons for the action.
Section 5(1): Any person whose rights have been materially and adversely affected by administrative action and
who has not been given reasons for the action may, within 90 days after the date on which that person became
aware of the action or might reasonably have been expected to have become aware of the action, request that the
administrator concerned furnish written reasons for the action.
The administrator (to whom the request is made) is obliged to give that person adequate reasons in writing within
90 days of receiving the request (s 5(2)). In other words, the administrator must provide adequate reasons.
3.4 Suppose the Minister responded to Mr Modiga’s request for reasons as follows: “The
Department of Public Works requires the mentioned property in order to build a house.”
Do you think that this response provides an adequate reason? Substantiate your answer
with reference to case law. (7)
- There must be a link between the administrative action and the reasons given.
- The reasons must “suit” the administrative action.
- What will constitute adequate reasons will depend on the circumstances of each and every case,
that is, the context within which the decision is taken.
- In Nomala v Permanent Secretary, Department of Welfare 2001 8 BCLR 844 (E) the court found
that the reasons given must be sufficient information for any disappointed applicant to prepare an
appeal (the ticking of boxes in this instance disclose nothing of the reasoning process)
- In Minister of Environmental Affairs and Tourism v Phambili Fisheries (Pty) Ltd; Minister of
Environmental Affairs and Tourism v Bato Star Fishing (Pty) Ltd [2003] 2 All Sa 616 (SCA) the
court held that it 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.
TURN OVER

7 ADL2601
Oct/Nov 2017
- No. In this scenario one could argue that the reason given by the Minister was vague and
inappropriate, because it was insufficient. The reasons did also not suit the administrative
decision.
[25]
TURN OVER

8 ADL2601
Oct/Nov 2017
QUESTION 4
4.1 Briefly explain the three forms of internal control. (6)
- control by superior/senior administrators or specially constituted bodies/institutions (a higher body/more

senior person in the same department/office)
- parliamentary control (general administrative policy and matters of public concern may be questioned in
Parliament)
- control by public bodies and commissions, such as the public protector and the auditor-general
(Constitution has created a number of extrajudicial bodies/institutions that can assist in the creation of
such awareness and knowledge and, therefore, in controlling state authority as well)
4.2 What are the powers of senior administrators when exercising internal control? (4)
(1) The senior functionary or institution has the power to reconsider or re-examine – to “review” the decision and
then to confirm it, set it aside or vary the decision. When a decision is varied the decision is substituted by another.
(2) The senior functionary or institution may consider the validity, desirability or efficacy of the administrative
action in question. The controlling body may also take policy into consideration.
(3) Formal control is also exercised by examining the manner in which the decision was reached.
(4) Internal control, in the form of an internal appeal, does not give rise to a final and binding decision. As a result,
the same matter may be raised again within the same departmental hierarchy.
4.3 Why should internal remedies first be exhausted before an aggrieved person may
approach a court of law?
(2)
- It is unreasonable for a person to rush to court before his or her internal remedies have been exhausted.
- The internal remedies are usually cheaper and more expedient/easier to use.
- It helps to prevent the courts being overloaded with cases that may be more efficiently dealt with by the
administration itself.
- Section 7(2) of PAJA requires that internal remedies must first be exhausted
4.4 When would internal control not be the proper remedy? (7)

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

9 ADL2601
Oct/Nov 2017
(3) the aggrieved party has an option whether to use the extrajudicial remedy or to proceed direct to judicial
review (Jockey Club of SA v Feldman 1942 AD 340)
(4) the administrative authority has come to an unacceptable decision as a result of an error of law (eg when the
administrator by reason of “mistake of law” presumes that he or she has the authority to take action)
(7) the internal remedy cannot provide the same protection as judicial review (For example, in Msomi v Abrahams
1981 (2) SA 256 (N) this was held to be a strong indication that internal remedies need not be exhausted.)
4.5 Would the judicial remedy of mandamus assist Mr Modiga in this matter? Give reasons for
your answer. (2)
No, an interdict would be better suited to stop the Minister from expropriating the land.
OR
Yes, to provide reasons
OR
Yes, to comply with the statutory requirements.
4.6 List the orders that the court would be able to make in proceedings for judicial review with
reference to PAJA. (4)
In terms of section 8(1)(a) the court may direct the administrator

- to give reasons, or
- to act in a required manner (mandamus)
In terms of section 8(1)( b) the court may make an order prohibiting the administrator from acting in a particular
manner. (interdict)
In terms of paragraph (c) the court may grant orders setting aside decisions of the administrator.
In terms of section 8(1)(d) the court can declare the rights of the parties involved.
The court can grant a temporary interdict (temporary relief): section 8(1)(e).
The court can make an order as to costs (section 8(1)(f)).
[25]
Total: {100}
TURN OVER






ADL2601 MAY/JUNE 2017 Memorandum
Ms Naidoo is a citizen of a war-torn country in Africa. She fled her country of birth and entered
South Africa after a long journey. Ms Naidoo applies for asylum at the Department of Home
Affairs in terms of section 21(1) of the Refugees Act 130 of 1998. Her application for asylum is
rejected by the authorised refugee status determination officer without any input by Ms Naidoo.
No reasons for the rejection were given, but it later transpired that the rejection was based on
the informal notes of the refugee reception officer, working in the refugee reception office,
responsible for issuing her with the asylum seeker permit. From these notes the impression
might be gained that the decision had been influenced by certain irrelevant factors suggesting
bias on the part of the administrator. The Refugees Act makes provision for review by the
Standing Committee and appeal to the Appeal Board of a decision by a refugee status
determination officer.
Answer the following questions and substantiate your answers:
Question 1
1.1 Briefly explain what an administrative-law relationship is. Do you think Ms Naidoo is a
subject of an administrative-law relationship? (6)
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√. Ms
Naidoo is a subject of an administrative-law relationship as her rights are affected by the
exercise of state authority by the Department of Home Affairs√. Ms Naidoo is also in a
subordinate position.√
If a student indicates that this is an individual administrative-law relationship where rules

apply personally and specifically between the parties and the relationship is created by
individual administrative decisions√ an extra mark may be awarded.
1.2 Identify the administrative action in the set of facts. In your answer you should give a full
definition of the concept “administrative action” as provided in the Promotion of
Administrative Justice Act (PAJA) 3 of 2000. (13)
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.√ Example√ These exceptions are, however, not
applicable to the given facts√.
The decision to reject her application for asylum amounts to administrative action√ because it
complies with the definition in that it involves a decision by an organ of state (the refugee
status determination officer of the Department of Home Affairs)√ which has adversely affected
the rights of a person (Ms Naidoo)√ and which appears to have had a direct external legal
effect.√
1.3 Identify the organs of state in the set of facts and substantiate your answer by referring
to the applicable section of “organ of state” as provided in the Constitution. (6)
In terms of s 239√ of the Constitution the following are organs of state:
The Department of Home Affairs:√ (any department of state or administration in the national,
provincial or local sphere of government s 239(a));√
Refugee status determination officer:√ (any other functionary or institution (ii) exercising a
public power of performing a public function in terms of any legislation s 239(b)).√
Refugee reception officer:√ (any other functionary or institution (ii) exercising a public power
of performing a public function in terms of any legislation s 239(b)).√
Standing Committee and the Appeal Board:√ (any other functionary or institution (ii)
exercising a public power of performing a public function in terms of any legislation s 239(b)).√
(If a student gives the full definition in section 239 of the Constitution and then applies to the given facts,
marks should be awarded accordingly:
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 (ii) exercising a public power of performing a public function in
terms of any legislation.√
This does not include a judicial officer.√)
[25]

Question 2
2.1 Answer the following questions. Each question is provided with a number of options as
possible answers. Only one option/statement in each question is correct. You must,
therefore, identify the correct option and write down the number of the option that you
have identified next to the question number.
2.1.1 A general administrative-law relationship …
(a) is also known as a subjective relationship.
(b) is created by a decision by an administrator.
(c) is created by legislation.
(d) is not affected by new general legislative provisions.
2.1.2 Legislation is a binding source of administrative law and includes …
(a) administrative practice.
(b) judicial precedent.
(c) policy documents.
(d) regulations.
2.1.3 When did the rejection of Ms Naidoo’s application for asylum become operative (take
effect)?
(a) upon the decision becoming known
(b) upon the stated date of the commencement of the regulation
(c) upon the date of the judgment
(d) upon the expiry of 90 days
2.1.4 The decision to reject the application for asylum of Ms Naidoo …
(a) can be changed because it is a valid beneficial administrative act.
(b) can be changed because it is an invalid administrative act.
(c) cannot be changed because it is a judicial administrative act.
(d) cannot be changed because it is a valid burdensome administrative act.
2.1.5 Which one of the following is NOT an overarching concept incorporating all the
requirements for valid administrative action?

(a) applying one’s mind to the matter
(b) intra/ultra vires
(c) administrative accountability
(d) legality
(5)
2.1.1 (c )
2.1.2 (d)
2.1.3 (a)
2.1.4 (b)
2.1.5 (c )
2.2 The set of facts clearly states that Ms Naidoo’s application for asylum is rejected by an
authorised refugee status determination officer. Discuss the rules that apply when
delegation of powers is permitted (in other words a particular task is performed by a duly
authorised administrator). (5)
Note that the general authority to delegate as recognised by the Constitution is qualified by the
requirement that the delegation must be consistent with the enabling legislation. We find,
therefore, in most legislation that ministers, heads of departments and other senior
administrators are authorised to delegate their powers√. The following rules apply when
delegation of powers is permitted:
• If the administrator is authorised to perform a particular action and this entails the
exercise of discretion, the task concerned may not be delegated unless the delegation is
authorised by statute√.
• An administrator who exercises a discretionary power√ and makes a decision is not
prevented from instructing a subordinate administrator merely to implement the decision.
This does not constitute an unauthorised delegation, as the superior administrator
merely issues a mandate or instruction√.
• The rule against further delegation also implies that an administrator may not, in the
exercise of his or her discretion, put him or herself in the situation of having to accept
directions or orders/commands from another body. In other words, he or she must apply
his or her own mind to the matter√.
• An administrator may, without contravening the rule against delegation, appoint a fact-
finding committee√ to assist him or her, provided the actual discretion is ultimately
exercised by the proper authority (ie the administrator)√.

2.3 One of the rules of natural justice requires that the administrator should be impartial.
Discuss this rule against bias with reference to the above set of facts.
(7)
Nemo iudex in sua causa√ is one of the rules of natural justice and it is the rule against bias
or prejudice. It means that no-one can be the judge in their own cause√. One cannot act if
there is personal√ or financial interest√.
In Rose v Johannesburg Local Road Transportation Board 1947 4 SA 272 (W) the chairman of
the board dealing with transportation permits was a director of three taxi companies. His
financial interest in these clearly constituted bias in adjudicating on the permits√.
In Liebenberg v Brakpan Liquor Licensing Board 1944 WLD 52 the mayor of the town insisted
on being present when the board was considering a liquor licence application of his brother.
Although the board insisted this did not influence the decision, the court held that the suspicion
of bias was enough to set aside the decision because of the mayor’s personal interest√.
BTR Industries SA v Metal and Allied Workers Union 1992 3 SA 673 (A) also held that a
reasonable suspicion of bias satisfies the test√. The Constitutional Court confirmed this test in
the SACCAWU v Irvin & Johnson case√. The Constitutional Court preferred to use the phrase “a
reasonable apprehension of bias”. In other words the affected person merely has to prove an
appearance of bias rather than the existence of actual bias√.
There is bias (personal interest) in evidence here as the decision had been influenced by certain
irrelevant factors suggesting bias on the part of the administrator√.

2.4 PAJA gives effect to the right to reasonable administrative action by providing an
individual the capacity under section 6(1) to institute judicial review proceedings on the
ground that:
The exercise of the power or the performance of the function authorised by the
empowering provision, in pursuance of which the administrative action was purportedly
taken, is so unreasonable that no reasonable person could have so exercised the power
or performed the function (s 6(2)(h)).
Discuss this ground of review. (8)
PAJA stopped short of providing a wide and general ground of review based on the effect or
consequence of the action√. It has limited the ground for review to the requirement of "action
which is so unreasonable that no reasonable person could have exercised it" -a "reasonable
person test"√. This particular test preferred by the legislature is more or less similar to the
formulation we find in the English decision and now known as "Wednesbury unreasonableness"
or the "Wednesbury test"√. Lord Greene held as follows:
It is true to say that if a decision on a competent matter is so unreasonable that no reasonable authority could ever
have come to it, then the courts can interfere. That I think is quite right; but to prove a case of that kind would require
something overwhelming√.
Does the wording of section 6(2)(h ) re-introduces the administrator’s subjective disposition or
state of mind? (The subjective state of mind of the administrator determines whether the
administrative action is valid or not on the basis of reasonableness, and not the objectively
determinable effect or consequence of the action.) In other words, the wording of section 6(2)(h)
seems to bring us right back to the old traditional approach to reasonableness, that of gross
unreasonableness√. This would mean that only shocking or really bad instances of
unreasonableness will be reviewable on this basis, given the acceptance of the Wednesbury
test.√

Constitutional Court had the opportunity to pronounce on the meaning and content of
section 6(2)(h) in Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs 2004 4
SA 490 (CC)√. Regan J referred further to the Wednesbury decision and held that the
PAJA test draws directly on the language of that decision√. However, she emphasised
the importance of reading section 6(2)(h) in line with the wording of section 33(1) of the
Constitution√. Even if it may be thought that the language of section 6(2)(h), if taken literally,
might set a standard such that a decision would rarely if ever be found unreasonable, that is not
the proper constitutional meaning which should be attached to the subsection√. The subsection
must be construed consistently with the Constitution and in particular section 33 which requires
a simple test√, namely, that an administrative decision will be reviewable if, in Lord Cooke"s
words [Lord Cooke in R v Chief Constable of Sussex, ex parte International Trader’s Ferry Ltd
[1999] 1 All ER 129 (HL) at 157], it is one that a reasonable decision-maker could not reach.√
(If a student explains the requirements for proportionality (suitability, necessity and weighing up
advantages and disadvantages), give an extra mark. If the student mentions that reasonableness
depends on the circumstances of each case (give extra mark). If the student mentions the factors (identity
and expertise of decision-maker; impact of the decision on the lives and well-being of the community; the
range of factors to be considered; the nature and purpose of the decision; the nature of the objectives of
the empowering provision) give extra mark.)
[25]
Question 3
3.1 Does the decision to reject the application by Ms Naidoo for asylum constitute
procedurally fair administrative action in terms of PAJA? (15)
Any of the following marks with a maximum of 15 marks
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.√ Application to
the scenario.√
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)√
• 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 need to promote efficient administration and good governance. (s 3(4)(b))
Extra mark or two if above included.
Section 3(5) of PAJA states that the administrator may also follow a different but fair
procedure if the empowering provision authorises this.√
Ms Naidoo has not had procedurally fair treatment in terms of PAJA√ because, inter alia,
Ms Naidoo was 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 Ms Naidoo entitled to reasons for the decision to reject her application for asylum?
Discuss fully with reference to PAJA. (10)
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.√
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.√
Also see the minority judgment of Mokgoro and Sachs JJ in Bel Porto School Governing Body v
Premier of the Western Cape 2002 9 BCLR (CC); 2002 3 SA 265 (CC) as quoted in the study
guide (p 174).√
Clearly Ms Naidoo is entitled to reasons√ and needs to go through the various steps in section 5
of PAJA to obtain these.√
[25]
Question 4
4.1 Discuss the powers of superior/senior administrators when exercising internal control.
(5)

The senior functionary or institution has the power to reconsider or re-examine -to "review"√ -the
decision and then to confirm it, set it aside or vary the decision√. When a decision is varied the
decision is substituted by another.
The senior functionary or institution may consider the validity, desirability or efficacy of the
administrative action in question√. The controlling body may also take policy into
consideration√.
Formal control is also exercised by examining the manner in which the decision was reached√.
Internal control, in the form of an internal appeal, does not give rise to a final and binding
decision√. As a result, the same matter may be raised again within the same departmental
hierarchy√.
4.2 List the grounds of review relating to the decision-maker (administrator) (s 6(2)(a)(i) –(iii)
of PAJA). (4)
• Action known as ultra vires action at common law√. This is when the administrator was
not authorised by the empowering provision to take the particular action. Ie excess of
power by the administrator or lack of authority of the administrator, for example when the
administrator lacked specified qualifications√; exceeded the geographical limits of the
powers conferred√; did not act in accordance with provisions relating to time√;
administrative actions exceeded the objectives or purpose of the empowering
provisions√.
• Unauthorised delegation√. This is when the administrator delegated his or her power
without any authority to do so.
• Nemo iudex in sua causa (the rule against bias)√. This is when the administrator was
biased.
Statutory appeal
- An appeal may be lodged against a final decision or final order, not against a provisional
order.
Judicial review
- 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)
Interdict

- If the applicant fears and can prove that an action or impending action by the
administrator will affect his rights, he may apply for an interdict restraining the
administrator from carrying out its action
- Aimed at preventing unlawful administrative action
Mandamus
- Compelling the administrator to perform some or other statutory duty
- Mandamus cannot stipulate how the power should be exercised
Declaratory order
- Used when there is a clear legal dispute or legal uncertainty regarding the validity of
administrative action
- May also be used to determine whether actual or pending administrative action is lawful

- Administrative action may be challenged by raising its invalidity as a defence in criminal
law
4.4 Can Ms Naidoo apply for judicial control? (6)
There is an obligation to exhaust internal remedies before approaching the courts√.
PAJA recognises this precondition√ in section 7 (no court or tribunal shall review an
administrative action in terms of this Act unless any internal remedy provided for in any other
law has first been exhausted). A court or tribunal must, if it is not satisfied that any internal
remedy has been exhausted, direct that the person concerned must first exhaust such remedy
before instituting proceedings in a court or tribunal for judicial review in terms of this Act√. A
court or tribunal may, in exceptional circumstances and on application by the person concerned,
exempt such person from the obligation to exhaust any internal remedy if the court or tribunal
deems it in the interest of justice√√.
In view of the provisions of The Refugees Act for review by the Standing Committee and appeal
to the Appeal Board of a decision by a refugee status determination officer√ one can conclude
that Ms Naidoo cannot apply for judicial control, before exhausting the internal remedies√.
[25]
TOTAL: {100}

Administrative Law (ADL2601) May/June 2017 MEMORANDUM
NB: Please keep your study guide close by and read the applicable sections to check
the student’s answers if you are unsure. Give credit if a student refers to relevant
case law.
Set of facts
Ms Vuma applies to a provincial government’s Department of Social Development for a

disability grant under the Social Assistance Act 59 of 1992 and its regulations. She is
informed that her application would take about three months to be processed and she is
given a properly dated and stamped receipt as required by the regulations. Ms Vuma waits
for the three-month period to lapse before making enquiries. Her enquiries prove to be
completely fruitless and she receives no information about the outcome of her application. A
number of times she receives the following reply from an administrator: “Your application is
still in the process of being decided upon: come back next week”.
Answer the following questions and substantiate your answers with reference to the set of
facts where applicable.
Question 1 (any 10 marks)
1.1 Distinguish between a general and an individual administrative law relationship

and give an example of each with reference to the set of facts. (10)
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.√
The general relationship is created, changed or ended by legislation (including

delegated/subordinate legislation),√ that is by general means. In other words, a general
administrative-law relationship cannot be created, changed or ended by, for example, a
decision by the Director-General of Home Affairs.√
For example, the Social Assistance Act 59 of 1992 and its regulations apply to all the
people, like Ms Vuma who apply for a disability grant.√
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.√
Individual relationships are created by individual administrative decisions.√
Furthermore, individual relationships are not affected by new general legislative provisions,
unless the amending Act specifically states that it affects the relationship.√ The presumption
is that an existing individual relationship is not affected by amending legislation -an example
of the presumption against retrospectivity.√
For example, an individual administrative-law relationship exists between Ms Vuma and the
administrator at the Department of Social Development.√

You can also give a maximum of two marks if the student explains the administrative law
relationship as being a vertical relationship in terms of which the individual is in the
subordinate position.
1.2 Give the definition of “administrative action” as provided in section 1 of in the

Promotion of Administrative Justice Act (PAJA) 3 of 2000. (10)
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.√ [Example√]
NB No mark for sec 1 of PAJA (it is mentioned in the question).

