fer COrnieee a law 1 3 The main ideas What is administrative law? Sources of administrative law ‘The consticutional right co just administrative action “The Promotion of Administrative Justice Act (PAJA) ‘What is administrative action? The main skills Define and explain administrative law. entfy the sources of administrative law. Familarise yourself with the constitutional framework of administrative law. Understand basic principles governing the right to just administrative action. Know what the Promotion of Administrative Justice Act is and what it deals with. Understand the importance of s 33 of the Consticution for administrative law. Explain whether the common law principles of administrative law still apply. Discuss the tools available for making the public administration accountable to the people. Explain the meaning of ‘administrative action’. Apply your mind In Vamazonke v MEC for Social Development, Eastern Cape, and Three Similar Cares 2005 (6) SA 229 (SE) public servants in che Department of Social Welfare failed to perform their administrative duties properly and cimeously by not considering applications for disability grants. As a result ofthis, many persons are suffering real hardship through che ineffectiveness ofthe public service. This was one of the first cases where judges were no longer silent and began to express their extreme dissatisfaction with the sheer volume of applications complaining of maladministration in the Eastern Cape. Many similar cases throughout the country came before the courts after that. Do you think that these administrative failings infringe o threaten the fundamental rights of large numbers of people to have access co just administrative action? In this chapter, we will look at another branch of public law. Administrative law governs the public administration in South Aftica and affects administrative procedures by administrators. It is therefore important that we define administrative law and explore the sources of administrative law and administrative power, the constitutional framework of administrative law and the importance of the Promotion of Administrative Justice Act 3 of 2000 (PAJA).. Before you start Have you ot any of your family and friends ever applied for an ID document, bith certificate ot old-age pension? When a person applies for this kind of document, the department of home affairs must decide ‘whether of not to award it. The department of home aff depatements, the police and the army, and organisations, such as ESKOM and Telkom and the SABC, form part of our country’s public administration. The administration does the day-to-day work of government and is commonly known as the ‘public service’ or ‘civil service’. Ic is made up of: together with all the other government Chapter 13] Administrative law 274all government departments at national, provincial and local levels 8 the police and che army the ‘parastatals’, which are organisations such as public enterprises and regulatory boards, An administrator s ‘We often apply for services, licences or documents from the public administration and any person within the sometimes out applications are turned down, although we may not be given a reason for administration who takes the decision. When the administration takes a decision that affects people's rights, itis, decisions that amount to tforming an administrative act. Section 1 of PAJA says an administrator is an administrative action. e . . a. This could include Ministers, “an organ of state or any natural or juristic person taking administrative action”, Directors Genera, Directors, Assistant Directors ‘Administrators are required to follow the rules of administrative law whenever they make and clerks. their decisions. 13.1 What is administrative law? ‘Administrative law isthe branch of law that deals specifically with and governs the administration. ‘As explained above, the administration in South Africa is made up of all the different national, provincial and local departments (including municipalities) and also includes the army and police and organisations, such as the South African Broadcasting Corporation (SABC) and Telkom. “There are two types of administrative law: general administrative law and particular administrative law. © General administrative law. This type of law applies to the whole of the government administration in South Aftica. I ets out all the rules and principles that must be followed by organs of state and their administrators when they make a decision that affects people’ rights. It also sets out the temedies, or assistance and applicable procedures for people whose rights have been affected by administrative decisions. © Particular administrative law. This kind of law law governs a specific atea of the administration, For example, when you apply for a passport or birth certificate, a particular stacute ot law gives a specific administrator or administration the power to ac. This specific law forms part of particular administrative law and will give che official in the department of home affairs the power to issue a passport or birth certificate. ‘A thorough examination of che legal literature reveals further that various legal commentators have divergent views on what is meant by administrative law. They do, however, agree on its purpose. For example, all che legal commentators agree on the following three points: 1. Administrative law is concerned with attaining administrative efficacy; 2. Ici concerned with ensuring that che power exercised by the administration is tightly controlled so that human rights are not abused; 43, There is agreement that administrative law is part of public law. This view is also expressed in the case of Pharmaceutical Manuficture Association of South Aftica In re: the ex parte application of the President of the Republie of South Africa 2002(2) SA 674 (CC) para [45] where Chaskalson P (as he shen was) said: administrative law, which forms the core of public law, occupies a special place in our jurisprudence. Ic is an incident of the separation of