1.3 In view of the definition of “administrative action” state what the administrative
action is in the set of facts and also state why in your opinion such action
qualifies as administrative action by referring to the definition of
“administrative action”. (5)
Any 5 marks.
Administrative action: The failure by the administrator at the Department of Social

Development to make a decision in respect of Ms Vuma’s application for a disability grant.√
It complies with the definition in that it involves a decision/failure to make a decision √
by an organ of state (the administrator at the Department of Social Development)√
exercising a public power or performing a public function in terms of legislation (the Social
Assistance Act 59 of 1992 and its regulations)√ which has adversely affected the rights of
a person (Ms Vuma)√ and which appears to have had a direct external legal effect.√ The
exceptions do not apply.√
1.4 When does administrative action take effect? (3)
Any three marks.
Legislative administrative acts√ affect an individual as soon as the regulation or proclamation

has been promulgated and/or the stated date of commencement arrives.√
Judicial/adjudicative administrative acts√ usually take effect as soon as the particular judicial
institution -the tribunal or board -gives its ruling or delivers its judgment.√
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).√
1.5 List any two (2) binding sources of administrative law. (2)
Any two of the following;
The Constitution

Legislation
Case law/judicial precedent
Common law
Administrative practice (custom or usage)
International law
[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 number of the option that you have identified as the correct one
next to the question number.
2.1 Which one of the following in NOT a key feature of administrative law?
(1) policy documents
(2) state authority
(3) administrative action
(4) control of administrative action
2.2 An organ of state is … .
(1) defined in section 195 of the Constitution

(2) defined in section 239 of the Constitution.
(3) not defined in the Constitution
(4) defined in PAJA
2.3 Legislative administrative acts are … .
(1) not administrative action

(2) not published in Government Gazettes
(3) published in Government Gazettes
(4) judicial administrative acts
2.4 When the administrator cannot amend repeal or vary his/her decision he/she is said
to be … .
(1) intra vires

(2) ultra vires
(3) functus officio
(4) inefficient
2.5 Section 33 of the Constitution provides for just administrative action and therefore …
.
(1) the individual is unprotected in his/her dealings with administrators

(2) it is aimed at assisting administrators to abuse their powers
(3) the principles and values of section 195(1) of the Constitution does not
contribute to just administrative action
(4) it represents the over-arching constitutional requirement that all
administrative action must comply with
2.6 Deconcentration is a kind of delegation where … .
(1) no control over the delegate is possible

(2) the senior administrator makes a decision and then hands it over to another
administrator to implement

(3) the delegator transfers certain powers to an independent body

(4) powers are delegated between administrators within the same hierarchy
2.7 Legitimate expectation … .
(1) gives you a right to a hearing, and guarantees success in the application
(2) gives you a right to a hearing, but not necessarily to succeed in the
application
(3) apply to situations in which the application of reasonableness is in issue
(4) apply to situations in which the application of the right to reasons is in issue
2.8 Which one of the following statements is correct?
(1) The Auditor-General must only report on the accounts, financial statements
and management of the national state departments.
(2) The Auditor-General must report on any institution that receives money
for a public purpose.
(3) The Auditor-General is not a chapter 9 (of the Constitution) institution.
(4) The Auditor-General does not support constitutional democracy.
2.9 Section 4 of PAJA applies in cases where an administrative action affects the rights
of the public and thus … .
(1) a public enquiry would be inappropriate

(2) a notice and comment procedure would be inappropriate
(3) has a general impact
(4) does not have a general impact
2.10 The audi alteram partem rule … .
(1) is a statutory rule

(2) means that all action must be reasonable
(3) facilitates accurate and informed decision making
(4) facilitates the fair distribution of work
1, 2 ,3, 3, 4, 4, 2, 2, 3, 3.
[10]
Question 3
3.1 When delegation powers are permitted certain rules apply. List these rules. (4)
(1) If the administrator is authorised to perform a particular action and this entails the
exercise of discretion, the task concerned may not be delegated unless the delegation is
authorised by statute.√
(2) An administrator who exercises a discretionary power and makes a decision is not
prevented from instructing a subordinate administrator merely to implement the decision.√
(3) The rule against further delegation also implies that an administrator may not, in the
exercise of his or her discretion, put him or herself in the situation of having to accept
directions or orders/commands from another body.√ In other words, he or she must apply his
or her own mind to the matter.√
4) An administrator may, without contravening the rule against delegation, appoint a fact-
finding committee to assist him or her, provided the actual discretion is ultimately exercised
by the proper authority (ie the administrator).√

3.2 Discuss the Constitutional Court’s interpretation of the right to reasonable

administrative action as decided in Bato Star Fishing (Pty) Ltd v Minister of
Environmental Affairs. (10)
Any 10 marks.
The Constitutional Court had the opportunity to pronounce on the meaning and content of
section 6(2)(h) in the landmark decision of Bato Star Fishing (Pty) Ltd v Minister of
Environmental Affairs. This decision dealt with the allocation of fishing quotas by the Chief
Director (responsible for marine management) in the Department of Environmental Affairs
and Tourism.√ The appellant challenged the Chief Director’s allocation of his (the
appellant’s) fishing quota in terms of the provisions of the Marine Living Resources Act 18 of
1998 (MLRA). One of the questions before the Court related to the alleged
unreasonableness of the Chief Director’s action.√ The Court, per O’Regan J acknowledged
the pre-Constitutional jurisprudence which failed to establish reasonableness or rationality as
a free-standing ground of review.√ O’Regan J referred further to the Wednesbury decision
and held that the PAJA test draws directly on the language of that decision.√ However, she
emphasised the importance of reading section 6(2)(h) in line with the wording of section
33(1) of the Constitution.√ She held that even if it may be thought that the language of
section 6(2)(h), if taken literally, might set a standard such that a decision would rarely if ever
be found unreasonable, that is not the proper constitutional meaning which should be
attached to the subsection.√ The subsection must be construed consistently with the
Constitution and in particular section 33 which requires a simple test,√ namely, that an
administrative decision will be reviewable if, in Lord Cooke’s words [Lord Cooke in R v Chief
Constable of Sussex, ex parte International Trader’s Ferry Ltd [1999] 1 All ER 129 (HL) at
157], it is one that a reasonable decision-maker could not reach.√ What will constitute a
reasonable decision will depend on the circumstances of each case as it is context-based.√
O’Regan J then proceeded to enumerate the factors relevant to determining whether a
decision is reasonable. They include
(a) the nature of the decision;√
(b) the identity and expertise of the decision-maker;√
(c) the range of factors relevant to the decision;√
(d) the reasons given for the decision;√
(e) the nature of the competing interests involved; and√
(f) the impact of the decision on the lives and well-being of those affected.√
3.3 One of the rules of natural justice is the rule against bias or prejudice (the
nemo iudex in sua causa rule). Discuss this rule with reference to case law. (6)
Any 6 marks.
The foundation of the nemo-principle is rooted in what Cora Hoexter (2007:405) calls two
"common-sense rules of good administration": the first is that a decision will be more than
likely be sound when the decision-maker is unbiased or impartial,√ and the second that the
public will have more faith in the administrative process when "justice is not only done, but
seen [her emphasis] to be done".√
The rule basically means that no person may be the judge in his/her own case. √

The presence of pecuniary/financial interest√

In Rose v Johannesburg Local Road Transportation Board,√ the chairman of the board
responsible for the granting or refusal of transport licences (the permits), was at the same
time the director of three large taxi companies. One of these companies opposed the
application for such permits. It was apparent that the company, a large taxi company in
Johannesburg, would benefit from the refusal of applications. Despite this the chairman
refused to stand back and participated in the hearing.
The court found that the reasonable person would realise that the chairman was indeed
biased because of his financial/pecuniary interest in the taxi company, and also because that
company was one of the objectors.√
Personal interest √
Liebenberg v Brakpan Liquor Licensing Board√, the mayor of the town insisted on being
present when liquor licence applications were being heard, despite the fact that one of the
applicants was his brother. The licence was granted to the brother, and despite the fact that
the other members submitted affidavits to the effect that they had not been influenced by the
mayor’s presence, the court found that his relationship had led to a suspicion of bias, and set
the decision aside.√
The court held the following (at 54-55): Every person who undertakes to administer justice,
whether he is a legal official or is only for the occasion engaged in the work of deciding the
rights of others, is disqualified if he has a bias which interferes with his impartiality; or if there
are circumstances affecting him that might reasonably create the suspicion that he is not
impartial.√
The test to determine bias was formulated by the Appellate Division (now the Supreme
Court of Appeal (SCA)) in BTR Industries SA v Metal and Allied Workers Union√ as follows:
Therefore one is not required to show that there was in fact no bias or partiality in the
process: the criterion is that no reasonable person would have had a perception or
suspicion/apprehension of bias. In other words, the affected individual merely has to prove
an appearance of bias or partiality rather than the existence of actual bias.√
South African Commercial Catering and Allied Workers Union (SACCAWU) v Irvin &
Johnson Ltd (Seafoods Division Fish Processing)√ the Constitutional Court in dealing with
the recusal of a judicial officer on grounds of bias, confirmed the correctness of the test
adopted by the Supreme Court of Appeal.√ However, the Constitutional Court preferred to
use the phrase "a reasonable apprehension of bias" rather than "a reasonable suspicion of
bias" due to the "inappropriate connotations which might flow from the use of the word
"suspicion" in this context".√
Note: It is fine if the student refers to the Rose case (and not give the full case name),
provided that he/she must explain it to some extent. Merely mentioning the case is not
adequate.
3.4 Section 3 of PAJA provides for procedural fairness. Discuss the mandatory
and discretionary requirements for procedural fairness as set out in PAJA with
reference to case law. (10)

Mandatory requirements: (these seem like a codification of rules of natural justice) (s

3(2)(b) of PAJA)√
Also adequate if the student refers to s 3(2) and not 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√
Van Huyssteen NO v Minister of Environmental Affairs and Tourism,√ that the right to
procedurally fair administrative action must be given a generous interpretation.√ The
purpose of this generous interpretation is to include any situations not covered by the Act.
Earthlife Africa (Cape Town) v Director-General: Department of Environmental Affairs and

Tourism√ The case deals with the intended construction of a pebble bed modular reactor at
Koeberg in Cape Town and the applicants" challenge of the decision to authorise the
construction.√ The court per Griesel J held (at para 53) that What is required in order to give
effect to the right to a fair hearing is that the interested party must be placed in a position to
present and controvert evidence in a meaningful way.√ In order to do so, the aggrieved party
should know the "gist" or substance of the case that it has to meet.√
Discretionary requirements: (s 3(3) of PAJA)√

• Opportunity to obtain assistance, even legal assistance in complex cases√
• Opportunity to present and dispute information and arguments√
• Opportunity to appear in person√
Cekeshe v Premier, Eastern Cape√ and Bam-Mugwanya v Minister of Finance and

Provincial Expenditure√ the court held that a fair hearing does not necessarily require that an
opportunity be given to an affected person to appear personally at an oral hearing.√
[30]
Question 4
4.1 Suppose Ms Vuma’s application for a disability grant is summarily refused by

the administrator without providing any reasons.
(a) Section 5 of PAJA provides for the furnishing of reasons as required by

section 33(2) of the Constitution. Explain to Ms Vuma what section 5 of
PAJA entails. (6)
Any 6 marks.
Section 5(1) √ requires the provision of written reasons at the request of any person whose
rights have been materially and adversely affected by any administrative action and who has
not been given reasons for the action.√
Section 5(1) reads that any person whose rights have been materially and adversely
affected by administrative action and who has not been given reasons for the action may,
within 90 days after the date on which that person became aware of the action or might
reasonably have been expected to have become aware of the action, request that the
administrator concerned furnish written reasons for the action.√

The administrator (to whom the request is made) is obliged to give that person adequate
reasons in writing within 90 days of receiving the request √ (s 5(2)).√ In other words, the
administrator must provide adequate reasons.√
Section 5(3) √ provides for a rebuttable presumption.√ In other words, in the absence of
proof to the contrary in judicial review proceedings, it will be presumed that where no
reasons are given the administrative action was taken without good reason.√ This means
that the onus will lie on the administrator to prove that the failure to provide reasons was in
fact based on good reason.√
Can also award marks if the student discusses ss 5(4), 5(5) and 5(6) of PAJA.
(b) Explain to Ms Vuma how the furnishing of reasons can assist her (in
other words you also have to explain to her the importance of reasons).
(6)
Any 6 marks:
Reasons show how the administrative body functioned when it took the decision √ and in
particular how the body performed the action √ – whether that body acted lawfully or
unlawfully, √ rationally or arbitrarily, √ reasonably or unreasonably. √ An individual, who
wishes to challenge an administrative decision is at a tremendous disadvantage where
reasons are not provided, √ and in some instances the refusal may prove fatal to his or her
case. How can such an affected person raise issues such as, for example, failure on the part
of the administrator to act lawfully, to act procedurally fairly or reasonably on internal appeal
or judicial review, when there is no information or anything concrete on which to base this
review or appeal as reasons for the decision have not been given? √ After all, how can any
of us support or even prove our argument that the administrator failed to fulfil any of the
requirements for just administrative action, when we have no concrete reasons for his or her
decision? √
In their minority judgment in Bel Porto School Governing Body v Premier, Western Cape√
2002 9 BCLR 891 (CC); 2002 3 SA 265 (CC) Mokgoro J and Sachs J summarised the
justification for the provision of reasons as follows:
The duty to give reasons when rights or interests are affected has been stated to constitute
an indispensable part of a sound system of judicial review. Unless the person affected can
discover the reason behind the decision, he or she may be unable to tell whether it is
reviewable or not and so may be deprived of the protection of the law. √ Yet it goes further
than that. The giving of reasons satisfies the individual that his or her matter has been
considered and also promotes good administrative functioning because the decision-makers
know that they can be called upon to explain their decisions and thus be forced to evaluate
all the relevant considerations correctly and carefully. √ Moreover, as in the present case,
the reasons given can help to crystallize the issues should litigation arise. √
4.2 Discuss the role and powers of the Public Protector. (6)
Any 6 marks
The office of Public Protector has been created to curb administrative excesses.√ In other
countries the Public Protector is known as the "ombud". An ombud is an administrator/official
who investigates citizens" complaints against the public administration and its officials.√
Powers:
- to investigate any conduct in respect of state affairs or in the public administration in any
sphere of government that could be improper, or could result in any impropriety√

- to report on that conduct√

- to take appropriate remedial action√
- may not investigate court decisions √
- must be accessible to all persons and communities√
- reports of the Public Protector must be open to the public.√ In exceptional circumstances,
which must be defined in national legislation, the reports may be kept confidential√
4.3 What are the powers of the senior administrators when exercising internal
control? (4)
Any 4 marks.
The senior functionary or institution has the power to reconsider or reexamine -to "review" -
the decision√ and then to confirm it, set it aside or vary the decision√.
The senior functionary or institution may consider the validity, desirability or efficacy of the
administrative action in question.√ The controlling body may also take policy into
consideration. √
Formal control is also exercised by examining the manner in which the decision was
reached.√
Internal control, in the form of an internal appeal, does not give rise to a final and binding
decision.√ As a result, the same matter may be raised again within the same departmental
hierarchy.√
4.4 List the forms of judicial control. (6)
Statutory appeal
Judicial review
Interdict
Mandamus
Declaratory order
4.5 Indicate which one of these forms of judicial control can be used to help Ms
Vuma and why (2)
Any 2 marks.
Mandamus√
- Compelling the administrator to perform some or other statutory duty (making a
decision).√
- Mandamus cannot stipulate how the power should be exercised.√
[30]
Total: 100






1 The October/November 2016 examination paper
Set of facts:
Ms Connie Coward, scared of the high crime rate in Heaven-on Earth Valley where she lives, applies for
a licence to possess a firearm in terms of section 14 of the Firearms Control Act 60 of 2000. The Act
provides for a Designated Firearms Officer (DFO) of a certain rank above constable stationed at a
particular police station (established in terms of the South African Police Services Act 68 of 1995) to
make the decision to issue a licence or not. The licence is refused by a sergeant at the police station. Ms
Coward was afforded no hearing.
Ms Coward seeks your opinion regarding her legal position.
Answer the following questions and substantiate your answers with reference to the set of facts above
where applicable.
Question 1
1.1 Explain the characteristics of the administrative-law relationship. What kind of administrative-law
relationship is in evidence in the set of facts should you find that such a relationship is in
evidence? Provide a reason for your conclusion. (5)
2
ADL2601/201
An administrative-law relationship exists between two parties in an unequal /vertical relationship. One of
Yes, an individual administrative-law relationship is in evidence since Ms Coward in a subordinate

position and the Designated Firearms Officer (DFO) (organ of state) is in a position of state authority.
It is also important to note that the relationship is characterised by a situation when rules apply
personally and specifically between the parties in a subordinate position and that the relationship is
created by individual administrative decisions.
1.2 Define “organ of state” with reference to the Constitution. Identify the organs of state in the set of
facts and provide reasons for your answer. (8)
In terms of s 239 of the Constitution an “organ of state” includes:
(a) any department of state or administration in the national, provincial or local sphere of government;
or
(b) any other functionary or institution that (i) exercises a power or performs a function in terms of the
Constitution or a provincial constitution; or (ii) exercises a public power or performs a public
function in terms of any legislation.
A court or a judicial officer is excluded.
The organs of state which can be identified are the sergeant and the police station. The sergeant
because he is a functionary who is (i) exercising a power or performs a function in terms of the
Constitution or (ii) exercises a public power or performs a public function in terms of any legislation.
The police station as such because it represents a department of state or administration established in
terms of the pertinent legislation.
1.3 Is “administrative action” in evidence in the set of facts? In your answer you should give as a
point of departure to your answer a full definition of the concept “administrative action” as found in
section 1 of the Promotion of Administrative Justice Act 3 of 2000 (PAJA).
(12)
Section 1 of PAJA defines "administrative action” as any decision taken, or any failure to take a decision,
by -
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.
The decision not to grant the firearm licence amounts to administrative action because it complies with
the definition in that it involves a decision by an organ of state (the DFO at the police station) which has
adversely affected the rights of a person (Ms Coward) and which appears to have had a direct external
legal effect.
[25]
3
ADL2601/201
Question 2
answers. Only one option or statement in each question is correct. You must therefore identify
the correct option and write down the number of the option that you have identified as the
correct one next to the question number. (The correct answer is marked in bold.)
2.1.1 Administrative law is NOT concerned with …
(a) basic values and principles governing the public administration.

(b) the actions of and interaction between the organs of state of the three branches of
government: the legislature, the executive and the judiciary.
(c) the application of the common-law rules of natural justice.
(d) the day-to-day business of implementing and administering/applying policy adopted by
government.
2.1.2 A subjective or an individual administrative-law relationship …
(a) is affected by new general legislative provisions.

(b) cannot be created, changed or ended by a decision of a director-general of any department of
state.
(c) is characteristic of a relationship where legal rules governing the relationship between parties
apply to all the subjects within a particular group.
(d) applies personally and specifically between parties.
2.1.3 The Firearms Control Act 60 of 2000 is an example of …
(a) persuasive source of law.

(b) binding source of law.
(c) policy document.
(d) international document.
2.1.4 Which one of the following decisions does NOT qualify as administrative action?
(a) The President pardons an offender.

(b) The Executive Council of a province prepares and initiates provincial legislation.
(c) The Minister of Basic Education issues new regulations prohibiting all politicians from addressing
learners at schools.
(d) The municipality of Heaven-on-Earth Valley administers the by-laws it made.
2.1.5 In … Van Deventer J held the following “… [g]ross unreasonableness is no longer a requirement
for review. The constitutional test embodies the requirement of proportionality between the
means and the end.”
(a) Roman v Williams 1997 9 BCLR 1267; 1998 1 SA 270 (C)

(b) Kotzé v Minister of Health 1996 3 BCLR 417 (T)
(c) Claude Neon v City Council of Germiston 1995 5 BCLR 554 (W)
(d) Tettey v Minister of Home Affairs 1999 1 BCLR 68 (D)
(5)
4
ADL2601/201
2.2 What does the principle “legality” refer to? Briefly mention how this principle is relevant to the set
of facts. (3)
“Legality” is a principle used by the courts to determine whether administrative action was not only
authorised by law but also performed in accordance with the prescripts laid down by the law (the
Constitution in particular). The basis for legality is that the public administration must serve and promote
the public interest, and protect as well as respect fundamental rights.
Since legality can be said to mean that organs of state and individuals exercising public power are bound
by the law and are not elevated above it, the fact that Ms Coward’s application was refused without the
provision of reasons resulted in the principle of legality being negated.
2.3 Suppose the sergeant told a constable that he (the constable) can issue the firearm license to Ms
Coward and that he may use his own discretionary power to either refuse the licence or issue it.
Has any administrative-law rule been contravened? (4)
The rule against delegation of powers has been contravened. The decision regarding the licence was not
made by a Designated Firearms Officer (DFO). The rule finds expression in the Latin maxim delegatus
delegare non potest (“the person to whom a power is granted may not delegate it to another”). The
general rule is that where a discretionary power has been granted to a particular functionary because of
his or her specific qualifications, knowledge or expertise, the exercise of this discretion cannot be
delegated to another functionary or institution (if not, it will undermine the requirement that powers must
be exercised by an administrator with specific qualifications, knowledge or expertise).
The leading case dealing with delegation is Shidiack v Union Government 1912 AD 642 in which it was
held:
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 [i.e. “someone else”]. The person concerned has a right to
demand the judgment of the specially selected officer (at 648).
2.4 Suppose the Designated Firearms Officer (DFO) told Ms Coward that should she pay him a certain
amount of money he would see to it that her application is successful and that she will have her
firearm licence within a few days. Do you think any abuse of power by the DFO is in evidence in
such a scenario? Introduce you answer by (a) listing the various forms of abuse of power one
encounters in administrative law and (b) proceed to explain the form of abuse you think is relevant
in the scenario. (8)
(a) The list of the various forms of abuse of power:
• Exercising power with an unauthorised or ulterior purpose;

• Exercising power using an unauthorised procedure; and
• Exercising power using ulterior motives to defeat the purpose of the law (expressed in the Latin
phrase in fraudem legis)
(b) The form of abuse relevant to the scenario is: Exercising power using ulterior motives to defeat the
purpose of the law (expressed in the Latin phrase in fraudem legis). The use of power in fraudem
legis means to deviate deliberately from the purpose of the empowering statute. In other words,
5
ADL2601/201
what is evident from the set of facts is that the DFO in exercising power uses ulterior motives to
“defeat” the law (acts in fraudem legis).
The action by the DFO can therefore be described as an example of the perversion/undermining of
the purpose of the Act. What is more, the action of the DFO shows a particular state of mind – a
dishonest one – to make money in a dishonest way, to issue the licence with strings attached.
[20]
Question 3
3.1 PAJA gives effect to the right to reasonable administrative action expressed in section 33(1) of
the Constitution through the recognition of unreasonableness as a ground of review (s 6(2)(h)).
3.1.1 In what Constitutional Court case did Justice O’Regan explain the content of this ground of
review? (2)
Bato Star Fishing (Pty) Ltd 2004 (4) SA 490 (CC)
3.1.2 Which English law case did Justice O’Regan refer to in this decision? Briefly explain the test that
was set out in this case as interpreted by her. (3)
The Wednesbury-decision (she held that the PAJA test draws directly on the language of that decision –
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680 (CA). In that
decision the Court held that a decision is “so unreasonable that no reasonable authority could ever have
come to it” (at 683E and 685C) – the exact words of section 6(2)(h).
3.1.3 List the factors Justice O’Regan identified to be considered when determining whether a decision
is reasonable or unreasonable. (6)
- the nature of the decision

- the identity and expertise of the decision-maker
- the range of factors relevant to the decision
- the reasons given for the decision
- the nature of the competing interests involved
- the impact of the decision on the lives and well-being of those affected.
3.1.4 Suppose the application of Ms Coward complies with all the legal requirements but the reason
provided by the DFO for refusing granting her a licence is that he is of the opinion that women
carrying firearms are not feminine. Do you think the DFO’s decision is reasonable? Substantiate
your answer. (4)
What will constitute a reasonable decision will depend on the circumstances of each case as it is context
based. The simple test for unreasonableness as set out in Bato Star is one that states that administrative
action will be reviewable, if it is one that a reasonable decision-maker could not reach. Given the factors
enumerated by O’Regan, J (particularly the nature of the decision and reason given by the DFO) the
decision based on the subjective view of the DFO is unreasonable.
3.2 Do you think an adherence to either the common-law rules of procedural fairness or the rules
relating to procedural fairness as provided for in PAJA is in evidence given the set of facts
provided above? (15)
6
ADL2601/201
Common-law rules are encapsulated in the rules of natural justice. The rules include the audi alteram
partem rule as interpreted and developed by our courts, consists of the following:
The individual must be given an opportunity to be heard on the matter (ie the opportunity to put his/her
case).
The individual must be informed of considerations which count against him or her.
Reasons must be given by the administrator for any decisions taken.
Over and above the three-legged audi alteram partem rule, the rules of natural justice embrace also a
second rule, namely nemo iudex in sua causa (literally: no-one may be a judge in his/her own cause). In
other words, the decision-maker must be, and must be seen (“reasonably perceived”) to be impartial or
unbiased. This is known as the rule against bias.
The most common examples of bias are the following:
(a) the presence of pecuniary/financial interest; and

(b) the presence of personal interest.
The provisions of PAJA (section 3):
Fair administrative practice depends on the circumstances of each case (s 3(2)(a) of PAJA).


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 need to promote efficient administration and good governance (s 3(4)(b))
The decision to refuse the licence does not constitute procedurally fair administrative action in terms of
PAJA because, inter alia: Ms Coward was not given an opportunity to make representations (an
opportunity to be heard); 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.
[30]
7
ADL2601/201
Question 4
4.1 Return to the reason provided by the DFO (see question 3.1.4 above) and explain whether you
would regard the reason provided as “adequate”. Refer to relevant case law. (5)
Section 5 of PAJA provides for the furnishing of reasons as required by section 33(2) of the Constitution.
In other words, section 5 gives effect to section 33(2).
The administrator (to whom the request is made) is obliged to give that person adequate reasons in
writing within 90 days of receiving the request (s 5(2)). In other words, the administrator must provide
adequate reasons.
Cases in which the adequacy of reasons was at issue are inter alia: Nomala v Permanent Secretary,
Department of Welfare 2001 8 BCLR 844 (E) (ticking boxes on the “standard form reasons letter” do not
constitute reasons since they do not “educate be beneficiary concerned about what to address
specifically in an appeal or a new application. It does not instil confidence in the process, and certainly
fails to improve the rationality of the decisions arrived at”.)
In Minister of Environmental Affairs and Tourism v Phambili Fisheries (Pty) Ltd; Minister of
Environmental Affairs and Tourism v Bato Star Fishing (Pty) Ltd 2003 (6) SA 407 (SCA) Hoexter is
quoted who said “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”
(at par 40).
In Moletsane v The Premier of the Free State 1995 9 BCLR 1285 it was held that in terms of the interim
Constitution that administrative action be justifiable in relation to the reasons given for and that “the more
drastic the action taken, the more detailed the reasons which are advanced should be. The degree of
seriousness of the administrative act should therefore determine the particularity of the reasons
furnished” (at 1288).
Conclusion: There is no link between the application for the firearm licence and the reason given, since
the reason was not inter alia “properly informative”; therefore, it was not an adequate reason.
4.2 Explain briefly the distinction between “control” and “remedy” in administrative law. (5)
Simply put, to control administrative action is to ensure that administrative action is valid. A remedy on
the other hand is anything that serves to cure defects or improve conditions.
In essence, they are similar, but a distinction is nonetheless drawn when they are used in a legal
context. Baxter (1984:677) explains the difference between “control” and “remedy” as follows when the
supervisory functions of courts are at issue:
What is important, however, is that a clear distinction should be drawn between the two separate functions
which the court performs, namely, reviewing the legality of the action in question, and granting an
appropriate order if it finds the action to be unlawful.
De Ville (2005:297) explains the content of this distinction as follows:
A distinction has to be drawn between the review [read: “control”] of administrative action and the granting of
a remedy as a result of a finding that a ground of review is present. Whereas review entails an enquiry into
the legality of the administrative action (ie whether a ground of review is present), the specific remedy that is
granted usually follows after a finding of illegality and can take a variety of forms depending on the context.
Control, in turn, can take various forms.
8
ADL2601/201
(We find the following two broad categories in administrative law: Internal control (i.e., control within the
administration itself) and judicial control.)
4.3 List the three forms of internal control to be found in administrative law. (3)
The three forms of internal control are:
• Control by superior (senior) administrators or specially constituted bodies/institutions;

• Parliamentary control; and
• Control by public bodies and commissions, such as the Public Protector and the Auditor-general
4.4 What are the advantages of internal control? (5)
The advantages of or prerequisites for the requirement that internal remedies must be exhausted before
approaching a court of law have been justified as follows:
• It is unreasonable for a person to rush to court before his or her internal remedies have been
exhausted.
• The internal remedies are usually cheaper and more expedient/easier to use.
• It helps to prevent the courts being overloaded with cases that may be more efficiently dealt with by
the administration itself.
4.5 One of the preconditions set before an affected person may take administrative action on judicial
review is that he/she has to exhaust internal remedies as required by section 7(2)(a) of PAJA.
Write down five examples of when internal control would not be the proper remedy (in other
words, provide five exceptions to the general rule). (5)
The recognised exceptions have this in common: they are all examples of situations in which internal
control would not be the proper remedy, because:
• the case has already been prejudged by the administrator

• the decision has been made in bad faith (mala fide), fraudulently or illegally, or has in effect not
been made at all
• the aggrieved party has an option whether to use the extrajudicial remedy or to proceed directly
to judicial review (see Jockey Club of SA v Feldman 1942 AD 340)
• the administrative authority has come to an unacceptable decision as a result of an error of law
(e.g. when the administrator by reason of “mistake of law” presumes that he/ she has the
authority to take action)
• the administrative body concerned has agreed that judicial review proceedings may start
immediately
• the administrative body concerned has no authority to rectify the particular irregularity complained
of
• the internal remedy cannot provide the same protection as judicial review. (For example, in
Msomi v Abrahams 1981 2 SA 256 (N) this was held to be a strong indication that internal
remedies need not be exhausted.)
It is important to remember that these exceptions are nothing more than practical solutions to the
problems when internal control is not a proper remedy.
9
ADL2601/201
4.6 What form of judicial control would you suggest to Ms Coward? Provide a reason for your answer
and limit your answer to one form of judicial control. (2)
Ms Coward could apply for an interdict to stop the refusal until the matter has been reviewed. (The
explanation of the urgency of the matter; that she has a clear legal interest; that there is no other
satisfactory remedy; and that she will suffer irreparable prejudice if the interdict is not granted, falls
outside the scope of the answer.)
An appeal may only be lodged if the particular legislation provides for it.
The High Court has inherent review jurisdiction. In a review the court will consider the procedural
fairness of the withdrawal. (It will be permitted to go outside the record of the proceedings.)
Mandamus: To compel the administrator to provide reasons.

[25]
{100}









1 The October/November 2015 examination paper
Set of facts:
Mrs Mangu and Mr Hurter are neighbours. Mrs Mangu applied for the removal of a restrictive condition that
limits her right to build higher than one storey. Her application was summarily turned down by the
Department of Public Works and she was not given any reasons for this decision. It later appears that the
official who turned down the application was Mr Hurter. Mrs Mangu and Mr Hurter have a history of
neighbourly disputes concerning Mr Hurter’s encroaching wall and Mrs Mangu’s noisy Saturday evenings.
Answer the following questions with reference to the set of facts, where applicable, and substantiate your
answers.
Question 1
1.1 Briefly explain what an administrative-law relationship is. Do you think Mrs Mangu is a subject of an
administrative-law relationship? (6)

ADL2601/201
An administrative-law relationship exists between two parties in an unequal/vertical relationship. 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. The parties
involved are the Department of Public Works/Mr Hurter (organ of state) and Mrs Mangu (in a subordinate
position).
1.2 Is Mr Hurter an organ of state? Explain your answer with reference to the Constitution of the Republic
of South Africa, 1996. (7)
“Organ of state” is defined in section 239 of the Constitution and includes (a) any department of state or
administration in the national, provincial or local sphere of government; or any other functionary or
institution that (i) exercises a power or performs a function in terms of the Constitution or a provincial
constitution; or (ii) exercises a public power or performs a public function in terms of any legislation.
However, a court or a judicial officer is not included.
Yes, Mr Hurter is an organ of state – he is an administrator who acts on behalf of the Department.
1.3 Identify the administrative action in the set of facts. In your answer you should give a full definition of
the concept “administrative action” as provided in the Promotion of Administrative Justice Act (PAJA)
3 of 2000. (12)
S 1 of PAJA defines “administrative action” as any decision taken, or any failure to take a decision, by -
There are exceptions to the definition, for instance, judicial decisions.
The decision to turn down Mrs Mangu’s application amounts to administrative action because it complies
with the definition in that it involves a decision by an organ of state (the Department or Mr Hurter) which has
adversely affected the rights of a person (Mrs Mangu) and which appears to have had a direct external
legal effect.
[25]
Question 2
answers. Only one option or statement in respect of each question is correct. You must therefore
identify the correct option and write down the number of the option that you have identified next to the
question number.
2.1.1 Just administrative action is regulated in terms of...

(a) section 33 of the Constitution.
(b) section 195 of the Constitution.
(c) section 1 of PAJA.
(d) section 33 of PAJA.

ADL2601/201
2.1.2 The … is a binding source of administrative law.

(a) decision by the United States Supreme Court
(b) Green Paper on asylum seekers
(c) Constitution
(d) 2014 journal article by Prof C Hoexter
2.1.3 An administrative act will take effect …

(a) once the decision-maker has made a reasonable decision.
(b) as soon as the regulation has been promulgated.
(c) as soon as the judicial institution gives its ruling.
(d) upon the decision becoming known.
2.1.4 Public administration must be governed by the “democratic values and principles enshrined in the
Constitution”. Which one of the following is NOT included as one of these principles?
(a) The promotion and maintenance of a high standard of professional ethics.
(b) The promotion of efficient, economic and effective use of resources.
(c) A development-orientated public administration.
(d) The provision of services in a fair manner and according to municipal means.
2.1.5 … of administrative power is characterised by the senior functionary transferring certain powers and
activities to an independent organ or body “which carries out these powers and functions entirely in
its own name”.
(a) Deconstruction
(b) Decentralisation
(c) Deconcentration
(d) Mandate
(5)
2.2 Briefly explain the simplest form of delegation. (3)
The simplest form of delegation occurs in the form of a mandate that is an instruction or command. The
senior administrator makes a decision and then hands it over to another administrator to implement or
execute – strictly speaking, there is no proper delegation of power.
2.3 Explain the form of delegation also referred to as an “independent control relationship”. (7)
We speak here of an “independent control relationship” or decentralisation. When there is a

decentralisation of power, we find that the delegator transfers certain powers and activities to an
independent body. In essence, we find in this situation a complete delegation of power and the delegate
becomes fully responsible for the exercise of the power. An example of this type of delegation is that in
which a minister appoints a panel or board of experts to issue licences or concessions. The minister may
not personally perform the function which he or she has delegated. This does not mean that the minister
now has no power of control or supervision over the body. He or she exercises control
(1) by way of the appointment of the body’s members; and

(2) by way of appeal to or review by the minister of the decisions made.
2.4 There are three forms of abuse of power by an administrator. Explain when an administrator
exercises power in bad faith. You may give an example. (5)
- exercising power with an unauthorised or ulterior purpose (explanation: When the administrator uses
his or her power for a purpose other than that set out in the enabling statute, the action amounts to the
abuse of a power for an unauthorized purpose.)

ADL2601/201
- exercising power using an unauthorised procedure (explanation: We find that the administrator usually
uses an unauthorised procedure when the proper and correct procedure is more difficult, time-
consuming and cumbersome. The administrator then circumvents this correct, but difficult procedure by
using a short cut.)
- exercising power using ulterior motives to defeat the purpose of the law (explanation: When exercising
power in fraudem legis, the administrator deliberately and intentionally evades the provisions of the
empowering statute.)
[20]
Question 3
3.1 Briefly explain how PAJA gives effect to the right to reasonable administrative action. DO NOT
explain how PAJA gives effect to the right to written reasons. (5)
PAJA gives effect to the right to reasonable administrative action by giving an individual the capacity under
section 6(1) “to institute proceedings in a court or a tribunal for the judicial review of an administrative
action” on the ground that
the exercise of the power or the performance of the function authorised by the empowering provision, in pursuance of
which the administrative action was purportedly taken, is so unreasonable that no reasonable person could have so
exercised the power or performed the function (s 6(2)(h)).
In Bato Star, Justice O’Regan emphasised the importance of reading section 6(2)(h) of PAJA in line with
the wording of section 33(1) of the Constitution. She held that even if it may be thought that the language of
section 6(2)(h), if taken literally, might set a standard such that a decision would rarely if ever be found
unreasonable, that is not the proper constitutional meaning which should be attached to the subsection.
The subsection must be construed consistently with the Constitution and in particular section 33 which
requires a simple test, namely that an administrative decision will be reviewable if it is one that a
reasonable decision-maker could not reach. The simple test is therefore one that states that administrative
action will be reviewable, if it is one that a reasonable decision-maker could not reach.
3.2 In Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs 2004 4 SA 490 (CC), Justice
O’Regan listed factors that must be considered to determine whether a decision is reasonable. List
the factors. Do you think Mr Hurter’s decision was reasonable? (8)
No, no reasons were given for the decision. The identity of the decision-maker also indicates some form of
potential bias.
3.3 One of the rules of natural justice requires that the administrator must be impartial. Discuss the rule
against bias with reference to the above set of facts. (7)

ADL2601/201
Nemo iudex in sua causa is one of the rules of natural justice and it is the rule against bias or prejudice. It
means that no one can be the judge in their own cause. One cannot act if there is personal or financial
interest.
In Rose v Johannesburg Local Road Transportation Board 1947 4 SA 272 (W) the chairman of the board
dealing with transportation permits was a director of three taxi companies. His financial interest in these
clearly constituted bias in adjudicating on the permits.
In Liebenberg v Brakpan Liquor Licensing Board 1944 WLD 52 the mayor of the town insisted on being
present when the board was considering a liquor licence application of his brother. Although the board
insisted this did not influence the decision, the court held that the suspicion of bias was enough to set aside
the decision because of the mayor’s personal interest.
BTR Industries SA v Metal and Allied Workers Union 1992 3 SA 673 (A) also held that a reasonable
suspicion of bias satisfies the test. The Constitutional Court confirmed this test in the SACCAWU v Irvin &
Johnson case. The Constitutional Court preferred to use the phrase “a reasonable apprehension of bias”. In
other words, the affected person merely has to prove an appearance of bias rather than the existence of
actual bias.
There is potential bias (personal interest) in evidence in the set of facts since the decision by Mr Hurter
might have been influenced by his strained relations with Mrs Mangu, suggesting bias on the part of the
administrator.
3.4 Does the decision to reject the application by Mrs Mangu to remove the restrictive condition constitute
procedurally fair administrative action in terms of PAJA? Substantiate your answer with reference to
the relevant provisions in PAJA. (10)
person must be procedurally fair. (S 3(1) of PAJA). Briefly, legitimate expectation means that the rules of
natural justice 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).

ADL2601/201
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 need to promote efficient administration and good governance
The decision to reject Mrs Mangu’s application does not constitute procedurally fair administrative action in
terms of PAJA because, inter alia, Mrs Mangu was 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.
[30]
Question 4
4.1 Suppose Mrs Mangu approached the Department of Public Works and requested reasons for Mr
Hurter’s decision, would the Department be obliged to provide Mrs Mangu with reasons? Substantiate
your answer with reference to the relevant provisions in PAJA. (5)
Section 5 provides for the furnishing of reasons as required by section 33(2) of the Constitution. In other
words, section 5 gives effect to section 33(2).
Section 5(1) requires the provision of written reasons at the request of any person whose rights have been
materially and adversely affected by any administrative action and who has not been given reasons for the
action. Section 5(1) reads that any person whose rights have been materially and adversely affected by
administrative action and who has not been given reasons for the action may, within 90 days after the date
on which that person became aware of the action or might reasonably have been expected to have become
aware of the action, request that the administrator concerned furnish written reasons for the action.
The administrator (to whom the request is made) is obliged to give that person adequate reasons in writing
within 90 days of receiving the request (s 5(2)). In other words, the administrator must provide adequate
reasons.
The Department of Public Works is therefore obliged to give reasons for its decision in terms of PAJA.
4.2 Suppose the Department responded to Mrs Mangu’s request for reasons as follows: “No restrictive
conditions are removed at this point in time”. Do you think that this response provides an adequate
reason? Substantiate your answer with reference to case law. (7)
The standard of reasons for the decision is that of adequacy. What will constitute adequate reasons will
depend on the circumstances of each and every case, that is, the context within which the decision is
taken. In Nomala v Permanent Secretary, Department of Welfare 2001 8 8CLR 844 (E) the termination of a

ADL2601/201
disability grant was at issue. The applicant was informed that she had to re-apply for a disability grant. In a
“standard form reasons letter” she was informed that her re-application had been unsuccessful since she
was found to be “not disabled”. In an application for the review of the refusal of the grant the “sufficiency or
otherwise of the reasons contained in this letter” constituted the core of the application.
The court held that ticking boxes on the “standard form reasons letter” is inadequate since this ticking of
boxes “... disclose nothing of the reasoning process or the information upon which it is based”.
The reasons given did not provide sufficient information for any disappointed applicant to prepare an
appeal. Furthermore, the reasons do not educate the beneficiary concerned about what to address
specifically in an appeal or a new application. It does not instil confidence in the process, and certainly fails
to improve the rational quality of the decisions arrived at.
In Minister of Environmental Affairs and Tourism v Phambili Fisheries (Pty) Ltd; Minister of Environmental
Affairs and Tourism v Bato Star Fishing (Pty) Ltd [2003] 2 All SA 616 (SCA); 2003 6 SA 407 (SCA), quoting
Cora Hoexter (at para 40), the SCA held the following:
[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.
In the same paragraph the court also quoted with approval from the Australian decision Ansett Transport
Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500 at 507. The decision was to the effect that in
order to provide adequate reasons it is necessary for the decision-maker:
... [t]o explain this decision in a way which will enable a person aggrieved to say, in effect: “Even though I may not agree
with it, I now understand why the decision went against me. I am now in a position to decide whether that decision has
involved an unwarranted finding of fact, or an error of law, which is worth challenging.
This requires that the decision-maker should set out his understanding of the relevant law, any finding of
fact on which his conclusions depend (especially if those facts have been in dispute), and the reasoning
processes which led him to those conclusions. He should do so in clear and unambiguous language, not in
vague generalities or the formal language of legislation.
The response by the Department is not adequate reasons.
The senior functionary or institution has the power to reconsider or re-examine – to "review" – the decision
and then to confirm it, set it aside or vary the decision. When a decision is varied, the decision is
substituted by another.
The senior functionary or institution may consider the validity, desirability or efficacy of the administrative
action in question. The controlling body may also take policy into consideration.
Formal control is also exercised by examining the manner in which the decision was reached.
Internal control, in the form of an internal appeal, does not give rise to a final and binding decision. As a
result, the same matter may be raised again within the same departmental hierarchy.
Statutory appeal

ADL2601/201
- An appeal may be lodged against a final decision or final order, not against a provisional order.
Judicial review
- The courts have inherent review jurisdiction in terms of the common law.
- It entails reviewing the legality of a decision.
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).
Interdict
- If the applicant fears and can prove that an action or impending action by the administrator will
affect his rights, he may apply for an interdict restraining the administrator from carrying out its
action.
- Aimed at preventing unlawful administrative action.
Mandamus
- Compelling the administrator to perform some or other statutory duty.
- Mandamus cannot stipulate how the power should be exercised.
Declaratory order
- Used when there is a clear legal dispute or legal uncertainty regarding the validity of administrative
action.
- May also be used to determine whether actual or pending administrative action is lawful.