powers under which courts regulate and control and the exercise of public power by other branches of government, their inter-telationship and the boundaries berween them", ‘To sum up, it can be said chac administrative law: regulates the activitics of bodies that exercise public powers or perform public functions & empowers administrative officials so that they can implement policies and programmes Reasonableness means 12 limits the exercise of power by officals by requiring all administrative action t0 meet there must be a good certain minimum requirements of lawfulness, reasonableness and fairness. reason for the decision, 272 Chapter 13 | Administrative law“The Promotion of Administrative Justice Act 3 of 2000 (PAJA) will be discussed in more detail later in cis chapter. It forms part of general administrative law. It applies to the entire government administration, but does not give specific powers o the administrators. Rather, i tells them how t0 ‘exercise their powers. We have to look at other laws that form part of particular administrative law, to tell us more about the specific powers of administrators. Let us take an example, The South Aftican Passports and Travel Documents Act 4 of 1994 (the Passports Act) deals with passports. It is a specific piece of legislation that gives the minister of home affairs the power co issue passports and to make regulations to cover things like what forms need to be used; what application fees need co be paid and similar matters. ‘Suppose the minister refuses to issue you with a passport. Must a hearing be held before the decision is taken by the minister? Must reasons be given for the decision? Ifthe Passports Act does not answer these questions for you, you must turn to general administrative law (in the form of PAJA) co tell you how the specific powers of the administrator under the Passports Act must be exercised. Before the administrator makes a decision, he must follow the specific law that applies to his function (for example, the Passports Act), as well as PAJA, which contains rules about how the decision must bbe made. You may realise now that administrative law overlaps co a considerable extent with constitutional law. This is because constitutional law and aciministrative law deal with organs of state, their interactions and theit relationship with individuals. However, administrative law differs from constitutional law, because administrative law focuses on a particular branch of government — the public administration and on a particular activity of che stare ~ administrative action, while constitutional law is more concerned with the establishment and steuctuting of government and wich the division of state power beeween the Iegislature, the executive and the judiciary. Activity 13.1 ‘Does PAA form part of general administrative law or particular administrative law? Give a ~ reason for your answer 13.2 Sources of administrative law What or who gives an administrator a specific power or tells her to exercise it in a particular manner? “There ate different sources of administrative law in general, but also different sources of administrative power. Itis important to differentiate between the two. ‘Administrative power, as the word the power of an administrator, 0 ther sources of administrative power are all forms o legislation, such as the Constitution, Acts of Parliament, provin« and minister most important sources ofa 7 ‘The ne of judicial legislation precedent means that ® judicial precedent the lower courts must & common law. follow the decisions of higher court. Let us look at these sources in more derail, Chapter 13 | Administrative law 27313.2.1 Legislation After 1994, the Constitution and PAJA, which gives effect ro the Constitution, have become the most important sources of both administrative law and administrative power. “The Constitution is the supreme law of South Aftica, This means that all other statutes that give administrators powers must be in line with the Constitution and may not violate any of its provisions. Ie also contains che Bill of Rights, which lists all che human rights that are protected and thae all people in South Africa have. It forms part of the Constitution as an important source of administrative law and rakes sure that people are treated furly. The Constitution, together with PAJA, determines the powers, functions and organisation of che administration. ‘Many other rules of administrative law can be found in other Acts of Parliament — for example, che Passports Act. As we have seen, legislation is also an important source of administrative power, since administrators receive their power to act from these statutes 13.2.2 Judicial precedent Courts are often in a position where they develop the law. Sometimes the Constitution or a statute does not have an answer to a specific question. In these cases, the courts must reach their own conclusion. and provide an answer to the legal question. These decisions by the courts are an important source of administrative law and can guide the government and administrators when they have to make decisions. ‘We have seen that the principle of judicial precedent means that lower courts are bound by the decisions of higher courts. For example, the High Court is bound by the decisions of the Supreme Court of Appeal and Constitutional Cour, and all Magistrates’ Courts are bound by the decisions of all higher courts, Let go back to our example. Suppose your friend applies for a passport on your behalf and your application is not successful. It may be that the Passports Act, the regulations or even the Constitution cannot provide you with an answer to your problem and that you have to go and look somewhere else. A decision from a court on a similar matter can then possibly provide an answer, Judicial precedent, in the form of decisions by our courts, can be an important and useful source of administrative lave 13.2.3 Common law Common law is known as the unwritten law in South Africa, in the sense that itis not found written down in statutes, documents