- Administrative action may be challenged by raising its invalidity as a defence in criminal law.
[25]
TOTAL: {100}





24
Oct/Nov 2014
Jetset Projects has lodged an application in terms of the Cape Land Use and Planning Ordinance 15 of
1985 for the rezoning of its property zoned for “residential purposes” to “business” to build a several
story high boutique hotel on the Atlantic seaboard of Cape Town. The relevant department of the City
of Cape Town considers the application and approves the application for rezoning. However, the local
ratepayer’s association is against the construction of the hotel since not only will the building of the
hotel take from them their beautiful sea-view and thus infringe their right to environment that is not
harmful to their well-being but will also lead to huge traffic congestion since the road along the sea
front and that the department did not provide any reasons for the decision.
Question 1
1.1 Briefly define “state authority” (4)

This is the public power exercised by an organ of state or natural or juristic person over another person
or body in a subordinate or subservient position. The exercise of such STATE authority could affect the
rights or interests of the last-mentioned.
1.2 Give an example of a general administrative-law relationship. (2)

The relationship between refugees generally and the Department of Home Affairs.
1.3 Define “organ of state” with reference to the Constitution. Is there an organ of state in the set of
facts? Give a reason for your answer. (7)
Organ of state is defined in section 239 of the Constitution and includes (a) any department of state or
Yes, the City of Cape Town is an organ of state exercising a public power in terms of legislation.
1.4 Identify the administrative action in the 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
by –
LUCIANO SCHOOL OF LAW & SOCIAL SCIENCES [LSLSS]

25
Question 2
2.1.1 D
2.1.2 A
2.1.3 B
2.1.4 C
2.1.5 D
Question 3
3.1 What are the rules that apply when delegation of powers is permitted? (4)
- If the administrator is authorised to perform a particular action and this entails the exercise of
discretion, the task concerned may not be delegated unless it is authorised by statute
- An administrator who exercises a discretionary power and makes a decision is not prevented from
instructing a subordinate administrator merely to implement the decision
- An administrator must apply his/her mind to the matter when exercising discretion
- An administrator may appoint a fact-finding committee to assist, provided the actual discretion is
ultimately exercised by the administrator
3.2 What are the forms of abuse of power by the administrator? (3)
- Unauthorised or ulterior purpose
- Exercising power using an unauthorised procedure
- Exercising power using ulterior motives (acting in fraudem legis)
3.3 Briefly explain how PAJA gives effect to the right to reasonable administrative action. (2)
PAJA gives effect to the right to reasonable administrative action by giving an individual the capacity
under section 6(1) “to institute proceedings in a court or a tribunal for the judicial review of an
administrative action” on the ground that:
• “the exercise of the power or the performance of the function authorised by the empowering
provision, in pursuance of which the administrative action was purportedly taken, is so unreasonable
that no reasonable person could have exercised the power or performed the function” (section 6(2)(h))
3.4 Briefly explain the application of the doctrine of legitimate expectation. (4)
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.
3.5 Does the department’s decision to grant the application for rezoning comply with the mandatory
requirements for procedural fairness? Explain your answer with reference to the relevant provision in
PAJA and the requirements listed there. (6)

26
When administrative action adversely affects people generally, impersonally and non-specifically then
one can safely assume that section 4 of PAJA will apply.
Mandatory requirements are as follows;
Section 4(2): The holding and procedure for a public enquiry
Section 4(3): A notice and comment procedure
Section 4(4): Allowing for a departure from the requirement of fair administrative procedure affecting
the general public where it is reasonable and justifiable to do so.
From the set of facts the department did not comply with any of the above mandatory requirements for
procedural fairness in terms of PAJA
3.6 Can the local ratepayer’s association request for reasons for the department’s decision to grant the
application for rezoning and, if so would the department be required to give reasons in terms of
PAJA? (6)
Section 5(1) of PAJA provides that;
Any person whose rights have been materially and adversely affected by administrative action and who
has not been given reasons for the action may, within 90 days after the date on which that person
became aware of the action or might reasonably have been expected to have become aware of the
action, request that the administrator concerned furnish written reasons for the action.
The ratepayer’s association met the requirements of section 5(1) since it is materially and adversely
affected by the department’s administrative action and therefore has the right to request for reasons.
The department must provide adequate reasons in terms of section 5(2) or limit the ratepayer’s right to
request for reasons. The department may refuse to furnish reasons if it is reasonable and justifiable in
terms of section 5(4).
3.7 What would the situation if the department fails to provide reasons? (4)
Failure to provide reasons leads to an adverse interference. Section 5(3) provides for a rebuttable
presumption that where no reasons are given the administrative action was taken without good reason.
The administrator will have the onus to prove that failure to provide reasons was in fact based on good
reason or it was reasonable and justifiable in the circumstances.
Question 4
4.1 What is the difference between control and remedy? (4)

Control is a method of limiting, supervising or regulating something. To control administrative action is
to ensure that it is valid. On the other hand a remedy is anything that serves to cure defects or improve
conditions.
The difference between control and remedy is that control entails an enquiry into the legality of the
administrative action and the specific remedy that is granted usually after a finding of illegality and can
take various forms depending on the context.

27
4.2 The general rule is that internal remedies must be exhausted first before an aggrieved party can
approach a court of law, but there are exceptions to this rule. When would internal control not be
proper remedy? List these exceptions. (7)
- The case has already been prejudged by the administrator
- The decision has been made in bad faith, fraudulently or illegally – or has not been made at all
- The aggrieved party has an option whether to use the extrajudicial remedy or to proceed directly to
judicial review
- The administrative authority has made an unacceptable decision as a result of an error of law
- The administrative body concerned has no authority to rectify the particular irregularity
- The internal remedy cannot provide the same protection as judicial review
4.3 List and briefly explain the forms of judicial control. (12)
Statutory appeal
None of the higher courts have inherent appeal jurisdiction - appeals are therefore only available when
the relevant legislation makes provision for it. Subordinate legislation may only make such provision if
authorised by the enabling legislation. Appeals lie only against final decisions. The court is restricted to
the record, but rehears the merits of the decision
Review
All higher courts have inherent review jurisdiction in terms of the common law. Ouster clauses are no
longer constitutional in terms of s34 of the Constitution. Review may take place in terms of the
Constitution, PAJA, specific statutes, Supreme Court Act (if review of lower courts’ decisions).
The grounds of review must be stated and broadly rests on an infringement of a fundamental right or
challenges the validity of administrative action. It only decides on the validity of the decision, but may go
beyond the record
Interdict
An interdict is aimed at preventing unlawful administrative action which will prejudice the rights of the
affected party. There must be a clear legal interest which is being threatened; No alternative satisfactory
remedy available; The party will suffer irreparable damage or prejudice if the interdict is not granted.
Mandamus
This remedy is used to compel an administrator to perform a statutory duty. It cannot however stipulate
how the power should be exercised. PAJA eg provides that ‘failure to make a decision’ is a ground for
review. The court can, however be approached to grant a mandamus in the event of a long delay to
make a decision. It is the flip side of an interdict - unauthorised action is prevented by means of an
interdict and compliance with a statutory duty is enforced by way of mandamus.
Declaratory order
This remedy is applied for where there is a clear dispute or uncertainty about the validity or effect of
administrative action, even where other remedies may also be relied on. The court will give a definitive

28
answer to the question of what the legal position is regarding any particular person or a given state of
affairs. It clarifies the ‘status’ of a matter.

If a person is charged with a criminal offence created by legislation (failing to comply with empowering
legislation) the charge may be defended by challenging the validity of the administrative decision that is
the subject of the dispute.
4.4 What is the purpose of section 8(1)(b) of PAJA? (2)

Is to give power to the court may make an order prohibiting the administrator from acting in a particular
manner.




18
May/June 2014
Due to serious water shortages experienced during the past five years a local company in Sedgefield
decides to build a factory for desalination of seawater. Erecting a desalination plant requires an
environmental authorization by the Western Cape Department of Environmental Affairs and
Development Planning in terms of the National Environmental Management Act (NEMA) 107 OF 1998
and an environmental impact assessment (EIA) in terms of the Environmental Impact Assessment
Regulations of 2010 which, amongst others, provide for public participation (the giving of input and
objections) by interested and affected parties. The relevant Department considers the EIA carried out
and grants the authorization to build the facility for desalination of seawater. However, the local
ratepayer’s association is against the construction of the desalination plant because of the expensive
infrastructure required and the negative impact on environment. The association alleges further that
it was not asked for any input in the matter and the Department did not provide any reasons for their
decision.
Question 1
1.1 Briefly explain what an administrative-law relationship is with reference to the given facts. (7)
An administrative-law relationship is a relationship between two or more legal subjects in which one is a
person or body who is clothed with state authority and is able to exercise the authority over the other.
The exercise of power may affect the rights and/or interests of the person(s) in a subordinate position. It
is therefore an unequal relationship. In a general administrative-law relationship the legal rules
governing the relationship between the parties apply to all the subjects in a particular group. It is
created by, changed and terminated by legislation.
The general administrative-law relationship applies to the set of facts because the decision of the
Western Cape Department of Environmental Affairs and Development Planning to authorize to build a
factory of desalination of seawater in terms of NEMA affects the general public in Sedgefield
1.2 Identify the administrative action in the in the set of facts? In your answer, you should give a full
by –

19
There are exceptions to the definition. These exceptions are, however, not applicable to the given set of
facts. The authorization by the Western Cape Department of Environmental Affairs and Development
Planning amounts to an administrative action.
The Western Cape Department of Environmental Affairs and Development Planning is a state organ
clothed with state authority and its decision in terms of legislation, materially and adversely affect the
rights of the public and has a direct, external effect.
1.3 Identify the organs of state in the given set of facts and substantiate your answer with reference to
the definition of “organ of state” as provided in section 239 of the Constitution (2)
Section 239 of the Constitution states:
“organ of state” means
a) any department of state or administration in the national, provincial or local sphere of government;
or
b) any other functionary or institution
I. exercising a power or performing a function 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, but does not
include a court or a judicial officer.
In the given facts, The Western Cape Department of Environmental Affairs and Development Planning is
an organ of state in terms of section 239(a) (any department of state or administration in the national,
provincial or local sphere of government)
1.4 List the important statutory source of administrative law and explain why this is so. (3)
Legislation
It is the primary source of administrative power as it adds flesh to the bones of principles, norms and
values - expressed in the Constitution.
Question 2
2.1.1 D
2.1.2 B
2.1.3 C
2.1.4 B
2.1.5 C
2.2 Explain what a legislative act is and indicate when such an action takes effect or becomes operative.
(7)
Legislative acts involve the making and issuing of delegated legislation when authorized by enabling
legislation. e.g. Regulations (subordinate legislation) in terms of empowering / original legislation. They
have the following characteristics:
- Have a specific form and is published in the Government Gazette (e.g. the Refugees Act)
- General relations are created, varied and/or ended by admin legislative acts

20
- Specific rules apply to the adoption, repeal or amendment of all legislative admin acts
- The power to delegate a legislative power exists only when there is express statutory authority
- The regulations may not be in conflict with any statute or restrict the provisions of a statute and they
may not be vague or unclear
Legislative admin acts takes effect an individual as soon as the regulation or proclamation has been
promulgated and/or the stated date of commencement arrives
2.3 List and describe the different forms of delegation. (8)
Mandate
- Is an instruction or command to execute a decision. The senior administrator makes a decision and then
hands it over to another administrator to implement or execute. There is no proper delegation of
power.
Deconcentration
- is a division of labour and a quick and more efficient execution of a government function. The following
rules apply;
1. The head of the administrative hierarchy may withdraw the power at any time
2. The delegate acts in the place of the delegator and the function is regarded as performed by the
delegator.
3. The delegator still exercise control over the delegate and may intervene. The delegator is not functio
officio until the conclusion of the matter
4. Authoritative functionaries within the same hierarchy cannot get involved in legal disputes with one
another
Decentralisaton
- Here the delegator transfers certain powers and functions to an independent body. There is a complete
delegation of power and the delegate becomes fully responsible for the exercise of the power. The
delegator controls and supervises the delegate by way of;
- the appointment of the body’s members; and
- appeal to or review by the delegator of the decisions made.
Question 3
3.1 Discuss the Constitutional Court’s interpretation of the right to reasonable administrative action
as set out in Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs 2004 4 SA 490. (10)
• According to O’Regan J, the subsection must be construed consistently with the Constitution and
in particular with section 33 which requires a simple test, namely that an administrative decision will
be reviewable if it is one that a reasonable decision-maker could not reach. (also referred to as the
“simple” test)

21
• What constitutes a reasonable decision will depend on the circumstances of each case as it is
context-based.
• O’Regan J proceeded to enumerate the following factors relevant to determining whether a
decision is reasonable:
• the nature of the decision
• the identity and expertise of the decision-maker
• the range of factors relevant to the decision
• the reasons given for the decision
• the nature of the competing interests involved
• the impact of the decision on the lives and well-being of those affected
3.2 Does the decision to grant the environmental authorization constitute procedurally fair
administrative action in terms of PAJA? (15)
When administrative action adversely affects people generally, impersonally and non-specifically
then one can safely assume that section 4 of PAJA will apply.
Mandatory requirements are as follows;
Section 4(2): The holding and procedure for a public enquiry
The administrator must conduct the public enquiry himself or appoint a suitably qualified person, or
a panel of persons to do so. The administrator must set procedure in which the public enquiry must
be conducted in accordance. A notice containing a brief summary of the report of the enquiry must
be published in English and one other official language in the Gazette or relevant provincial Gazette.
Section 4(3): A notice and comment procedure
The administrator must;
(1) take appropriate steps to communicate the administrative action to those likely to be materially
and adversely affected by it and call for comments from them;
(2) consider any comments received;
(3) decide whether or not to take the administrative action, with or without changes; and
(4) comply with the prescribed procedures relating to notice and comment procedures.
Section 4(4): Allowing for a departure from the requirement of fair administrative procedure
affecting the general public where it is reasonable and justifiable to do so.
From the set of facts the department did not comply with any of the above mandatory requirements
for procedural fairness in terms of PAJA and therefore the decision does not constitute procedurally
fair administrative action.
3.3 Was the Western Cape Department of Environmental Affairs and Development Planning obliged
to give reasons for its decision in terms of PAJA? (5)
YES
PAJA on written reasons

22
- Section 5(1): requires the provision of written reasons at the request of any person whose rights
have been materially and adversely affected by any admin action & who has not been given
reasons
- Section 5(2): The administrator to whom the request is made must provide the person with
adequate reasons in writing within 90 days of receiving the request
- Section 5(3): failure to provide adequate reasons in writing leads to adverse inference (action
without good reason)
- Section 5(4): a refusal to furnish reasons must be reasonable and justifiable
- Section 5(5): provides for a procedure which is fair but different to that od subsection (2)
- Section 5(6): promoting efficient administration, the minister may at the request of the
administrator, by notice in the Gazette, publish a list specifying any admin action, or a
group/class of admin actions, in respect of which the administrator will automatically furnish
reasons
Question 4
4.1 The Public Protector plays an important role in the control of administrative action. What are the
powers of the Public Protector? (5)
The South African Public Protector has the following powers (s 182(1)):
- Investigate any conduct in state affairs, or in the public administration in any sphere of
government that is alleged or suspected to be improper or to result in any impropriety or
prejudice;
- To report on that conduct;
- To take appropriate remedial action
- Has additional powers and functions prescribed by national legislation.
4.2 List and discuss the prerequisites/preconditions set above an affected person may take
administrative action on judicial review. (12)
The affected person must have locus standi (legal standing)
The capacity of a person to bring a matter to court.
The Constitution lists the persons who may approach the court:
(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/class of persons
(d) Anyone acting in the public interest
(e) An association acting in the interest of its members.
All internal remedies must first be exhausted.

Section 7(2) of PAJA

23
4.3 Name and discuss which form(s) of judicial control you would advise the local ratepayer’s
association to pursue in order to challenge the administrative action. (8)
Review
All higher courts have inherent review jurisdiction in terms of the common law. Ouster clauses are
no longer constitutional in terms of s34 of the Constitution. Review may take place in terms of the
Constitution, PAJA, specific statutes, Supreme Court Act (if review of lower courts’ decisions).
The grounds of review must be stated and broadly rests on an infringement of a fundamental right
or challenges the validity of administrative action. It only decides on the validity of the decision, but
may go beyond the record
Interdict
An interdict is aimed at preventing unlawful administrative action which will prejudice the rights of
the affected party. There must be a clear legal interest which is being threatened; No alternative
satisfactory remedy available; The party will suffer irreparable damage or prejudice if the interdict is
not granted.
Declaratory order
This remedy is applied for where there is a clear dispute or uncertainty about the validity or effect of
administrative action, even where other remedies may also be relied on. The court will give a
definitive answer to the question of what the legal position is regarding any particular person or a
given state of affairs. It clarifies the ‘status’ of a matter

Oct/ Nov 2013
Mr Nkosi is the proud owner of a wine farm (commonly known as Blue Hills), which is situated in
Constantia. On 1 October 2013 Mr Nkosi received a notice of expropriation in terms of section 7 of the
Expropriation Act 63 of 1975 from the Minister of Public Works stating the following:
- The whole of erven 711 (commonly referred to as Blue Hills) will be expropriated
- The proposed date of expropriation is 1 December 2013
- The offered amount of compensation is R500 000
Mr Nkosi is aware of the fact that the Minister of Public Works does have the power to expropriate
his property – this is clear in terms of section 2 of the Expropriation of 63 of 1975 – which states that
the Minister may expropriate property for public purposes. However, Mr Nkosi is unaware of the
reasons for the proposed expropriation. He was also not informed why the whole of his property
should be expropriated. In addition, the market value of Blue Hills was estimated in October 2013 to
be R20 million.
QUESTION 1
1.1 Define “organ of state” with reference to the Constitution. Is there an organ of state in the set of
facts? Give a reason for your answer. (8)
Organ of state is defined in section 239 of the Constitution and includes (a) any department of state or
Yes, the Minister is an organ of state, since he is an official acting on behalf of the Department of Public
Works. He is exercising a public power in terms of legislation.
1.2 Is there a general administrative-law relationship present in the set of facts? Give a brief reason
for your answer. (3)
No, there is an individual administrative-law relationship, because the Minister’s decision only applies to
Mr Nkosi and the relationship was created by an individual administrative decision. 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. Individual relationships are created by individual administrative
decisions. Furthermore, individual relationships are not affected by new general legislative provisions,
unless the amending Act specifically states that it affects the relationship.

10
1.3 List two binding sources of administrative law. (2)
Any two of the following:
- The Constitution
- Legislation (PAJA)
- Case law
- Common law
- Administrative practice/custom or usage
by -
facts. The decision to expropriate Mr Nkosi’s property amounts to administrative action because it
complies with the definition in that it involves a decision by an organ of state (the Minister, the
appointed person in the Department of Public Works) exercising a public power or performing a public
function in terms of any legislation which has adversely affected the rights of a person (Mr Nkosi) and
which appears to have had a direct external legal effect.
QUESTION 2
answers. Only one option/statement in each question is correct. You must, therefore, identify the
correct option and write down the number of the option that you have identified next to the question
number.

11
(The correct answers are marked in bold.)
2.1.1 The Minister’s decision in the set of facts is an example of a…
2.1.2 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.
2.1.3 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?
(b) Reasonableness
(c) Lawfulness
(d) Impartiality
2.1.4 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.”
(b) SA Freight Consolidators (Pty) Ltd v Chairman, National Transport Commission 1987 4 SA 155 (W)

12
2.1.5 Which of the following is NOT a form of abuse of power by an administrator?
2.2 Suppose the Minister’s reason for the expropriation was that the Department of Public Works
required Mr Nkosi’s property in order to build a new house for the newly elected President of South
Africa. Mention the three elements of “proportionality” and explain whether the Minister’s decision
to expropriate Mr Nkosi’s property is reasonable (or not) with reference to these elements. (8)
The three elements are: suitability, necessity and weighing up advantages and disadvantages.
In accordance with the requirement of suitability, when exercising his or her powers, the administrator
must choose only those means (from the variety of means available) that are most appropriate for
achieving the desired end. In other words, there must be a rational connection between the end and the
means. In the set of facts it is not clear whether the state really needs Mr Nkosi’s property in order to
build a new house for the President.
Necessity means that the administrator must take only such steps as are necessary if any prejudice to an
individual is involved. In other words, the administrator must choose the action that causes least harm
to those who will be affected by the measure. Mr Nkosi will lose his whole farm, it is not clear whether it
is really necessary for the state to take his whole farm in order to build a house for the president.
Finally, weighing up the advantages and disadvantages is a very important requirement in that it
requires weighing up the advantages and disadvantages, and considering the injury to the general public
or the individual. The method or means must not be out of proportion to the advantages – the ends to
the community. The disadvantage to Mr Nkosi is severe, he will lose his entire farm, while the state can
build the house elsewhere.
given content to the relevant provision in PAJA that deals with reasonableness. Do you think Mr
Nkosi’s right to reasonable administrative action was infringed? Substantiate your answer with
reference to PAJA and case law. (12)
PAJA gives effect to the right to reasonable administrative action by giving an individual the capacity
under section 6(1) “to institute proceedings in a court or a tribunal for the judicial review of an
administrative action” on the ground that:

13
• “the exercise of the power or the performance of the function authorised by the empowering
provision, in pursuance of which the administrative action was purportedly taken, is so unreasonable
that no reasonable person could have exercised the power or performed the function” (section 6(2)(h))
The CC gave meaning to the content of sec 6(2)(h) in the case of Bato Star Fishing (Pty) Ltd v Minister of
Environment Affairs 2004 4 SA 490. O’Regan J emphasised the importance of reading section 6(2)(h) in
line with the wording of section 33(1) of the Constitution. According to O’Regan J, the subsection must
be construed consistently with the Constitution and in particular section 33 which requires a simple test,
namely that an administrative decision will be reviewable if it is one that a reasonable decision-maker
could not reach. (also referred to in the study guide as the “simple” test)
What will constitute a reasonable decision will depend on the circumstances of each case as it is
context-based.
O’Regan J proceeded to enumerate the factors relevant to determining whether a decision is

reasonable. They include:
In this scenario one could argue that the Minister’s decision was not reasonable, since no reasons for
the decision were given. The impact of decision also has a devastating effect on Mr Nkosi. The nature of
the interests involved: Mr Nkosi’s house (personal property and livelihood), the building of a house for
the President (no reason why it should be there). The impact: Mr Nkosi will lose his entire business.
QUESTION 3
3.1 Did the Minister comply with the mandatory requirements for procedural fairness? Explain the
relevant provision in PAJA to substantiate your answer. (8)
Section 3(2)(b) of PAJA lists the mandatory requirements:
In order to give effect to the right to procedurally fair administrative action, an administrator, subject to
subsection (4), must give a person referred to in subsection (1)
(i) adequate notice of the nature and purpose of the proposed administrative action;

14
(ii) a reasonable opportunity to make representations;
(iii) a clear statement of the administrative action;
(iv) adequate notice of any right of review or internal appeal, where applicable; and
(v) adequate notice of the right to request reasons in terms of section 5
The Minister in the given set of facts only informed Mr Nkosi of the administrative action, ie that there
will be an expropriation. The Minister did not comply with any of the other requirements.
3.2 If the Minister decides to depart from the requirements of fair procedure, as required by PAJA,
section 3(4)(b) of PAJA lists certain factors to be considered to determine whether this decision to
depart is reasonable and justifiable. List the factors as prescribed by section 3(4)(b). (5)
- the objects of the empowering provision
- the nature and purpose of and the need to take administrative action
- the likely effect of the administrative action
- the urgency of taking the administrative action or the urgency of the matter
- the need to promote an efficient administration and good governance
3.3 Suppose Mr Nkosi approached the Department of Public works and requested reasons for the
Minister’s decision. Would the Minister be obliged to provide Mr Nkosi with reasons? Substantiate
your answer with reference to the relevant provisions in PAJA. (5)
Yes. Section 5(1) requires the provision of written reasons at the request of any person whose rights
have been materially and adversely affected by any administrative action and who has not been given
reasons for the action.
Section 5(1): Any person whose rights have been materially and adversely affected by administrative
action and who has not been given reasons for the action may, within 90 days after the date on which
that person became aware of the action or might reasonably have been expected to have become
aware of the action, request that the administrator concerned furnish written reasons for the action.
The administrator (to whom the request is made) is obliged to give that person adequate reasons in
writing within 90 days of receiving the request (s 5(2)). In other words, the administrator must provide
adequate reasons.
3.4 Suppose the Minister responded to Mr Nkosi’s request for reasons as follows: “The Department of
Public Works requires the mentioned property in order to build a house.” Do you think that this
response provides an adequate reason? Substantiate your answer with reference to case law. (7)
• There must be a link between the administrative action and the reasons given.

15
• The reasons must “suit” the administrative action.
• What will constitute adequate reasons will depend on the circumstances of each and every case, that
is, the context within which the decision is taken.
• In Nomala v Permanent Secretary, Department of Welfare 2001 8 BCLR 844 (E) the court found that
the reasons given must be sufficient information for any disappointed applicant to prepare an appeal
(the ticking of boxes in this instance disclose nothing of the reasoning process)
• In Minister of Environmental Affairs and Tourism v Phambili Fisheries (Pty) Ltd; Minister of
Environmental Affairs and Tourism v Bato Star Fishing (Pty) Ltd [2003] 2 All Sa 616 (SCA) the court held
that it 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.
• In this scenario one could argue that the reason given by the Minister was vague and inappropriate,
because it was insufficient. The reasons did also not suit the administrative decision.
QUESTION 4
4.1 Briefly explain the three forms of internal control. (6)
• control by superior/senior administrators or specially constituted bodies/institutions (a higher

body/more senior person in the same department/office)
• parliamentary control (general administrative policy and matters of public concern may be questioned
in Parliament)
• control by public bodies and commissions, such as the public protector and the auditor-general
(Constitution has created a number of extrajudicial bodies/institutions that can assist in the creation of
such awareness and knowledge and, therefore, in controlling state authority as well)
(1) The senior functionary or institution has the power to reconsider or re-examine – to “review” the
decision and then to confirm it, set it aside or vary the decision. When a decision is varied the decision is
(2) The senior functionary or institution may consider the validity, desirability or efficacy of the
administrative action in question. The controlling body may also take policy into consideration.

16
(4) Internal control, in the form of an internal appeal, does not give rise to a final and binding decision.
As a result, the same matter may be raised again within the same departmental hierarchy.
4.3 Why should internal remedies first be exhausted before approaching a court of law? (2)
- It is unreasonable for a person to rush to court before his or her internal remedies have been
exhausted.
- The internal remedies are usually cheaper and more expedient/easier to use.
- It helps to prevent the courts being overloaded with cases that may be more efficiently dealt with by
the administration itself.
4.4 When would internal control not be the proper remedy? (7)
made at all
(3) the aggrieved party has an option whether to use the extrajudicial remedy or to proceed direct to
judicial review (Jockey Club of SA v Feldman 1942 AD 340)
(4) the administrative authority has come to an unacceptable decision as a result of an error of law (eg
when the administrator by reason of “mistake of law” presumes that he or she has the authority to take
action)
(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 (For example, in Msomi v
Abrahams 1981 (2) SA 256 (N) this was held to be a strong indication that internal remedies need not be
exhausted.)
4.5 Would the judicial remedy of mandamus assist Mr Nkosi in this matter? Give reasons for your
answer. (2)
No, an interdict would be better suited to stop the Minister from expropriating the land.
OR
Yes, to provide reasons.

17
4.6 List the orders that the court would be able to make in proceedings for judicial review with
reference to PAJA. (4)
In terms of section 8(1)(a) the court may direct the administrator
- to give reasons, or
- to act in a required manner (mandamus )
In terms of section 8(1)( b) the court may make an order prohibiting the administrator from acting in a
particular manner.
In terms of paragraph (c) the court may grant orders setting aside decisions of the administrator.
In terms of section 8(1)(d) the court can declare the rights of the parties involved.
The court can grant a temporary interdict (temporary relief): section 8(1)(e).
The court can make an order as to costs (section 8(1)(f)).





May/June 2013
Ms REF Ugee is a citizen of a war-ravaged country in West Africa. She fled her country of birth, moving
gradually southwards and entered South Africa after a long journey. Ms REF Ugee applies for asylum
at the Department of Home Affairs in terms of section 21(1) of the Refugees Act 130 of 1998. Pending
the outcome her application for asylum, she was granted an asylum seeker permit in terms of the Act,
which allows her to stay temporarily in South Africa. Later, however, her application for asylum is
rejected by the authorized refugee status determination officer without any input by Ms REF Ugee. No
reasons were given, but it later transpired that the rejection was based on the informal notes of the
refugee reception officer working in the refugee reception officer responsible for issuing her with the
asylum seeker permit. From these notes the impression might be granted that the decision had been
influenced by certain irrelevant factors suggesting bias on the part of the administrator. The Refugees
Act makes provision for review by the Standing Committee and an appeal to the Appeal Board of a
decision by a refugee status determination officer.
You are a legal advisor working at a non-governmental organization (NGO) called Consortium for
Refugees and Migrants in South Africa (CRMSA). Ms Ugee approaches you for assistance on ways and
means on how the NGO might be able to come to her assistance.
Question 1
1.1 Briefly explain what an administrative-law relationship is. Do you think Ms REF Ugee is a subject of an
administrative-law relationship? (6)
An administrative-law relationship is a relationship between two or more legal subjects in which one is a
person or body who is clothed with state authority and is able to exercise the authority over the other.
The exercise of power may affect the rights and/or interests of the person(s) in a subordinate position. It
is therefore an unequal relationship. In a general administrative-law relationship the legal rules
governing the relationship between the parties apply to all the subjects in a particular group. It is
created by, changed and terminated by legislation. In an individual administrative-law relationship the
rules apply personally and specifically between the parties. The relationship is created by individual
administrative decisions.
In the set of facts, the individual administrative-law relationship is applicable since an individual
relationship exists between Ms Ugee and the Department of Home Affairs.
1.2 Identify the administrative action in the in the set of facts. In your answer, you should give a full
by –


facts. The decision to reject Ms REF Ugee’s application for asylum amounts to administrative action
because it complies with the definition in that it involves a decision by an organ of state (the
Department of Home Affairs, authorized refugee status determination officer in the Department of
Home Affairs) exercising a public power or performing a public function in terms of any legislation which
has adversely affected the rights of a person (Ms REF Ugee’s) and which appears to have had a direct
external legal effect.
1.3 Identify the organs of state in the given set of facts. Explain your answers with reference to the
constitutional definition of organ of state. (6)
In terms of section 239 of the Constitution, the following are organs of state:
The Department of Home Affairs (any department of state or administration in the national, provincial
or local sphere of government)
The authorized refugee status determination official who made the decision, the refugee reception
officer, the Standing Committee and the Appeal Board in the Department of Home Affairs (any other
functionary or institution (ii) exercising a public power or performing a public function in terms of any
legislation)
Question 2
2.1.1 D
2.1.2 B
2.1.3 C
2.1.4 B
2.1.5 C
2.2 The set of rules clearly states that Ms Ugee’s application for asylum was rejected by an authorized
refugee status determination officer. Discuss the rules that apply when delegation of powers is
permitted (in other words a particular task is performed by a duly authorized administrator).
(5)
To “delegate” means to entrust a task, responsibility or power to somebody else – that is, to an agent of
the original holder of the power. The purpose behind the delegation of powers is to facilitate the quick
and efficient division of labour within the administration, since administrators and administrative bodies
very often cannot cope with the exercise of all their administrative functions.

The following rules apply when delegation of powers is permitted:
- If the administrator is authorised to perform a particular action and this entails the exercise of
discretion, the task concerned may not be delegated unless it is authorised by statute
- An administrator who exercises a discretionary power and makes a decision is not prevented from
instructing a subordinate administrator merely to implement the decision
- An administrator must apply his/her mind to the matter when exercising discretion
- An administrator may appoint a fact-finding committee to assist, provided the actual discretion is
ultimately exercised by the administrator
2.3 One of the rules of natural justice requires that the administrator should be impartial. Discuss the rule
against bias with reference to the above set of facts. (7)
• Common-law rules of natural justice:
Audi alteram partem (to hear the other side before a decision is taken)
Nemo iudex in sua causa rule (no one should be judge in his own case – rule against bias/prejudice)
• The last rule is important in this context. In terms of this rule, the decision-maker must be, and must
reasonably be perceived to be, impartial or unbiased. Rule against bias.
• The most common examples of bias are:
the presence of pecuniary/financial interest
the presence of personal interest – more evident in this set of facts
• In Rose v Johannesburg Local Road Transportation Board 1947 4 SA 272 (W), the chairman of the
board responsible for the granting or refusal of transport licences was at the same time director of the
three large taxi companies, and therefore biased. The court found that the reasonable person would
realise that the chairman was indeed biased because of his financial interest in the taxi company.
• The test to determine bias was formulated by the Appellate Division in BTR Industries SA v Metal and
Allied Workers Union 1992 3 SA 673 (A) as “the existence of a reasonable suspicion of bias satisfies the
test and that an apprehension of the real likelihood that the decision maker will be biased is not a
prerequisite for disqualifying bias".
• In SACCAWU v Irvin & Johnson 1999 7 BCLR 725 (CC) the CC confirmed the correctness of the test in
the BTR case. However, the CC decided to use the phrase “a reasonable apprehension of bias” rather
than “a reasonable suspicion of bias”.
• The affected individual merely has to prove an appearance of bias rather than the existence of actual
bias.
• In the given set of facts, one could argue that there was undoubtedly a reasonable apprehension of
bias since the decision by the authorized refugee status determination officer was based on informal
notes submitted by the refugee reception officer of the Department of Home Affairs.
2.4 PAJA gives effect to the right to reasonable administrative action by providing an individual the
capacity under section 6(1) to institute judicial review proceedings on the ground that

The exercise of the power or performance of the function authorised by the empowering provision in
pursuance of which the administrative action was purportedly taken, is so unreasonable that no
reasonable person could have so exercised the power or performed the function (s 6(2)(h))
Discuss this ground of review. (8)
The Constitutional Court gave meaning to the content of sec 6(2)(h) in the case of Bato Star Fishing (Pty)
Ltd v Minister of Environment Affairs 2004 4 SA 490.
• O’Regan J emphasised the importance of reading section 6(2)(h) in line with the wording of section
33(1) of the Constitution.
• According to O’Regan J, the subsection must be construed consistently with the Constitution and in
particular with section 33 which requires a simple test, namely that an administrative decision will be
reviewable if it is one that a reasonable decision-maker could not reach. (also referred to in the study
guide as the “simple” test)
• What constitutes a reasonable decision will depend on the circumstances of each case as it is context-
based.
• O’Regan J proceeded to enumerate the following factors relevant to determining whether a decision is
reasonable:
Question 3
3.1 Does the decision to reject the application by Ms Ugee for asylum constitute procedurally fair
administrative action in terms of PAJA? (15)
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):


Discretionary requirements (s 3(3) of PAJA):

Section 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 the 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))
empowering provision authorises it.
Ms Ugee did not receive procedurally fair treatment in terms of PAJA because, inter alia, it was not given
an opportunity to make representations, and was not given reasons for the administrative action.
Sections 3(4) and 3(5) of PAJA do not seem to be relevant for present purposes.
3.2 Was Ms Ugee entitled to reasons for the decision to reject her application for asylum? Discuss
fully with reference to PAJA. (10)
Yes PAJA provides the following on written reasons

- Section 5(1): requires the provision of written reasons at the request of any person whose rights have
been materially and adversely affected by any admin action & who has not been given reasons
- Section 5(2): The administrator to whom the request is made must provide the person with adequate
reasons in writing within 90 days of receiving the request
- Section 5(3): failure to provide adequate reasons in writing leads to adverse inference (action without
good reason)
- Section 5(4): a refusal to furnish reasons must be reasonable and justifiable
- Section 5(5): provides for a procedure which is fair but different to that od subsection (2)
- Section 5(6): promoting efficient administration, the minister may at the request of the administrator,
by notice in the Gazette, publish a list specifying any admin action, or a group/class of admin actions, in
respect of which the administrator will automatically furnish reasons

Question 4
4.1 Discuss the powers of superior/senior administrators when exercising internal control. (5)
(1) The senior functionary or institution has the power to reconsider or re-examine – to “review” the
decision and then to confirm it, set it aside or vary the decision. When a decision is varied the decision is
(2) The senior functionary or institution may consider the validity, desirability or efficacy of the
administrative action in question. The controlling body may also take policy into consideration.
(4) Internal control, in the form of an internal appeal, does not give rise to a final and binding decision.
As a result, the same matter may be raised again within the same departmental hierarchy.
4.2 List the grounds of review relating to the decision-maker (administrator) (s 6(2)(a)(i)-(iii) of PAJA).
(4)
- Action known as ultra vires action – when the administrator was not authorised to take the action
- The administrator lacked specified qualifications
- The administrator exceeded the geographical limits of the powers conferred
- The administrator did not act in accordance with provisions relating to time
- Administrative actions exceed the objectives / purpose of the empowering provisions
- Unauthorised delegation of power
- Nemo iudex in sua causa (the rule against bias) – when an administrator was bias
4.3 List and explain various forms of judicial control. (10)
Statutory appeal
• The courts may hear appeals only where this is provided for by statute.
• An appeal may be lodged against a final decision or final order only, and not against a provisional
order.
• Details regarding the appeal will appear in the relevant statute.
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
• Grounds of review: infringement of a fundamental right or failure to comply with section 6 of PAJA
Interdict

• If the applicant fears and can prove that an action or impending action by the administrator will affect
his rights, he may apply for an interdict restraining the administrator from carrying out its action.
• It is aimed at preventing unlawful administrative action.
Mandamus
• compels the administrator to perform some or other statutory duty.
• Mandamus cannot stipulate how power should be exercised.
Declaratory order
• used when there is a clear legal dispute or legal uncertainty regarding the validity of administrative
action.
• also used to determine whether actual or pending administrative action is lawful.

• Administrative action may be challenged by raising its invalidity as a defence in criminal law.
4.4 Can Ms Ugee apply for judicial control? (6)

No. Because there some preconditions that have to be met before one can turn to judicial control which
are;
1. The affected person must have locus standi (legal standing)
It is the capacity of a person to bring a matter to court.
The Constitution lists the persons who may approach the court:
(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/class of persons
(d) Anyone acting in the public interest
(e) An association acting in the interest of its members.
2. All internal remedies must first be exhausted.

Section 7(2) of PAJA
Mrs Ugee has the locus stand but must first exhaust all the internal remedies before turning to a court
of law for an appropriate remedy. The forms of internal control are
- 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

THE OCTOBER/NOVEMBER 2012 EXAMINATION PAPER
African Silver (Pty) Ltd is an established mining company that has successfully
operated its business in the South African mining industry over the last five decades
under the previous mining regime. South Africa is the world’s biggest producer of
platinum and African Silver (Pty) Ltd was the leading company extracting platinum in
the Bushveld complex, the main platinum producing area in South Africa. African Silver
(Pty) Ltd, as the leading company specializing in extracting and refining this metal, has
spent years and millions of rands in order to improve its mining operations, specifically
with relation to the extraction and refinement of platinum.
In October 2002, the Minerals and Petroleum Resources Development Act 28 of 2002
(MPRDA) came into operation, which makes provision for equitable access to and
sustainable development of the nation’s mineral and petroleum resources. In terms of
the MPRDA, African Silver (Pty) Ltd’s limited real right to mine automatically ceased to
exist on the date the Act came into operation. In consequence, African Silver (Pty) Ltd
had to apply for “new order” mining rights to carry on with its business. On 16 January
2003, African Silver (Pty) Ltd applied for mining rights in the Bushveld complex. The
application was summarily turned down by the Department of Minerals and Energy
without giving any reasons to African Silver (Pty) Ltd. In the interim, mining rights
pertaining to the Bushveld complex were granted to African Golden (Pty) Ltd. The
official who turned down African Silver (Pty) Ltd’s application is a shareholder in African
Golden (Pty) Ltd.
QUESTION 1
1.1 Identify the organs of state in the given set of facts. Explain your answers
with reference to the constitutional definition of organ of state. (6)
In terms of section 239 of the Constitution, the following are organs of state:
The Department of Minerals and Energy (any department of state or administration in
the national, provincial or local sphere of government)
The official who made the decision in the Department of Minerals and Energy (any
other functionary or institution (ii) exercising a public power or performing a public
function in terms of any legislation)
1.2 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
pg. 17
to the provisions of the Promotion of Administrative Justice Act (PAJA) 3 of

2000. (13)
Section 1 of PAJA defines "administrative action” as any decision taken, or any failure
to take a decision, by -
(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. These exceptions are, however, not applicable
to the given set of facts.
The decision to turn down African Silver (Pty) Ltd amounts to administrative action
because it complies with the definition in that it involves a decision by an organ of state
(the official, the appointed person in the Department of Minerals and Energy)
exercising a public power or performing a public function in terms of any legislation
which has adversely affected the rights of a person (African Silver (Pty) Ltd)) and which
appears to have had a direct external legal effect.
1.3 Do the following actions constitute administrative action? Explain your answers.
(i) The enactment of the MPRDA (2)
No, it is excluded by section 1(b)(dd) of PAJA.
(ii) The decision of the Department of Minerals and Energy to grant African Golden
(Pty)
Ltd the mineral rights. (2)
Yes, it has a direct negative external legal effect (on African Silver) and it was made by
an organ of state.
(iii) The request for reasons by African Silver (Pty) Ltd (2)
No, the request for reasons is not a decision made by an organ of state.
[25]
QUESTION 2
2.1 What is the basis of administrative legality? (3)
r administrative action was not
authorised by law only but also performed in accordance with the prescripts laid down
by the law. The public administration must serve and promote the public interest,
protect and respect fundamental/human rights.
pg. 18
2.2 Explain the principle of legality in the constitutional framework. (3)
legislation. Section 2 of the Constitution provides that any law or conduct that is not in
line with the Constitution may be declared invalid by the court.
Fedsure Life Assurance LTD v Greater Johannesburg 1999 (1) SA 374 (CC): the
executive “may exercise no power and perform no function beyond that conferred upon
them by law.”
Section 8 of the Constitution provides that the Bill of Rights binds the executive
authority – state administration in all spheres of government – and all organs of state.
This means that organs of state and individuals exercising public power are bound by
the law and not elevated above it.
2.3 In order to determine whether African Silver (Pty) Ltd’s right to reasonable
administrative action was infringed, explain the Constitutional Court’s
interpretation of the right to reasonable administrative action. In your answer,
you should apply the Court’s interpretation to the given set of facts and refer to
the relevant case law and provisions in PAJA. (14)
PAJA gives effect to the right to reasonable administrative action by giving an

individual the capacity under section 6(1) “to institute proceedings in a court or a
tribunal for the judicial review of an administrative action” on the ground that:
exercise of the power or the performance of the function authorised by the empowering
provision, in pursuance of which the administrative action was purportedly taken, is so
unreasonable that no reasonable person could have exercised the power or performed
the function” (section 6(2)(h))
of sec 6(2)(h) in the case of
Bato Star Fishing (Pty) Ltd v Minister of Environment Affairs 2004 4 SA 490.
J emphasised the importance of reading section 6(2)(h) in line with the wording of
section 33(1) of the Constitution. J, the subsection must be
construed consistently with the Constitution and in particular with section 33 which
requires a simple test, namely that an administrative decision will be reviewable if it is
one that a reasonable decision-maker could not reach. (also referred to in the study
guide as the “simple” test)
nd on the circumstances of each
case as it is context-based.
factors relevant to determining
whether a decision is reasonable:
-maker
pg. 19
pact of the decision on the lives and well-being of those affected
QUESTION 3
3.1 Discuss whether bias is in evidence in the set of facts. (10)