or even the Constitution, As we know by now, Roman-Dutch law and English law form the basis of South Africas common law. They have both contributed to the development of administrative law in South Africa ‘Some of the administrative-law principles that had their origin in the common law are now written down in the Constitution or in legislation. An example ofthis is the common-law principle of reasonableness, which is contained in both the Constitution and PAJA. Under common law, reasonableness had the same meaning as it does under che Constitution and PAJA. An administrator hhad to make a decision on the information before him and had to understand and correctly apply the provision that empowered him to act. The decision had to be supported by sound reasons and should not have led to unfair or uncertain consequences. Previously, the court had to come ro its own. conclusions or had to look at other court decisions to determine what the content and the requirements for an unreasonable action or decision was. Some principles are still not written down in the Constitution or other legislation, like the principle of proportionality. The principle of proportionality requires that when, for example, the Minister of Home Affairs rejects an application for a passport, there must at least be @ reasonable relation between why the passport was rejected and the circumstances that were taken into account by the minister ~ for ‘example, the applicant may have been a forcigner or a child. In this ease, the common-law principle of proportionality provides the necessary guidelines to the court and will be an important source of administrative law. 274 Chapter 13 | Administrative lawIe is important to note that although a lot of our common-law principles now form patt of the Consticucion and other legislation, they can still provide judges with important information where that information is not set out clearly in the Constitution or legislation. 13.3 The constitutional right to just adi trative action Before 1994, South Afiian administrative law developed wichin a system of parliamentary pa iamentan sovereignty. The courts had no right ro enquite whether actions by the state administration fenenetgnty eant were fr the benefc ofthe public or forthe benefc of private individuals. The apartheid that Parament ot the legate, ws the highest authority and notte Constitution, 25 it now. parliament had the power to make any laws, however unreasonable or unacceptable, and che administration was given all che power to exercise such unteasonable laws. We entered a new phase of administrative law when we adopted the Interim Constitution, We did away with parliamentary sovereignty and the Constitution is now the supreme law in South Aftica. With the implementation of the 1996 Constitution and PAJA, the public administration is required to exercise its powers and functions in accordance with the Constitution and in a manner that is fair and for the benefit ofall people in South Africa As you now know, the Consticution contains the Bill of Rights that the rights ofall people in 13.3.1 Section 33: the right to just administrative action Section 33 of the Constitution gives everyone the right co just administrative action, [F jut means that something something must be just, it means that it must be fair. More particularly, the section provides is fac as follows: © Irguarantecs that administrative action will be reasonable, awful and procedurally fais. ‘Administrators must act within the law and follow fair procedures. For example, people should be told in advance what action is being planned and they must be allowed to rell their side of the story. ‘The section says that people have the right to request written reasons for administrative action that negatively affects them. & Section 33 also says that national legislation must be enacted to give effect to these rights. (PAJA was enacted to give effect to these rights.) Briefly, chis means people have aright: ® to fait and reasonable administrative action that is allowed by che law; to be given reasons for administrative action that affects them in @ negative way; and ® to challenge decisions that they believe are wrong. “The effect on administrative law of s 33 of the Constitution is that the right co just administrative action is guaranteed to every person asa fundamencal right in the Constitution, Administrators must comply with all the requirements for valid administrative action when they take decisions ot perform theit functions, The exact meaning of administrative action is explained in the section below. 13.3.2 Section 195: basic values and principles governing public administration Section 195 states that che public administration must be governed by the democratic values and principles enshrined in the Constitution. The following principles are included in the section: 13 ‘The public administration must promote and maintain a high standard of professional ethics. 18 Efficient, economic and effective use of resources must be promoted. 8 The public administration must be development-orientated. Chapter 13 | Administrative law 275& Services must be provided impartially fairly, equitably and without bias Pe eee 5 People’s needs must be responded to, and che public must be encouraged to participate often took decisions that in policy-making. affected people's ive 8 The public administration must be accountable. ‘without having to explain what they were doing ‘Accountable government takes responsbilty for is decisions and is able to carcer-developmenc practices to maximise human potential pe Che eee 8 The public administration must be broadly representative of the South African people. conduct and obligations. Transparency must be fosteted by providing the public wich timely, accessible and accurate information. 5 The public administration must cultivate good human-resource management and Activity 13.2 | Find some news reports about the government being accountable for its actions and, also some | instances where the government did not conduct its actions in an accountable manner. 