-law rules of natural justice:
Audi alteram partem (to hear the other side before a decision is taken)
Nemo iudex in sua causa rule (no one should be judge in his own case – rule against
bias/prejudice)
-The last rule is important in this context. In terms of this rule, the decision-maker
must be, and must reasonably be perceived to be, impartial or unbiased. Rule against
bias.
- st common examples of bias are: the presence of pecuniary/financial interest
– more evident in this set of facts the presence of personal interest
Rose v Johannesburg Local Road Transportation Board 1947 4 SA 272 (W), the
chairman of the board responsible for the granting or refusal of transport licences was
at the same time director of the three large taxi companies, and therefore biased. The
court found that the reasonable person would realise that the chairman was indeed
biased because of his financial interest in the taxi company.
BTR
Industries SA v Metal and Allied Workers Union 1992 3 SA 673 (A) as “the existence of
a reasonable suspicion of bias satisfies the test and that an apprehension of the real
likelihood that the decision maker will be biased is not a prerequisite for disqualifying
bias".
SACCAWU v Irvin & Johnson 1999 7 BCLR 725 (CC) the CC confirmed the
correctness of the test in the BTR case. However, the CC decided to use the phrase “a
reasonable apprehension of bias” rather than “a reasonable suspicion of bias”.
appearance of bias rather than the
existence of actual bias.
re was undoubtedly a reasonable
apprehension of bias since the officer of the Department of Minerals and Energy is a
shareholder in African Golden.
3.2 Discuss fully whether African Silver (Pty) Ltd received a procedurally fair
treatment in terms of PAJA. (10)
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.
pg. 20
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):
action
Discretionary requirements (s 3(3) of PAJA):

o obtain assistance, even legal assistance in complex cases
Section 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 the relevant
factors into account, which include:
ct of the administrative action

urgency of the matter
b))
Section 3(5) of PAJA states that the administrator may also follow a different but fair
procedure if the empowering provision authorises it.
African Silver (Pty) Ltd did not receive procedurally fair treatment in terms of PAJA
because, inter alia, it was not given an opportunity to make representations, and was
not given reasons for the administrative action. Sections 3(4) and 3(5) of PAJA do not
seem to be relevant for present purposes.
3.3 Suppose the reasons given for the refusal of African Silver (Pty) Ltd’s
application are that it is not a BEE compliant company. Discuss whether this
may be considered “adequate” reasons. (5)
between the administrative action and the reasons given.
Nomala v Permanent Secretary, Department of Welfare 2001 8 BCLR 844 (E), the
court found that the reasons given must be sufficient information for any disappointed
applicant to prepare an appeal (the ticking of boxes in this instance disclose nothing of
the reasoning process).
Minister of Environmental Affairs and Tourism v Phambili Fisheries (Pty) Ltd;
Minister of Environmental Affairs and Tourism v Bato Star Fishing (Pty) Ltd [2003] 2 All
pg. 21
Sa 616 (SCA) the court held that “it 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.
Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500 where the
court found that the applicant must understand the reasons given.
3.4 Explain in what circumstances a departure from the requirement to furnish

written reasons might have been applicable. In your answer, you should refer to
the relevant provisions in PAJA. (5)
asonable and justifiable

in the circumstances.
ritten reasons. This limitation

must therefore be in accordance with section 36 of the Constitution.
justifiable, the administrator
must take the following factors (as set out in s 5(4)(b)) into account: The objects of the
empowering provision
The nature, purpose and likely effect of the administrative action concerned
The nature and extent of the departure
The relation between the departure and the purpose
Importance of the purpose of the departure
The need to improve an efficient administration and good governance [30]
QUESTION 4
4.1 List the forms of internal control. (3)
as the public protector and the

auditor-general
4.2 Mention the advantages of internal control. (5)

revaluated through internal control.
internal control, such administrators can be reprimanded or required to give

reasons for their decisions.
-consuming
than judicial control.
4.3 List the exceptions to the general rule that internal remedies must be
exhausted first.(7)
pg. 22
mala fide), fraudulently or illegally, or has in

effect not been made at all.
n option whether to use the extrajudicial remedy or to
proceed direct to judicial review (Jockey Club case).
able decision as a result of an
error of law.
judicial review proceedings may
start immediately.
ority to rectify the particular
irregularity complained of.
tection as judicial review.
4.4 Explain the various forms of judicial control. (10)

Statutory appeal
nal order only, and not against

a provisional order.
Judicial review
the Constitution, section 6 of PAJA, the Supreme Court Act or in

terms of the relevant legislation
right or failure to comply with
section 6 of PAJA (the requirements of valid administrative action) Interdict
tion or impending action by the
administrator will affect his rights, he may apply for an interdict restraining the
administrator from carrying out its action.
ative action.
Mandamus
Mandamus cannot stipulate how power should be exercised.

Declaratory order
ainty regarding the validity of
administrative action.

its invalidity as a defence in
criminal law.
pg. 23
QUESTION
You have applied for a passport and are informed by the official working for the
Department of Home Affairs that your application was turned down.
(a) Does the turning down of your application constitute administrative action?
In your answer, you should fully discuss the concept “administrative action”
with reference to the provisions of the Promotion of Administrative Justice Act 3
of 2000 (PAJA). (16)
SUGGESTED ANSWER
(a) Section 1 of PAJA defines administrative action as any decision taken or 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 of 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 this definition listed in section 1 of PAJA, for instance, the
legislative functions of Parliament are excluded (s 1(b)(dd)).
The decision to turn down the application constitutes an administrative action, because
the official working at the Department of Home Affairs is an organ of state (both the
official and the Department are organs of state – as defined in section 239 of the
Constitution) and the decision to turn down the application was made in terms of
legislation. The decision adversely affected your rights and it had a direct, external
legal effect.
(b) Explain why it is important to establish whether administrative action is

involved. (2)
The main reason is that the application of the right to just administrative action (s 33 of
the Constitution) depends on whether administrative action has been performed by
either an organ of state or any other or any person exercising public power/performing
a public function in terms of legislation. Stated differently, the existence of
administrative action is the threshold requirement for the application of the right to just
administrative action. One should also note that there is a list of exclusions to what
constitutes administrative action.
pg. 24
(c) When will the decision by the relevant official of the Department take effect?
(2)
Section 1 of PAJA defines a decision as “any decision of an administrative nature
made, proposed to be made, or required to be made under an empowering provision".
The Act also lists a number of examples that fall under the definition of a decision.
Administrative acts take effect upon the decision becoming known, either by
publication or announcement such as the Government Gazette or by individual
notification (letter, etc). Once you are notified, the decision will take effect.
Question 1
(a) Lawfulness is the only requirement for just administrative action.
(b) For administrative action to be “just” it need only be reasonable.
(c) Procedural fairness is the only requirement for just administrative action.
(d) Lawfulness, reasonableness and procedural fairness are requirements for just
1. Only statement (a) is correct.
2. All the statements are incorrect.
3. Only statements (b) and (c) are correct.
4. Only statement (d) is correct.
Question 2
Section 195(1) of the Constitution, 1996
(a) is found in Chapter 10 of the Constitution.
(b) requires the promotion of professional ethics in public administration.
(c) requires services to be provided impartially, fairly, equitably and without bias.
(d) requires public administration to be accountable.
2. Only statements (a) and (b) are correct.
3. All the statements are correct.
4. Statement (d) is incorrect.
Question 3
(a) Delegation means entrusting a task or duty to someone else.
(b) It is a basic rule of administrative law that delegation is unlawful.
(c) There are no exceptions to the above rule.
(d) The rule rests on the principle that administrators have special qualifications,
knowledge or expertise.
1. Statements (a), (b) and (c) are correct.
2. Statements (b), (c) and (d) are correct.
3. Statements (a), (c) and (d) are correct.
4. Statements (a), (b) and (d) are correct.
Question 4
pg. 25
(a) The principle of proportionality consists of three elements.

(b) The principle of proportionality is considered in deciding the reasonableness of
(c) The elements of the principle of proportionality are suitability, necessity and
weighing up the advantages and disadvantages.
(d) The Constitution prescribes reasonableness as a requirement for a valid
4. Statements (b) and (c) are incorrect.
Question 5
(a) The audi alteram partem rule is one of the rules of natural justice.
(b) The rules of natural justice are aimed at the reasonableness of administrative
action.
(c) The nemo iudex in sua propria causa rule is a rule of natural justice.
(d) The rules of natural justice regulate procedural fairness in the common law.
1. Statements (b) and (d) are correct.
2. Statements (a) and (c) are incorrect.
Question 6
For administrative actions to be procedurally fair
(a) a reasonable opportunity to make representations is a mandatory requirement of
PAJA.
(b) PAJA requires no notice of the right to request reasons.
(c) legal representation is a mandatory requirement of PAJA in all cases.
(d) appearance in person at hearings is in the discretion of the administrator.
1. Statements (a) and (d) are correct.
4. Only statements ((b) and (c) are correct.
Question 7
(a) Section 3 of PAJA deals with procedural fairness to the individual.
(b) Section 4 of PAJA deals with procedural fairness to the individual.
(c) Section 3 of PAJA deals with procedural fairness to the public.
(d) Section 4 of PAJA deals with procedural fairness to the public.
3. Statements (b) and (c) are correct.
pg. 26
Question 8
(a) Failure to provide reasons in terms of section 5 of PAJA has no consequences.
(b) The administrator has 120 days after a request within which to provide reasons.
(c) The reasons must be adequate.
(d) All the provisions of section 5 of PAJA may be ignored at will.
2. Statement (c) is correct.
4. Statement (b) is correct.
Question 9
(a) Internal remedies must be exhausted before approaching a court.
(b) There are no exceptions to this rule.
(c) Internal remedies are usually cheaper to use.
(d) Internal remedies are usually easier to use.
4. Statement (b) is correct.
Question 10
(a) There is no difference between appeal and review.
(b) All High Courts have inherent powers of appeal.
(c) All High Courts have inherent powers of review.
(d) Both appeal and review may examine the merits of the decision.
2. Only statement (c) is correct.
QUESTION
Mr J Warden is an employee of the Department of Correctional Services. He has
applied for promotion in the department and meets all the minimum requirements. The
relevant legislation prescribes that appointments and promotions in the department are
made after applicants have attended a selection committee meeting. The selection
committee should consist of the
Commissioner of Correctional Services, the Head of the Human Resources division,
and the Head of the division where the appointment/promotion is to be made. Mr
Warden is notified to attend the meeting the day before it is to take place. He is
interviewed by The Commissioner, a clerk in the
pg. 27
Human Resources Division, and the senior administration clerk in the local prison. Two
weeks later he is informed that he has not been successful. The Commissioner’s
nephew (far less qualified) has been appointed to the post. He requests reasons for the
decision, and is informed that his lack of success is regretted, but nothing more.
Answer the following questions. Give reasons for all your answers - a bare “yes”
or “no” or reference to a case or provision is NOT enough.
QUESTION 1
(a) Define administrative action. Does the decision not to promote Mr Warden
amount to administrative action? Substantiate your answer. (10)
In terms of section 1 of PAJA – administrative action means a decision taken or
failure to take a decision by
(a) an organ of state in exercising a power in terms of the Constitution or a
provincial constitution, or in exercising a public power or performing a public
function in terms of any legislation; or
(b) a natural or juristic person which is not 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.
The decision not to promote Mr Warden is administrative action because it complies
with all the elements of the definition.
(There is a decision taken by and organ of state – the selection committee – exercising
their power in terms of legislation which adversely affects the rights of Mr Warden and
has direct external legal effect. The fact that the decision is invalid for various reasons
is not relevant in deciding whether there is an administrative action or not.)
(b) What is an organ of state in terms of the Constitution of 1996? Name the
organs of state in the set of facts. (10)
In terms of s 239 of the Constitution an organ of state includes:

(a) any department of state or administration in the national, provincial or local
sphere of government; or
(b) any other functionary or institution that (i) exercises a power or performs
a function in terms of the Constitution or a provincial constitution; or (ii)
exercises a public power or performs a public function in terms of any
legislation. A court or a judicial officer is excluded.
The department of Correctional Services, the Commissioner of Correctional Services,
The
Head of Human Resources, the Head of the Division where the appointment is to be
made, the clerk in the HR Division, the senior administration clerk in the local prison
are all organs of state in the set of facts (½ mark each).
pg. 28
(c) Name five (5) legally binding sources of administrative law. (5)
The Constitution
Legislation
Case law
Common law
Administrative practice
International Law
QUESTION 2
(a) Do the following actions constitute administrative action? Explain your
answers.
(i) The power of the President to appoint a commission of enquiry. (2)

No. It is expressly excluded by the definition as presidential executive functions.
(ii) A request by Mr Warden for reasons for his failure. (2)

No. The subordinate person's decisions can never be administrative action.
(iii) Parliament’s new Correctional Services legislation. (2)

No. It is expressly excluded in the definition as parliamentary legislative functions.
(iv) Mr Warden’s decision to take the matter on review in the High Court. (2)
No. The subordinate person's decisions cannot be administrative action.
(v) The decision of the local municipality to increase rates. (2)

No, it is a legislative function of the municipal council which is expressly excluded.
(b) Would the selection committee be able to change its decision? Discuss with
regard to the rules of the principle of functus officio (the task having been
completed) (10)
This is a pure administrative action. Invalid administrative action may be
altered/rectified by the administrator at any time unless it has been challenged before a
court or higher tribunal, or if the affected individual has acquired rights or privileges as
a result of the action.
Valid onerous administrative action may be altered at any stage. Own mistakes may be
corrected. Valid beneficial administrative actions may only be altered where the
authority has been given the power expressly or by necessary implication.
pg. 29
Administrative action affecting the status of a person may not be changed unless
authorised expressly or by necessary implication.
In this case the action is invalid since the committee is invalid and the committee would
be able to change its decision. If the correct committee had made the same decision, it
would be an onerous action and the committee would also be able to change its
decision.
(a) Explain whether the selection process of Mr J Warden was procedurally fair
in terms of section 3 of PAJA? Include all aspects. (15)
Section 3 of PAJA applies to the individual administrative-law relationship.
expectations of any person must be procedurally fair. The protection is extended
beyond s 33 to include legitimate expectations. Briefly, legitimate expectation means
that the rules of fair procedure are extended to those cases where there 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. The
Jenkins case states that the doctrine has become part of our common law.
Section 3(2)(a) provides that fair administrative practice depends on the circumstances
of each case.
Obligatory requirements: (seems like codification of rules of natural justice) (s
3(2)(b))
• Adequate notice of nature and purpose of propose action
Discretionary requirements:
Section 3(4)(a) provides that the requirements in S3(2) may be departed from only if
reasonable and justifiable. Section 3(4)(b) provides that this is determined by taking
all relevant factors into account:
• The need to promote efficient administration and good governance.
Limitation must also comply with s 36 of the Constitution.
The administrator may also follow a different but fair procedure if empowering provision
pg. 30
authorises this. (s 3(5)).

Mr Warden was not given adequate notice of the action. There is no indication that he
was given notice of his right to review or the right to reasons. There seems to be no
reason that it could be reasonable and justifiable to depart from these requirements. As
a further reason, the wrong people conducted the interview (no proper delegation).
Therefore several requirements for a procedurally fair action were infringed.
(b) Was the reason given to Mr Warden “adequate”? (5)

In terms of Moletsane v The Premier of the Free State 1995 9 BCLR 1285 (O); 1996 2
SA 95 (O), adequate reasons mean that the administrative action must be justifiable in
relation to the reasons given for it. “The more drastic the action taken, the more
detailed the reasons which are advanced should be.” Adequate reasons mean that
they should “fit” the action. The reasons (or lack thereof) given to Mr Warden do not
satisfy any of these requirements.
(c) Briefly discuss the common law principle which is infringed by the
appointment of the Commissioner’s nephew. (5)
The principle infringed is the rule of natural justice nemo iudex in sua propria causa
(no-one may be a judge in his own cause). This is the rule against bias. Clearly in the
set of facts the Commissioner had a personal interest in his nephew being promoted.
In the Liebenberg case the mayor sat in on a liquor licencing meeting where his brother
had applied for a licence. This was held to be bias.
QUESTION 4
(a) (i) Does Mr Warden have locus standi to take the matter to court? (2)
Yes, in terms of s 38(a) of the Constitution anyone who acts in his own interest.
(ii) Does Mr Warden’s wife have locus standi to take the matter to court? (2)
No, unless he cannot act on his own behalf (s 38(b)).
(iii) Would the Correctional Services Union have locus standi to act on behalf of
Mr Warden? (2)
Yes, it is an association acting on behalf of its members (S 38(e).
(b) What are the exceptions to the general rule that internal remedies should first
be exhausted? (7)
1. The case has been pre-judged by the administrator. (This does not mean that the
administrator has heard the matter already, but that he/she has a preconceived notion
of the outcome.)
2. The decision was made in bad faith, fraudulently or illegally, or not made at all.
3. The aggrieved party has an option.
4. There has been an error of law.
pg. 31
5. There has been agreement between the parties.

6. The administrative body has no authority to rectify the problem.
7. The internal remedy does not provide the same protection as judicial review.
(c) Name the judicial remedies which are available to an aggrieved person and
explain which remedy(ies) you would advise Mr Warden to pursue. (12)
Statutory appeal
Judicial review
Interdict
Mandamus
Declaratory order
Mr Warden should apply for an interdict to stop the appointment of the
Commissioner's nephew until the matter has been reviewed, since the matter is
urgent, he has a clear legal interest, there is no other satisfactory remedy and he
will suffer irreparable prejudice if the interdict is not granted. An appeal may only
be lodged if the particular legislation provides for it. The High Court has inherent review
jurisdiction. In a review the court will consider the procedural fairness of the
appointment. It will be permitted to go outside the record of the proceedings and will
usually refer the matter back to the administrator to rectify the procedure
Question 1
(a) The administrative law relationship can be a general relationship.
(b) The administrative law relationship can be an individual relationship.
(c) The general administrative law relationship is regulated by legislation.
(d) The individual administrative law relationship is created by a decision.
1. Only statements (a) and (c) are correct.
2. Only statements (b) and (d) are correct.
Question 2
(a) There are six binding sources of administrative law.
(b) All the sources of administrative law are persuasive.
(c) Case law plays no role as a source of administrative law.
(d) Green and White Papers are the most important sources of administrative law.
3. Only statements (c) and (d) are correct.
pg. 32
Question 3
(a) A state department is an organ of state.
(b) The Chief Justice is an organ of state.
(c) The roads department of the Johannesburg City Council is an organ of state.
(d) The official issuing car licences is an organ of state.
4. Only statements (a), (c) and (d) are correct.
Question 4
(a) The University of South Africa is an organ of state.
(b) The South African Football Association is an organ of state.
(c) The Post Office is an organ of state.
(d) The Department of Foreign Affairs is not an organ of state.
2. Statements (a), (b) and (d) are incorrect.
3. Statements (a) and (c) are correct.
Question 5
(a) Section 32 of the Constitution, 1996 defines “just administrative action”.
(b) Section 33 of the Constitution, 1996 defines “just administrative action”.
(c) Section 34 of the Constitution, 1996 defines “just administrative action”.
1. Statements (a) and (c) are correct.
4. Only statement (b) is correct.
Question 6
(a) An administrative action is a decision.
(b) An administrative action is a failure to take a decision.
(c) An administrative action is an organ of state.
(d) An administrative action is a refusal to take a decision.
Question 7
(a) The decision can be taken by an organ of state.
(b) The decision can be taken by a natural person.
(c) The decision can be taken by a juristic person.
pg. 33
(d) The decision must be taken in terms of legislation.

3. Only statements (a), (b) and (c) are correct.
4. Only statements (a), (b) and (d) are correct.
Question 8
(a) A decision to have a notice and comment procedure in terms of section 4(1) of
PAJA (The
Promotion of Administrative Justice Act 3 of 2000) is “administrative action.
(b) A decision by the Judicial Service Commission not to make any judicial
appointments is “administrative action”.
(c) The decision to stop the prosecution of a person charged with drunken driving is
“administrative action”.
2. Only statements (a) and (c) are correct.
3. Only statement (b) is correct.
Question 9
(a) No police action can be unlawful.
(b) Legislative administrative action is terminated by repeal.
(c) Judicial administrative action takes effect when the tribunal convenes.
(d) Individual administrative action will take effect by individual notification.
2. Only statement (c) is correct.
Question 10
(a) A valid beneficial administrative action may never be altered.
(b) A valid beneficial administrative action may be altered if such power is expressly
conferred.
(c) A valid onerous administrative action may be changed at any stage.
(d) An invalid administrative action may not be altered.
pg. 34

3. Statements (b) and (c) are correct.
4. Statement (a) and (c) are incorrect.
pg. 35
CLS cc
Administrative Law Notes
1
ADMINISTRATIVE LAW:
CHAPTER 1:
The sources of administrative law
Binding sources:
1. The constitution:
this is the supreme law of the land and no other law or conduct can
be inconsistent with the constitution – S172.
The constitution NB for admin:
a) It sets standards for admin conduct
b) Guarantees justice for individual by adding requirements
to admin action: lawful, reasonable and procedurally fair
– S33
2. Legislation:
Legislation is the primary source of law because most of our law is
drafted in the form of legislation – all legislation must comply with the
constitution.
Original legislation: is passed by parliament in the national sphere of

government (e.g. Promotion of Access to Information Act)
The following passes original legislation:
• National Assembly and NCOP.
• The nine provincial legislatures in the provincial sphere of
government (Gauteng Schools Education Act)
• By elected local governments – they have the power to enact by-
laws which don’t conflict with the constitution or parliamentary
statute
Subordinate legislation:
Is passed in terms of original (enabling) legislation – the subordinate
legislation mustn’t conflict with the original act.
In the national sphere, subordinate legislation is passed by

functionaries who are given the power to make these rules:
- Proclamations by the president = date of commencement of law
- Regulations made by ministers
It can also be found in provincial government:

- Regulations in terms of the Schools Education Act – by the
provinces MEC for education
3. Case law:
courts must interpret legal rules – determine their meaning and then
apply the laws to concrete situations.
Because past judgments are binding on other courts in later cases –
judicial precedent (stare decises) = case law is an NB source of admin
law
Critical Law Studies CC ©

CLS cc
2
4. Common law
Is the unwritten law of SA in the sense that it isn’t contained in
legislation.
Examples of common law:
- Ultra vires = the author of admin action cant act beyond the
scope of his authority
- Natural justice:
a) Hear the other side
b) No one can be the judge in his own case
5. Custom:
Is a rule of practice which a community has carried down from
generation to generation and which they regard as binding.
Requirements for a custom to be recognized:
1. It must be reasonable
2. It must have existed over a long time
3. It must be generally recognized
4. Must be certain and clear
6. International law:
in terms of S39 of the constitution when a court interprets legislation
it must consider international law
7. Ubuntu
Persuasive sources:
1. Writings
2. Policy documents – green papers = people are invited to
comment on matters to be regulated by the government, white
paper = final document in the process, shows the government
action to be taken
3. Reports by state institutions
4. Foreign law – in terms of S39, when a court interprets
legislation it may consider foreign law

CLS cc
3
CHAPTER 2
The administrative law relationship
Admin law – Is an unequal relationship where someone with a public

power (state authority) exercises authority over another who is in a
subordinate position. It forms part of public law
Such a relationship can exist between:

• Administrator and a private individual in a subordinate position
• Administrator and a lower ranking official in the same
department
Admin law = PUBLIC LAW: there is an unequal relationship where
power is exercised by someone with authority, which affects the
rights of another
Characteristics of the admin law relationship:

1. One of the subjects must be a person who exercises power
2. The position of power must be held by someone clothed with
government authority and who is able to exercise that authority
over someone in the subordinate position
2 Types of admin law relationships:
The general relationship:
• The legal rules governing the relationship between the parties

apply to all subjects within a particular group
• The rules apply generally and impersonally and not to one
specific person.
• The general law relationship is created, changed or amended by
legislation.
Individual relationship:
• Legal rules apply personally and specifically between parties

• Apply to identified legal subjects
• The content of the relationship changes from case to case.
• These relationships are created by individual administrative
decisions. They aren’t affected by new general legislative
provisions.