13.4 The Promotion of Administrative Justice Act (PAJA) PAJA gives effect to s 33 of the Constitution, Section 33(3) requites the enactment of legislation to give effect to the right to just administrative ation. To this end, Parliament passed PAJA, which was signed in February 2000, PAJA isa very important law because it makes the administration accountable to people for its actions and it ensures that: people's rights are protected © people are treated fairly = poople know why decisions have been taken an accountable public administration is developed. What, specifically, does PAJA deal with? Among other things it: = requites an administrator to act lawfully and reasonably, and to follow fair procedutes when making decisions requires an administrator to give adequate reasons for his decisions = requires an administrator to inform people about the rights to appeal or review and to request gives members of the public the right co challenge administrative decisions in court on a number of grounds 18 ays down the procedures that must be followed by people seeking judicial review, ‘We saw that s 33 of the Constitution says that everyone has the right to just administrative awful means that action, PAJA gives effect co this right by setting out rules and guidelines to ensure that administrators must obey administrative action is lawful, reasonable and procedurally fair and that reasons are given the law and must be for administrative action. For example, people should be cold in advance what action is ___ authorised by the law for being planned and they must be allowed to tell theit side of the story, Decisions should ‘the decisions they make. notbe taken tha have a negative eect on people without consulting them fst. To ensure faimess, the AJA sets out procedures thar you must follow before you make decisions Prepreentddhaietar To understand how PAJA works itis necesary to understand whar administrative ——_justiable, action is. Section 1 of PAJA define tis expression and in short, administrative action is a decison. Tis includes a proposed decision and a failure to take a decision. An administrative decision must be tken without unreasonable delay or within th time peiod that may be presribed forthe particular administrative action. 1 ofan administrative nature. Most decisions that administrators take as part of thei offical functions are ofan administrative nature. 276 Chapter 13 | Administrative law= ‘made under an empowering provision, This is usually specific law that authorises you to make decision, not specifically excluded by the Act. PAJA specifically excludes some decisions of administrators, such as executive or legislative decisions or decisions taken by a court. This means that PAJA does not apply to those decisions. impact on someone ~ giving someone a benefit might have a negative impact on the tights of someone else = thathas a ‘direct, external legal effec. This means that decisions must be final and have an impact on a person’ rights, ‘External usually means that the decision must affect the rights of someone outside the administration, However, sometimes a decision affecting the rights of people within the administration {qualifies as administrative action. An example is the following decision to discipline « public servant. Read the following newspaper article and then debate the questions set out on the next page. Minister must act to end foreign student visa ‘disaster’ Karen MacGregor 22 August 2015 International student officers are (0 call For ‘urgent ministerial intervention to end prob- Jems with visas for hundreds of foreign stu- dents in South Affica, due 0 government incompetence. Students who have tried to comply with visa rales have been criminalised and many arrested. Ina session on migration on Friday, angry international office staff spoke of having things ehrown at chem by frustrated inter- national students who shifted the blame for visa woes onto them, and of having to spend {great chunks of time eying to sort out visa problems caused by ‘chronic’ inepticade in << OESEREGEHOREATEIB. Promises of improved service and processing of visas that have been pending for months are repeatedly made ~ and repeatedly broken. Scale of the problem South Aficas higher education sector is expe- riencing a sharp drop in international student numbers, said Orla Quinlan, one of the ses- sion presenters and director of the interna- sional office at Rhodes University “We have feedback from one university that international student numbers have dropped by 600 this year due to these issues. ‘At another, rural-based university there has been a decline of 2596 in international scu- dent numbers. Visiting scholars, postdocs, international staff and university guests are also affected.” ‘There were 226 students in the 10 universi- ties with some peo- ple had blamed the international offices for not being able to unstick visas, but in realty the problems were entirely out of theie hands, “We can shout and lobby and have meet- ings, as we have done with the Department of Home Affairs. But unless somebody gets seri- cous about this issue inside Home Affairs, iis out of our hands” Personal suffering in issuing visas regularly resale in students enrolled for degrees being unable to return in time to continue their studies, legal students being rendered illegal, students Chapter 13 | Administrative law 277rete) tunable «0 leave the country without being declared undesirable, and lack of freedom of ‘movement within the country. Other problems include lack of under- standing of new visa regulations among staff in South African embassies around the world, and no consistency of staff handling visa que- ries. There is also no system regarding han- dling the backlog of visas, and lack of comma nication regarding visa issues. Students with visa problems “are very restricted and fel very insecure”, said Quinlan. Some international students were missing out on opportunities, bing offered jobs on complesing their studies ‘but unable to