CLS cc
4
CHAPTER 3
The legal subjects to an administrative relationship
PUBLIC LAW: is unequal, a vertical relationship between the state and

the individual
PRIVATE LAW: is an equal relationship between individuals, it

amounts to a horizontal relationship
The dividing line between public and private law has become blurred:
1. The state has become involved in private relationships –

employer and employee, landlord and tenant and husband and
wife.
2. The constitution states that private relationships are often
unequal – bill of rights apply to private relationships
3. Public functions have become increasingly privatized – Telkom
and Transnet
FFFFNB!!!!!! S239 of the Constitution defines: organ of state:
a. Any department of state or administration in the national,

provincial and local sphere of government
This includes:
• National sphere of government: President and his
ministers
• Provincial sphere: Premiers and MEC
• Local sphere: municipalities
Or
b. Any other functionary or institution:
i. Exercising a power in terms of the constitution
ii. Exercising a public power or performing a public
function in terms of legislation
Excludes a court or a judicial officer
Organ of state also includes someone exercising a power in terms of

the constitution and a public power in terms of legislation
Role of private organizations:

Voluntary associations are non-statutory bodies (not created or
maintained by legislation)
They still have an unequal relationship.
Although some of them have professional status (Kaiser Chiefs) they
aren’t organs of state.
Common laws still apply to them as management is in a position of

authority over the member.

CLS cc
5
BUT based on matters such as admission, suspension and other
disciplinary actions, these are governed by their own constitutions =
it’s based on the agreement between the members and the association
as contained in their constitutions.
Mahlangu: disciplinary decisions taken against jockeys – the jockeys

had contractually bound themselves to the club, to act in a certain way =
based on agreement
The persons whose rights and interests are affected by the

exercise of the authority:
Most NB characteristic of an admin law relationship is that it’s based
on authority; one party is forced to act in a certain way.
The person in the subordinate position isn’t always outside the public
sphere, but may be a lower ranking official
Person in the subordinate position isn’t helpless: the authority isn’t

allowed to misuse his powers – they are obliged to act in accordance
with the law and promote public interest.
The person in the subordinate position is protected by the law in
general and the constitution – S33
The reason for the admin law relationship:

Object is the subject matter.

CLS cc
6
CHAPTER 4
ADMINISTRATIVE ACTION
Administrative action: any decision of an organ of state (S239) of an

administrative nature made in terms of the prescriptions of laws
Any decision of a private person when they exercise a public power in
terms of law.
Grey’s Marine Hout Bay: this is conduct, in fulfilling the states

functions which involve policy, don’t in terms of the law, which affects
a group of people or an individual
S33 of the Constitution:

S33
1. everyone has the right to administrative action that is lawful,
reasonable and procedurally fair
2. everyone whose rights have been adversely affected by
administrative action has the right to be given written reasons
3. national legislation must be made to give effect to these rights
and must:
a) provide for review of admin action by the court
b) impose a duty on the state to comply
c) promote efficient admin action
Before the enactment of PAJA:

• Its was held that legislative action wasn’t administrative action
(Pharmaceutical case)
• Acts of the head of state weren’t admin action (SARFU)
Promotion of Administrative Justice Act – PAJA:

Administrative action means 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
ii. exercising a public power or performing a public
function in terms of legislation OR
b) By a natural or juristic person other than an organ of state
when exercising a public power or performing a public function
in terms of legislation
EXCLUDES:
1. the executive powers of the national executive:
a) Appoint a commission of enquiry (SARFU)
b) Receiving foreign diplomats
c) conferring honors
d) Pardon prisoners (HUGO)

CLS cc
7
e) Pharmaceutical case: the president decision
to being an Act of Parliament into force by
signing it isn’t admin action
2. the executive functions of the provincial executive:

a) Assenting to Bills
3. Executive powers of the municipal council
4. The legislative functions of parliament, provincial

legislature and municipal council
5. Judicial functions of a judicial officer
6. Decision to institute or continue prosecution
7. Decision regarding the appointment of a judicial

officer by the judicial service commission
8. Decisions under the Promotion of Access to

Information Act
Difference between admin law and constitutional law
Constitutional law: regulates the interaction between organs of state

at the highest level and the judiciary. It’s concerned with the structure
of the organs of state
Admin law: is concerned with one branch of government – executive –

it’s concerned with the day to day business of implementing and
applying policy
Separation of powers: state authority is divided into:

- legislative authority – creates, amend or repeal legal rules
- executive authority – formulate policy and give effect to this policy
through the execution of admin laws
- Judicial authority – power to control both the legislature and the
executive through interpreting and applying legal rules and
applying them to concrete situations.

CLS cc
8
3 TYPES OF ADMINISTRATIVE ACTION:
LEGILATIVE ADMIN ACTION:

a) It’s the making and issuing of delegated legislation
b) they are easy to recognize, they have a specific form and
are published in the Gazette
c) general admin law relationships are created, varied and
ended by admin legislative action
d) specific rules apply to the adoption, repeal and
amendment of all admin legislative action
e) the power to delegate is only allowed where there is
express statutory authority for this
f) Must be within the framework of the authority given by
the enabling legislation
WHEN IT COMES INTO EFFECT:

• When the regulation of promulgation is made
• The date stated for commencement arrives
WHEN IT TERMINATES:
• Legislative administrative acts MAY be:
o Repealed
o Amended
At any time and it doesn’t have retrospective effect
JUDICIAL ADMIN ACTION:

judicial admin action is action of an organ of state that’s almost like
the judicial authority (court) – in those legal rules are interpreted and
applied to concrete situations. Board/Administrative Tribunals e.g.
The Films and Publications Appeal Board.
Formal and material tests are applied to determine whether a
functionary is a judicial admin functionary:
Material test:
a) Is there a dispute regarding rights, privileges, powers or
duties?
b) Has there been a decision and application of the law
regarding the rights and duties?
Formal test:
a) Does the administrative institution possess similar attributes
to those of the courts = independence, accessibility,
application of hearing procedures and legal qualification of
members?
b) Legal force of the judicial act – whether the effect of the
decision is final and binding

CLS cc
9
Only a genuine judicial function will meet all the formal and material
requirements – non judicial actions may comply with one or more of
the tests but not all of them

Such action takes effect as soon as the decision is made
WHEN THE ACTION TERMINATES:

Once the Board has made its decision its FUNCTUS OFFICIO: this
means that it CANT then amend of appeal its decision
Its duties are done = the matter has been finally dealt with and the
administrator cant then change his mind
PURELY ADMIN ACTION:

Its action concerned with the day-to-day business of implementing
and administering policy
Divided into:
Consensual admin action: Authoritative admin action: it

requires the consent and involves the exercise of a public
cooperation of the persons power = pure admin action as you
affected within the admin law don’t need consent or cooperation
relationship – e.g. collective of the other person to make the
labour agreement decision – e.g. the granting or
refusing of a trade license –
however the Peron in authority
isn’t free to make any decision
they want, the decision must be
in terms of the prescribed law
4 types:
1. Mechanical admin action: Defined instruction to the authority
to perform the duty – there is no element of choice or
discretion – it’s a rubber stamp action
2. Discretionary admin action:
The organ of state has discretion about how the action is
to be performed = has a choice between 2 or more
alternatives.
1. Wide discretion: leaves a large measure of
freedom to the decision maker
2. Narrow discretion: legislation lays down a
number of options
3. Action by the police:

Usually takes place on the spur of the moment and in an
emergency situation – arrest, detention and interrogation

CLS cc
10
are serious infringements of personality rights – freedom –
police powers are subject to the law

Such action takes effect when the decision becomes known
• Publication
• Individual notification
WHEN SUCH ACTION TERMINATES:
Invalid action: can be changed by the administrator, as he is fixing an

action, which was defective in the 1st place
Valid action:
Valid burdensome Valid beneficial Action that affects

action: E.g. licence action: someone’s status: e.g.
refused. May be changed an adoption order.
ONLY if the
May be changed as it Administrator has Can’t withdraw
places a duty on the been given the power unless authorised
individual. to change it expressly expressly or by
or by necessary necessary implication.
This rule gives the implication – e.g. if a
Administrator the license has been The Administrator
opportunity to correct issued you cant just who takes this kind of
his own mistakes. revoke it decision = functus
officio.
THE DISCRETIONARY POWERS OF THE ADMINISTRATOR
This is the power of the administrative authority to make a choice

between various possible courses of action. However, such
administrative authority is not permitted to exercise the discretion
arbitrarily, carelessly or irresponsibly. Therefore, the discretion must
be exercised lawfully and in accordance with legal requirements.
The discretion of the administrator may, depending on the

empowering legislation, be exercised with a wide approach or with a
narrow approach.
The wide approach: The law (empowering legislation) provides a large

measure of freedom of choice. Still however, the administrator may
not act as he pleases.
The narrow approach: The empowering provision may lay down a

number of options, which the organ of state must take into account
before exercising the discretion.

CLS cc
11

CLS cc
12
CHAPTER 5
JUST ADMIN ACTION
S33: all admin action must be

• Lawful,
• Reasonable and
• Procedurally fair and
• Written reasons must be given for action that adversely affects
rights
Before the constitution they had to rely on: legislation, common law
and case law to determine the requirements for valid admin action.
Although we now have the constitution, which is supreme and which
is the main source for admin action we still look at other sources
In the WIDE SENSE: Just admin action: authority of the

administrator to make a decision must be empowered by law
• Just admin action is aimed at preventing public institutions and

functionaries from abusing their power, in dealing with
individuals who are in a subordinate position.
• For the individual just admin action is aimed at protecting him
in any dealings with public functionaries – it guarantees just
treatment for the individual in his relationship with public
functionaries
Just admin action demands the promotion and maintenance of

transparent, accountable and open admin action on the part of the
public functionary – this will happen when public institutions obey
the constitution:
S195 of the constitution:

a) Promote and maintain professional ethics
b) Promote efficient and effective use of resources
c) Development orientated public admin
d) Accountable public admin
e) Promoting transparency by providing the public with timely,
accessible and accurate information
These when read with S33 are aimed at creating a duty to achieve and
uphold a fair and honest admin, which serves the interests of the
general public.
Just admin action, which incorporates accountability and

transparency in the executive functions will ensure:
- Increased participation by the public in the exercise of public
functions
- That will weigh up their decisions against the values in the
constitution

CLS cc
13
- Admin accountability
Just admin action: umbrella requirement to all the requirements for

valid admin action – determines the legal boundaries of any admin
action and ensures that admin action is performed in accordance with
all the relevant rules prescribed by law
Ultra vires: to act beyond ones powers – exceeding your powers

Narrow approach – compliance with the provisions of the empowering
legislation is all that’s needed
Intra vires: umbrella concept because it includes all the requirements
for valid admin action
Administrative legality: requires that any admin action should be in

accordance with all the requirements of the law – it should be
regarded as the basis of all admin action
Applying ones mind to the matter: when a public functionary hasn’t

complied with all the requirements for validity = she hasn’t applied
her mind to the matter
• Administrator must comply with the law
• Serve the public
• Protect human rights

CLS cc
14
CHAPTER 6
LAWFUL ADMIN ACTION
The right to lawful admin action has been included in the constitution
– among the reasons put forward for the inclusion of the right is:
1. The guarantee of lawful admin action is to prevent the adoption
of any laws that will exclude judicial control over admin action –
before 1993 parliament was supreme and could pass any law
they wanted no matter how discriminatory as long as they
followed the correct procedure (ouster clause: is a provision in
legislation that excludes or restricts judicial review of the
admin action by the courts)
2. Wide approach to ultra and intra vires: requires compliance
with all the statutory and common law requirements for lawful
admin action
Lawfulness in other provisions in the constitution:

All organs of state must comply with the law – guidelines have been
made to protect the individual against abuse of power.
No rights apply absolutely and can be limited:

S36: limitations must be reasonable and justifiable in an open and
democratic society based on human dignity, equality and freedom:
look at: the nature of the right, purpose of the limitation, nature and
extent of the limitation, relation between the right and limitation and
less restrictive means of achieving the purpose
PAJA:
The Act has been adopted in order to:
a) Provide for the review of admin action by the court
b) Impose a duty on the state to give effect to S33
c) Promote an efficient admin and good governance
d) Create a culture of accountability, openness and transparency
THE ADMINISTRATOR:
PAJA says an administrator is an organ of state or any natural or
juristic person taking admin action
Administrator is always an administrative functionary or an organ of
state. When performing admin action the administrator is clothed with
authority and has a legal power of discretion
Qualifications of the administrator:

administrator gets his authority from legislation – the empowering
provision prescribes that the administrator must posses a certain:
• Status
• Qualification
• Attributes

CLS cc
15
• Experience and
• Knowledge
If he doesn’t have these qualifications – it can’t perform valid admin

action, even though the action may meet all the requirements.
THE RULE AGAINST DELEGATION

Delegate: entrust a task, responsibility to someone else.
An NB part of the provision dealing with qualifications of the
administrator relates to the prohibition on the delegation of power.
This rule is contained in - delegates delegare non potest = the
person to who the power is granted may not delegate it to another
(Foster).
The administrator who has authority must exercises that authority
himself (Shidiack).
The main reason for this rule is that the Administrator is given a
particular function based on his qualifications, knowledge, expertise
etc.
CANT DELEGATE: unless allowed to do so expressly or by necessary

implication in the Legislation
When delegation is allowed:

S238 of the constitution: an executive organ of state may:
a) Delegate any power or function that’s to be exercises in
terms of legislation to any other executive organ of state,
provided the delegation is consistent with the legislation in
terms of which the power is exercised or the function is
performed
b) Exercise any power or function for any other executive on an
agency basis
Rules apply when delegation is permitted:

1. If the administrator is authorized to perform a
particular action and this entails the use of a
discretion, the task concerned cant be delegated
unless its authorized by statute
2. An administrator that exercises a discretion and

makes a decision isn’t prevented from instructing a
subordinate administrator to merely implement the
decision
3. The rule against further delegation applies

CLS cc
16
4. Administrator may appoint a fact finding committee
to assist it provided the actual discretion is exercised
by the proper authority
FORMS OF DELEGATION
MANDATE: the senior administrator makes the decision and then

hands it over to another to implement or execute – this isn’t true
delegation
DECONCENTRATION: internal hierarchy – main reason for this

delegation to ensure division of labour and the quick, efficient
execution of government function
Rules:
1. The head of the hierarchy may withdraw the delegation at
any time and perform the function personally
2. When the delegate performs a function on behalf of the
superior, she acts in his place and the function is
regarded as being done by the superior
3. The delegans (superior) may exercise control over the
delegate – may require a report and if the task isn’t
correctly completed she may relieve him of his duty
4. Functionaries in the same hierarchy cant become involved
in a legal dispute with each other
This is partial delegation
DECENTRALIZATION: the superior transfers certain powers to an

independent body (minister appoints a board of experts to issue
licenses) the superior may not personally perform the function that
he’s delegated but he exercises control in 2 ways:
i. By appointing the members of the body
ii. By appeal or review of the decision made

CLS cc
17
POWERS OF THE ADMINISTRATOR:
Administrator isn’t allowed to take any admin action that hasn’t been
authorized by law – the content on what the administrator is allowed
to do is in the empowering legislation
The content and scope of the admin authority depends on:

- The statute
- Rules of statutory interpretation
- Principles of admin law developed by eh courts
In the empowering legislation – provisions delimit the administrator’s

powers as to:
a) Geographical area: where the administrator is allowed to
perform certain takes within a specific area
b) Time: if a specific time is prescribed for the performance of his

functions, the administrator has no authority to exceed the time
limits
c) Object: purpose for which the power was granted – Mokoena: the
commissioner of prisons had been authorized to regulate activities
in prisons, among other things visits to the prisoners from their
legal representatives, court said the commissioner cant prohibit
these visits absolutely
NB: UNAUTHORISED PURPOSE:

The administrator must exercises his powers for an authorized
purpose – must use his powers for the object stated in the
empowering legislation.
Where he uses his power for a purpose other than that in the
legislation his action amounts to an abuse of power for an
unauthorized purpose
Where an administrator exercises his power for an unauthorized

purpose, the legal force of the empowering statute is extended in an
unauthorized manner – administrator has taken over the functions of
the legislature – this goes against the separation of powers
The test is objective – we don’t look at what the administrator

believed but whether the authorized purpose has been achieved.
An administrator who exercises his power for an unauthorized
purpose doesn’t necessarily have a fraudulent intention: he may be
bona fide BUT it amounts to ultra vires action = unlawful no matter
how commendable his intention was
University of Cape Town: minister of education stopped payment of

state subsidies to the university on the basis that the university
hadn’t upheld the law and order on the campus – the power in the

CLS cc
18
University Act: the university argued that the purpose of the payment
of subsidies was to promote tertiary education and not to uphold law
and order. Court said minister’s action was invalid
Rikhoto: admin board implemented the Consolidation Act in such a

way to exclude the applicant from qualifying as a resident in the
prescribed area – the applicant alleged that he had worked in the area
for an employer for not less than 10 years continuously and he
therefore qualified as a resident – the court rejected the respondent
allegation that the applicant hadn’t worked for one employer
continuously (call in procedure, where he and to renew his service
contract annually) had created breaks in his service – court said they
couldn’t rely ion these call in procedures as a way of frustrating the
act
Cassiem: the power to revoke prisoner’s privileges in the event of

abuse of those privileges was improperly used to punish prisoners for
other transgressions
UNAUTHORISED PROCEDURE:
Administrator uses an unauthorized procedure when the proper
procedure is more difficult and time consuming – takes a short cut
and undermines the law
Van Coller: the director of education transferred an educator about

whose conduct many complaints had been made to another post
instead of taking disciplinary steps – court said this amounted to a
disciplinary measure = circumvented the rules of natural justice (give
him an opportunity to state his case) director acted unlawfully in
taking a short cut
Pretoria City Council: the court found that the city council relied on a
private sale procedure to enforce an expropriation of property – didn’t
use the proper procedure
ULTERIOR MOTIVE: IN FRAUDEM LEGIS

This defeats the law.
In fraudem legis: the administrator deliberately and intentionally

evades the provisions of the legislation
Mala fides: the administrator is required to apply his mind to the

matter – exercise his powers in good faith and comply with the
requirements for JUST ADMIN ACTION
Mala fides:
• Wide sense: wrongful use of power
• Narrow sense: fraud, dishonesty and corruption

CLS cc
19
Such a test is subjective looking at the intention of the legislature
Hart: the decision of the municipality to close swimming pools was

done for the improper purpose of defeating the effects of the repeal of
the Reservation of separate Amenities Act

CLS cc
20
CHAPTER 7
PROCEDURALLY FAIR ADMIN ACTION:
The rules of natural justice: common law rules which apply to

admin hearings.
Demands the administrator follow procedural requirements which
include:
• Giving an individual the opportunity to present his case before
the administrator takes a decision
• Allowing an individual to counter adverse allegations
• Being impartial and unbiased.
These rules serve 3 purposes:

1. They facilitate accurate, informed decision making
2. They ensure that decisions are in the public interest
3. They preserve procedural values
AUDI ALTERAM PARTEM RULE:

Hear the other side
Consists of:
• The individuals opportunity to be heard on the matter
• Individual must be told of considerations which count against
him
• Reasons must be given for any decision taken
Individual must be heard:

a) Proper notice of intended action: individual must be given
enough notice of the impending action whether this is required
of statute or not – help prepare
b) Reasonable and timeous notice: give reasonable notice to enable

him to collect the necessary info to prepare their case – depend
on the circumstances of the case.
Turner: jockey was confronted with serious charges which hadn’t
been told to him before the hearing = set aside
Du Preez: reasonable notice when evidence detrimentally affects
them
NISEC: court found that this right doesn’t include complete
disclosure of documents – it does require that the aggrieved
person be provided with enough information to inform him of the
case against him so he has an opportunity to prepare
c) Personal appearance: its not essential for the person to appear

personally – can make written representations
d) Legal representation: doesn’t form part of this rule and can only
be claimed where its been conferred by statute = there is no
general right to demand legal representation – technical matters

CLS cc
21
affecting the individuals status, way of life = can get legal
representation
e) Evidence and cross examination: the right to call witnesses and

cross examine don’t form part of this rule
f) Public hearing: there is no absolute right to a public hearing –

confidentiality may be essential – but admin hearings will
usually be conducted in the open
Reasons for decisions:

B4: this was applied inconsistently in the past and often excluded in
the enabling act – the courts also said that the admin body exercising
discretion makes its own decisions and need not give reasons.
BUT the courts inferred the presence of improper motives or mala
fides when reasons weren’t given.
This position has been changed by S33 (2): written reasons must be
provided if a persons rights are adversely affected
NEMO IUDEX:
No one should be the judge in his own case:
The decision maker must be impartial = rule against bias.
The basis of this rule is that justice must be done and be seen to be
done.
Common examples of bias:

a) Presence of a financial interest: Rose: the chairman of the board
responsible for granting or refusing transport licenses was also
the director of 3 taxi companies – one of those companies opposed
the application for such permits – the company would benefit from
the refusal of applications – chairman refused to stand back and
participated in the proceedings
b) Presence of personal interest: Liebenburg: the mayor of a town

insisted on being present when liquor license applications were
being heard despite the fact that one of the applicants was his
brother. The license was granted to the brother and despite the
fact that a number of affidavits that the others weren’t influenced
by the majors presence, court found that the relationship led to
bias and set the decision aside – look at whether No person
would have a suspicion of bias.

CLS cc
22
The test to determine bias:
In BTR Industries SA v Metal and Allied workers Union the Appellate

division held that “in our law the existence if a reasonable suspicion of
bias satisfies the test…”. The Constitutional Court in SACCAWU v Irvin
& Johnson Ltd, preferring the phrase “a reasonable apprehension of
bias rather than a reasonable suspicion of bias, later confirmed this
test”.
LEGITIMATE EXPECTATION
The common law principle of legitimate expectation:
S1 PAJA: action, which affects a legitimate expectation, must be

procedurally fair
Laubscher: Natural justice applies even if there is NO VESTED RIGHT

but there is still a POTENTIAL RIGHT, the person has a right to be
hears before a decision is taken – this is in the fact that:
• A rights will be given (Traub)
• Existing right wont be taken away: Everett: the court found that
a person who got a temporary residence permit cant expect to
remain in the country for longer than the stipulated period – but
should he be asked to leave before the expiry of that period = he
got a right consisting of a legitimate expectation of being allowed
to stay for the permitted time.
Traub: in accordance with practice heads of department of a medical

faculty of a university selected students on merit and recommended
appointment as senior house officer to a provincial authority – the
provincial authority confirms the appointments by a matter of course.
A group of doctors signed a letter drawing attention to the unacceptable
conditions in the medical wards at a certain hospital. Afterwards the
provincial authority refuses to confirm their appointments because they
signed the letter. At no time were they heard on the matter they weren’t
allowed to state their side of the story.
They had no right to be appointed to the posts applied for = since the
authority just had to consider the applications without favor or prejudice
and look at their qualifications, experience etc.
In Traub: full recognition was given to the doctrine of legitimate

expectation – the court found that the doctors had a legitimate
expectation that the appointment by the provincial authority would follow
as a matter of course the recommendations of the heads of department.
CJ held that such a legitimate expectation might arise in at least 2
circumstances:
1. Express promise by the authorities
2. Regular practice

CLS cc
23
Legitimate expectation only gives someone the right to a hearing
The constitutional right to procedurally fair admin action

S33: everyone has the right to admin action that’s lawful, reasonable
and procedurally fair – if you are going to limit this right it needs to be
done in terms of S36
Courts interpretation of the constitutional right:

Kotze: the applicant sought review of the DG’s refusal to discharge him
on the grounds of continued ill health – the DG had been given medical
opinion to the effect that the applicants condition made him unfit for
continued government service.
Court found that the DG consideration of the information that didn’t
form part of the applicants application amounted to the denial of
procedurally fair admin action. The applicant should have been given
an opportunity to know about other information
Fraser: the applicant was a father of a child born out of wedlock. The
mother who decided to put the child up for adoption said her decision
was based on the applicant’s refusal to marry her, her inability to raise
the child as a single parent and her belief that the applicant shouldn’t
have access to the child because he had traits, which rendered access
undesirable.
Adoption proceedings were initiated and applicant tried to have it set
aside, he wanted to have the adoption proceedings stayed and institute
counter adoption proceedings – the commissioner decided the matter
without hearing oral evidence and awarded the child to the adoptive
parents, holding that it served the Childs best interests.
Applicant instituted review proceedings aimed at setting aside the
adoption order – he was entitled to be heard on the issue
PAJA and the application of Procedural Fairness
S3 (1): any admin action, which materially and adversely affects the
rights or legitimate expectation of anyone, must be procedurally fair
S3 (2)= the mandatory requirements for procedural fairness and

provides that the administrator MUST give the affected person:
1. Adequate notice of the action
2. Reasonable opportunity to make representations
3. Clear statement of the admin action
4. Notice of any right to review
5. Notice of the right to request reasons
S3 (3)= the discretionary requirements for procedural fairness and

provides that the administrator MAY give a person whose rights or

CLS cc
24
legitimate expectation has been materially and adversely affected an
opportunity to:
a) Get assistance
b) Present info and arguments
c) Appear in person
S3 (4): the administrator can depart from S3 (2) if it’s reasonable and
just looking at:
• The purpose of the legislation
• The purpose of the action
• Effect of the decision
• Urgency involved
• Good governance
S3 (5): a different procedure can be used if:

• Fair
• Authorized by the legislation
PUBLIC PARTICIPATION:
S4 PAJA: general relationships can commence on the making of

delegated legislation.
Marine Living Resources Act: looked at quotas for the fishing industry
– this has an impact on the fishing industry and requires public
participation:
§ Hold a public enquiry
§ Give notice and get comments
§ Use a different procedure
§ Use a new procedure in S4
§ Combo

CLS cc
25
CHAPTER 8
REASONABLE ADMIN ACTION
There has always been uncertainty about the reasonableness of

administrative action: 2 demands:
1. Separation of powers – it’s not the function of the courts to
substitute its decision for that of the public administrator.
Administrative action is usually related to the exercise of a
discretion – when reviewing admin action on the basis of
unreasonableness, so the argument goes the courts are required
to act as super administrative organs and substitute their
opinion for those of the administrator
2. The courts must ensure that the decisions of the administration

are in line with the requirements of basic fairness and
rationality = this will ensure just administrative action
EARLIER DECISIONS
Unreasonable action is indicative that some other valid requirement
for valid administrative action had not been met.
Judicial intervention is permitted only when there was GROSS

NEGLIGENCE:
§ Mala fides: Union Government
§ Administrator didn’t apply his mind to the matter: National
transport commission
Courts used a NARROW APPROACH
Looked at the unreasonable approach of the administrator.

The test is subjective – looks at the approach of the administrator.
S24 INTERIM CONSTITUTION:
S24 provided for administration that is justifiable in relation to the

reasons given for it where any of their rights are affected or threatened
Justifiable: the requirements that administrative decisions must be

rational and capable of being reasonably sustained having regard for
the reasons for the decision – there must be a rational link between
the decision and the reasons given for it.
TEST:
§ Subjective: look at the personal qualifications and experience of
the administrator.

CLS cc
26
§ Objective: a reasonable bystander must accept the decision even
if they would have made a different one
The Q: whether of the purposes for which a decision has been taken is
important enough to outweigh the right of the individual
Proportionality requires that in achieving a purpose, the harm to the

individual cannot be disproportionate to the gain of the community
The principle of proportionality has 3 elements:
1. Suitability: the administrator must choose only those means

that are most appropriate for achieving the desired end
2. Necessity: the administrator must only take such steps as are
necessary, if any prejudice to the individual is involved
3. Weighing up the advantages and disadvantages: look at any
injury caused to the individual and the public
Reynolds: the court looked at the content of the concept of

unreasonableness in light of the constitution. The court adopted a
less narrow approach – the test of gross unreasonableness doesn’t
accord with the modern approach to judicial review – they followed a
wider approach to unreasonableness – because the constitution in SA
is binding on everyone
Kotze: justifiable means: capable of being justified or shown to be just.

The administrator must apply his mind to the matter
TODAY:
Roman: the applicant a former prisoner was placed under correctional
supervision. He sought review of the decision of the commissioner of
prisons to reimprison him for non-compliance with the conditions of
correctional supervision.
The commissioner of prisons answered that he had exercised his
discretion to send the applicant back to prison granted to him by the
Correctional Services Act in a bona fide way and with due consideration
of all the facts.
Judge: a decision by the commissioner to re-imprison a probationer is
a reviewable administrative action and such a decision must be
justifiable, in relation to the reasons given for it.
To see if a decision is just look at:

§ Objective test
§ Wide approach
§ Must be objectively tested against the 3 requirements of
suitability, necessity and proportionality, which involve a test of
reasonableness.
Gross unreasonableness is no longer a requirement for judicial review.

CLS cc
27
.
The role of the courts in judicial review is no longer limited to the way
in which an administrative decision was reached but extends to its
merits as well.
S33 of the constitution: introduced completer review of the

reasonableness of administrative decision making = reasonableness as
a specific requirement for the validity of all administrative action
required the administrative action to be procedurally and
substantially fair and just
PAJA and the right to reasonable administrative action:

PAJA gives effect to the right to reasonable administrative action by
giving the individual the capacity to institute proceedings in a court
for there view of administrative action on the ground that: exercise of
a power or performance of a function authorized by the legislation, in
pursuing an administrative action is so unreasonable that no
reasonable person could have so exercised the power or performed the
function
The act doesn’t refer to the unreasonable result – it’s limited the
ground for review to the requirement of action which is so
unreasonable that no reasonable person would have exercised it = the
administrators subjective state of mind determines whether the
administrative action is valid or not = old traditional approach to
unreasonableness.
Conclusion: decisions such as Roman = indicate an approach favoring

inquiry into the effect and impact of the action
THE CONSTITUTIONAL COURT’S INTERPRETATION OF THE

RIGHT TO REASONABLENESS
Section 6(1) of PAJA gives effect to the right to reasonable

administrative action by giving the individual the right to “institute
proceedings in a court or a tribunal for the judicial review of an
administrative action” on the grounds that:
The exercise of the power or the performance of the function
authorized by the empowering provision… is so unreasonable that
no reasonable person could have exercised the power or
performed the function (s 6(2)(h)).
The Constitutional Court gave meaning to the content of s 6(2)(h) in

Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs 2004
when it held the following:
1. S 6(2)(h) must be read in line with ss33 of the Constitution;

CLS cc
28
2. An administrative decision is reviewable if it is one that a
reasonable decision maker could not reach (simple test);
3. What constitutes a reasonable decision varies from case to case;
and
4. To determine whether a decision is reasonable the following factors
must be taken into account:
a. The nature of the decision;
b. The identity and experience of the decision maker;
c. Factors relevant to the decision;
d. The reasons for the decision;
e. The nature of competing interests;
f. The impact of the decision on the lives and well being of
those affected by the decision.

CLS cc
29
CHAPTER 9
WRITTEN REASONS:
The need to be given reasons is part of common law audi alteram

partem rule.
The reasons show how the administrator functioned when he took the
decision and how the body performed the action - -whether the body
acted lawfully or unlawfully, reasonable or unreasonably.
An individual who wants to challenge an administrative decision is at

a disadvantage where reasons aren’t provided. How such a person can
raise failure of the administrator to apply his mind to the matter,
unauthorized purpose or mala fides on appeal or review, when no
information since no reasons have been given.
S24 OF THE INTERIM CONSTITUTION

S24(c): every person has the right to be furnished with reasons in
writing for administrative action which affects his rights or interests,
unless the reasons for the action have been made public
S33 (2) OF THE FINAL CONSTITUTION

S33 (2) final constitution: everyone whose rights are adversely
affected by administrative action has the right to be given written
reasons for the decision
The giving of reasons promotes fairness and proper administration,

since unsound reasons or the absence of reasons may form the
subject of review.
One of the best ways of ensuring openness is the requirement of
written reasons
When is the administrator required to give written reasons?

When rights are adversely affected
It’s illogical that a person who has a legitimate expectation is also
entitled to reasons – the dafter of the constitution tried to limit
litigation
PAJA
S5 provides for the giving of reasons as required by S33.
S5 (1): any person whose rights have been materially and adversely
affected by administrative action and who has not been given reasons
for the action may, within 90 days after the date on which that person
became aware of the action, request the administrator concerned to
furnish written reasons for the action.
S5 (2): provides that the Administrator must, within 90days of such

request, furnish the person with adequate reasons.

CLS cc
30
S5 (3) provides that failure to furnish adequate reasons raises a

presumption that the administrative action was taken without good
reason. The onus is on the administrator to prove that the failure to
provide reasons was based on good reason.
S5 (4): any departure from the rules must be reasonable and just, in
the circumstances = S36 limitation clause.
S5 (5): the Administrator may follow a different procedure provided

that such procedure is fair and authorized by the empowering
legislation.
S5 (6): the Minister may, at the request of the Administrator, publish

a notice in the Government Gazette, providing a list which specifies
any administrative action or group/class of actions where reasons
must be automatically furnished to those whose rights have been
adversely affected by the action without the need to request reasons.
Efficient administrative action: In order to promote an efficient

administrator, the minister may at the request of the administrator or
by notice in the Gazette publish a list specifying any administrative
action in respect of which the administrator will automatically furnish
written reasons.
The act also provides that a court has the power to review
administrative action if the action itself isn’t rationally connected to
the reasons given for it
ADEQUATE REASONS:
What will constitute adequate reasons will vary from case to case
depending on the circumstances of each case. However, the reasons
provided must “suit” the action taken (there must be a rational link
between the action taken and the reasons given).
Moletsane: the court held that what constitutes reasons ought to be

understood in the light of S24 (interim) – that administrative action be
justifiable in relation to the reasons given for it.
The more drastic the action taken, the more detailed the reasons
which should be advanced for it.
In this case the administrative action related to the suspension of a

teacher. This was a preliminary step before the teacher was charged
with misconduct.
The court found that the action wasn’t as drastic as the case in which
a person is convicted of misconduct and discharged. In such a case
one would expect more detailed reasons to be furnished to enable one

CLS cc
31
to assess whether the administrative action is justifiable in relation to
those reasons.
The court found that the reasons provided were sufficient.
Court also found that the administrative action taken (suspension)
was justifiable in relation to the reasons advanced, having regard to
the applicant’s rights, which were affected or threatened.
In the Wraith case the Court held that the Applicant must understand
the reasons given.
In Bato Star the SCA held that the reasons must explain why the
action was taken or not taken.
In Nomala the court held that the reasons must provide sufficient
information for the affected individual to prepare an appeal.

CLS cc
32
CHAPTER 10
CONTROL OF ADMIN ACTION
2 TYPES OF CONTROL
1. Internal or extra judicial control
2. Judicial control
INTERNAL/ EXTRA JUDICIAL CONTROL
CONTROL BY PARLIAMENTARY PUBLIC BODIES

SENIOR OFFICERS CONTROL
§ Review Admin policy and § Public protector
decisions: public concern can be § Human rights
confirm, set questioned in commission
aside or change parliament § Commission for
§ Look at the gender equality
desirability of Ministers are § Auditor general
the action collectively and § Electoral
§ Look at the way individually commission
the decision is accountable to
reached parliament Such bodies are:
§ Decision isn’t Independent,
final and Ministers must table impartial and have no
binding reports in parliament prejudice
Parliamentary
enquiries
THE ADVANTAGES OF INTERNAL CONTROL
1. Internal remedies are less expensive, less burdensome on the in

individual and much faster than judicial remedies;
2. Administrative decisions can be thoroughly re-evaluated;
3. Inefficient Administrators may be brought to book; and
4. Administrators may be reprimanded and required to give reasons
for their decisions.

CLS cc
33
JUDICIAL CONTROL
NB of judicial review and the courts:
Checks and balances – ensures that each branch of government is
subject to some influence and control by the others – to prevent the
abuse of power.
LOCUS STANDI
Locus standi: is the capacity of a person to bring a matter to the court

S38: provides that anyone listed in the section has the right to
approach a competent court, alleging that a right in the Bill of rights
has been infringed or threatened:
The people who can approach the court are:
a) Anyone acting in his own interest
b) Anyone acting in the interests of another who cant act in their
own name
c) Anyone acting as a member of or in the interests of a group or
class of people
d) Anyone acting in the publics interest
e) An association acting in the interests of its members
LEGAL REMEDIES:
1. Statutory appeal: in SA neither the High court nor the

SCA has inherent appeal jurisdiction – courts can only
hear appeals if provided for by statute. An appeal may
only be lodged against the final decision or order
2. Review: court have an inherent power of review in

common law
Judicial review can take one of the following forms:
a) Review of admin action in terms of the constitution
b) Review of admin action in terms of PAJA
c) Review of proceedings of lower courts in terms of the
Supreme Court Act
d) Review in terms of the provisions of specific statutes
3. Interdict: is aimed at preventing unlawful admin action:

requirements:
a) The applicant has a clear right which is being
threatened
b) There is no other remedy available
c) The matter is so urgent that the applicant will suffer
irreparable damage or prejudice if the interdict isn’t
granted – urgent
4. Mandamus: aimed at forcing an administrator to perform

some duty

CLS cc
34
5. Declaratory order: the court gives a definite answer to
the question of what the legal position is regarding any
particular person or given state of affairs
6. Defence in criminal proceedings: if a person is charged

with a criminal offence created by legislation, the person
may defend the charge by challenging the validity of the
admin decision that is the subject of the dispute
GROUNDS FOR JUDICIAL REVIEW
S 6(2) of PAJA contains the statutory grounds for judicial review

which are further grouped into different categories based on:
1. The decision maker (Administrator):

a. Ultra vires – the administrator lacked specified qualifications,
he used his powers for an unauthorized purpose, he failed to
adhere to the provisions relating to time;
b. Unauthorised delegation – the administrator was not
authorized to delegate;
c. Nemo Iudex – the administrator was biased
2. The manner in which the decision was taken:
a. The action was not procedurally fair;
b. The action was materially influenced by an error in law;
c. The action was taken:
i. For unauthorized reasons;
ii. For unauthorized purpose;
iii. In bad faith.
3. The administrative action itself:

a. Contravenes the law / is unauthorized by the empowering
provision;
b. Failure to take a decision;
c. Unreasonable action;
d. The action was unconstitutional or unlawful.
LIMITATIONS ON JUDICIAL REVIEW

Pre-conditions before judicial remedies can be used:
all internal/ domestic remedies must be exhausted = all internal
channels should be used before a court of law is approached.
• Its unreasonable for a person to rush to court before his
statutory remedies have been exhausted
• Statutory remedies are cheaper and easier
• Helps prevent the court from being overloaded with cases that
can be dealt with by the administrator himself

CLS cc
35
EXCEPTIONS: WHEN YOU CAN GO DIRECTLY TO COURT
1. The case has already been prejudiced by the

administrator
2. The decision is made in bad faith, fraudulently, illegally or
hasn’t been made by the administrator
3. The aggrieved party has an option to use an internal
remedy or to approach the court directly
4. The administrative authority has come to an unacceptable
decision
5. The administrative body has agreed that judicial review
may start immediately
6. Internal remedy can’t provide the same protection as
judicial review.
What is the difference between appeal and review?

Appeal: is possible only if the enabling legislation makes provision for
it – the appeal is limited to the record of the proceedings but can
inquire into the merits of the decision
Review: of administrative action is always possible – not limited to the

record, but is limited to reviewing how the decision is reached (an
inquiry into the lawfulness, procedural fairness and reasonableness of
the decision)
THE ORDERS MADE BY A COURT IN TERMS OF SECTION 8 OF

PAJA
1. To give reasons or to act in the required manner;

2. Prohibiting the Administrator from acting in a particular manner;
3. Set aside the decision of the Administrator;
4. Declare the rights of the parties;
5. Grant a temporary interdict; and
6. An order as to costs.

Powered by TCPDF (www.tcpdf.org)

Exam Pack

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Exam Pack

Uploaded by

Copyright:

Available Formats

ADL2601 EXAM PACK 2020

Downloaded by: jodieganess1995 | jodieganess1995@gmail.com

Downloaded by: jodieganess1995 | jodieganess1995@gmail.com

Downloaded by: jodieganess1995 | jodieganess1995@gmail.com

Downloaded by: jodieganess1995 | jodieganess1995@gmail.com

Downloaded by: jodieganess1995 | jodieganess1995@gmail.com

Downloaded by: jodieganess1995 | jodieganess1995@gmail.com

1 The June/July 2019 examination paper

Answer the following questions and substantiate your answers.

Downloaded by: jodieganess1995 | jodieganess1995@gmail.com

(a) an organ of state, when-

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

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

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

Downloaded by: jodieganess1995 | jodieganess1995@gmail.com

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

(a) true administrative act.

(a) Procedural fairness

Downloaded by: jodieganess1995 | jodieganess1995@gmail.com

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

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

(a) audi alteram partem

Downloaded by: jodieganess1995 | jodieganess1995@gmail.com

• Opportunity to obtain assistance, even legal assistance in complex cases

Downloaded by: jodieganess1995 | jodieganess1995@gmail.com

Downloaded by: jodieganess1995 | jodieganess1995@gmail.com

Control by superior/senior administrators or specially constituted bodies/ institutions.

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

(a) anyone acting in their own interest;

(d) anyone acting in the public interest; and

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

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

(i) to give reasons, or

(ii) to act in a required manner

(a) setting aside the administrative action and –

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

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

Downloaded by: jodieganess1995 | jodieganess1995@gmail.com

Downloaded by: jodieganess1995 | jodieganess1995@gmail.com

Downloaded by: jodieganess1995 | jodieganess1995@gmail.com

Downloaded by: jodieganess1995 | jodieganess1995@gmail.com

Downloaded by: jodieganess1995 | jodieganess1995@gmail.com

1 The November/December 2018 examination paper

Mr McDonald is the owner of an independent, Durban-based property development company called

Answer the following questions and substantiate your answers.

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

Yes, Mr McDonald is subject to an individual administrative law relationship, he is in a subordinate

1.2 List three persuasive sources of administrative law. (3)

(a) an organ of state, when-

There are exceptions to the definition.

(a) the Promotion of Access to Information Act 2 of 2000 (PAIA).

2.1.3 Res iudicata means that…

(a) all administrators must act reasonably.

(a) African Humanism

(a) The Constitution of the Republic of South Africa, 1996

Section 33 reads as follows:

3.1 Briefly explain the rule against delegation. (5)

3.3 What are the three forms of delegation? (3)

(c) the range of factors relevant to the decision;

The most common examples of bias are the following:

(a) the presence of pecuniary/financial interest; and

(b) the presence of personal interest.

(a) A pecuniary (financial) interest