accept them because they are living in a no-visa ‘twilight zone. ‘Threat to internationalisation ‘The combined effect of the visa. problems posed a ‘serious threat to the internationalisa- cman tion of higher education, said Quinlan, “Also alot of people are experiencing this as intentional and itis feeding into the idea of South Africa being xenophobic. There is no level at which this is helping South Africa or the higher education system.” Comelius Hagenmeir, a law lecturer and dlicector of international relations at the U versity of Venda, described fertile grounds for legal challenges to the visa mess ~ 0 be found in South Africa’ progressive constitution, in laws and in numerous international conven- tions. However, IEASA had concerns that such action could rebound and clog up the visa processing system further, Instead, the decision had been made to continue working with Home Afaits co resolve problems and to call for ministerial incervention and the support of vie-chancel- lors to resolve the visti tp lvawynuniversitywerldnews.comfarticle,php?story=201508211 74658622 1. Has something similar happened to you before? 2. Do you think this problem forms part of administrative law? Why do you say this? 3. How do you think the students can challenge this visa problem? ‘The right to challenge the decision of administrators in court is called judicial review. It is a way in which the right to administrative action can be enforced. Any member of the public who is tunhappy with the decision of an administrator can challenge the decision in court. Ifthe court finds that the decision is unlawful, unreasonable number of possible orders to rectify the situation. or procedurally unfair it can make any of a PAJA therefore helps ensure that the government is democratic, accountable, open and transparent. 278 Chapter 13 | Administrative lawWhat do you think? imagine that you go to the Department of Home Affairs to apply for your fist passport. You fill out the forms correctly, pay the necessary fees and await the notice to come and collect your passport. The notice never arrives in the mail and when you go back to the Department of Home Affairs to find out the reason for the delay, you are told that your application for a passport was unsuccessful. When you ask. why, they refuse to give you reasons and tell you to come back later. Does this sound familiar? Have you ver applied for anything from the government? Were you provided with reasons for the refusal of any of your applications? Were you given a chance to have your side ofthe story heard? And were you told that you could challenge this decision if you think that itis wrong? Talk to yout friends and see whether this hhas ever happened to them and discuss what you can do in future if you feel that an administrator does not follow fair procedures when making decisions. Chapter summary In this chapter, we learned the following about administrative law: 8 Administrative law isthe branch of law that sets out all the rules and principles that must be followed by he public administration. & Administrative law governs the public administration. in South Africa. It can be divided into general administrative law and particular administrative law, General administrative law sets out the general rules and principles that must be followed by the administration, Particular administrative law governs a specific area ofthe administration, The main sources of administrative law are legislation, judicial precedent and the common law. Review your understanding “The Consticution guarantees the right to just administrative action to all in South Africa. Everyone has the right to fair and reasonable administrative action and to be given reasons for those actions. AJA provides the detail on how this right works in practice. People can expect to be told in advance of any planned action that may affect their rights, be allowed to have their side of the story considered before a decision is made, be told what the decision is and of their right to internal appeal or review, be told chat they have the right to request reasons, and be able to challenge the decision in court. 1, Your application for a work permit has been refused by the Department of Home Affairs, How can PAJA assist you with your problem? 2. Whatis the difference between the administration and an administrator? 3. Explain che difference between the Passports Acc and the Bill of Rights as sources of administrative lave You feel that che rejection of your grandmothers application for an old-age pension was totally ‘unreasonable, What sources of law will the court look at co determine whether the decision was in fact unreasonable or not? Why do we need a right to administrative justice? ‘When the Traffic Department decides whether or not to grant you a driver’ licence, does that amount toa decision taken by the administration? Chapter 13 | Chapter summary 2796. Could a failure to cake a decision amount to administrative action that one could challenge? 7. Consider and discuss the importance of s 33 of the Constitution for administrative law. Further reading 8. What tools are available for making the public administration accountable to the people? ‘Bums, ¥. 2013. Administrative Law: 4th edn. Durban: LexisNexis South Aftica (A very useful books ie serves mainly asa students text and is ‘writen with a view to making complex subjects accessible co the reader) Hoexter, C. 2012. Adminitmaive Law in South Affcs. 2nd edn. (Cape Town: jut and Co. (Pry) Lic {Also a very useful book, it serves mainly asa more advanced studen rere an for purposes of advanced reading and research) 280 Chapter 13 | Further reading Quinos, G. (ed) 2015. Administrative Juice in South Africa ‘An Introduction. Cape Town: Oxford Univessiry Press Southern Africa Department of Jutice and Constiutional Development, nap sewn justioe.gowzal pal new: hem. (You will ind valuable information on recent developments and legislation on this website, including PAJA newsletters and booldets, information sheets and applicable forms)