June 2018 Administrative Law Main Exam

Instructions:

You will receive a complete version of the PAJA as an annexure to this paper. Ensure that you
have one before you start writing.

You will be expected to refer to relevant authority throughout the paper even if the question
does not expressly state this.

In Part A, you must answer Question 1. In Part B, you must choose to answer one question –
either Question 2 or Question 3 or Question 4. In Part C, you must choose to answer one
question – either Question 5 or Question 6.

Question 1 is worth 10 marks. All other questions are worth 20 marks each. There are 50
marks for the exam.

Part A: Compulsory Question

Question 1: The Owl Rescue Association (OwlRA) of Johannesburg is an organization that has
provided owl boxes in trees in the leafy suburbs of Johannesburg such as Parkview and
Greenside for the past 20 years. The owl boxes are intended to help conserve and protect
Johannesburg’s owl population; they are placed at least 4 meters high in trees and provide a
space for owls to nest and raise their young. The owl boxes cost R1000 each and most of this
price is paid directly by the homeowner. However, the City of Johannesburg out of its
discretionary “we are world class and green” budget line has long subsidized these boxes for
R200/box for 19 of the past 20 years (years 2 to 20).

In 2018, the Owl Rescue Association has innovated to make owl boxes much cheaper, for R300.
This makes the owl boxes financially accessible to residents of Kathlehong, where the
Association has noted a number of trees suitable for owls. OwlRA thus decides to and does
embark on a massive roll-out and employs 20 persons to blanket Kathlehong and surrounding
townships with owl boxes (where desired). The Kathlehong residents respond enthusiastically
and line up to purchase owl boxes for only R100 (after the R200 subsidy).

After this roll-out has proceeded for a month, however, the City summarily decides to cancel
the subsidy. This cancellation places the OwlRA in an unfortunate situation, both with respect
to its employees and the roll-out. The Chair of the OwlRA approaches you for advice. Can the
OwlRA successfully approach a court for an order directing the City to continue to pay the
subsidy? (10 marks)

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Part B: Choose one and only one of the following three questions

Question 2: Describe and critically discuss how the courts have resolved the tension in the
drafting of PAJA between s 1 and s 3(1). (20 marks)

Question 3: In Minister of Defence and Military Veterans v Motau Kampepe J said the
following: ‘Does the Minister’s statement amount to administrative or executive action?
Answering this question is important. If it amounts to administrative action, it is subject to a
higher level of scrutiny in terms of PAJA. If it is executive action, it is subject to the less exacting
constraints of the principle of legality.’ Critically discuss this statement in the light of evolving
case law. (20 marks)

Question 4: Evaluate the contribution of Bato Star Fishing (Pty) Ltd v Minister of Environmental
Affairs to the area of reasonableness in South African administrative law. In addition to a
discussion of the relevant law, your answer should include a brief overview of the facts.” (20
marks)

Part C: Choose one and only one of the following two questions

Question 5: Your client, Mr. X is a student leader who has been convicted on a charge of public
violence and is serving a short prison sentence at ‘Sun City’ Johannesburg Prison. On his arrival,
he is taken to the office of the Head of the Prison, Commissioner Naidoo and told:’ You think
you too clever because you studying law. Well. This is not Wits University. This is ‘Sun City.’ I
don’t like you and your politics. Here, I am the boss and I am not going to allow you to influence
other prisoners and cause mayhem. So you will be isolated from other prisoners for the
duration of your sentence and while you are here, you will not be allowed to receive reading
materials from the outside to prepare for your exams .You can continue with your nonsense
when you have left here.’ Mr. X is handed a letter informing him in a one line sentence that
these decisions are being made in terms of the powers of the Commissioner set out inter alia in
section 4 and section 7 of the Correctional Services Act 111 of 1998 (‘The Act’).

The Act governs the management of Prisons, confers certain powers on the
Commissioner, and sets out certain rights of prisoners. The relevant provisions include section 2
(b) which defines the purposes of the Act as being the ‘detention of Prisoners whilst ensuring
their human dignity’ and promotion of the ‘human development of prisoners subject to
community corrections.’ Section 4 empowers the Commissioner to ‘impose conditions to
ensure safe custody by maintaining security and good order’ and section 7 empowers the
Commissioner to segregate male and female prisoners, adults and children, and prisoners who
pose a security threat. Section 45 of the Act sets out certain rights of Prisoners, which includes
the right to ‘receive adequate health care and nutrition.’

Assume that the decisions of the Commissioner amount to administrative action. Briefly
advise your client regarding the reasons provided (4 marks). Fully advise your client on the
possible grounds of review that are available in terms of PAJA to challenge the Commissioner’s

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decision to isolate your client from other prisoners and the Commissioner’s decision to deprive
him of access to reading materials from outside the prison. [16 marks]

Question 6: GoGo Developers (GoGoDev) is a listed construction company with shareholders

largely drawn from the retired persons over 65, many of whom did not made adequate
provision for their financial retirement in their youth and are now hoping to make up for lost
time. GoGoDev commences a particular shopping mall development, NewShopNow, which
requires environmental authorization in terms of the National Environmental Management Act
107 of 1998 (NEMA). Prior to starting the development, GoGoDev fails to obtain the requisite
authorization.

In terms of NEMA, no person may commence an activity (which requires an authorization)

unless the competent authority has granted an environmental authorization for that activity.
Failure to comply with this provision is an offence in terms of the Act. However, in terms of s
24 G of NEMA, a person who has commenced an activity without the necessary authorization
may apply to the Minister for an authorization ex post facto (after the fact). Before granting
this authorization, the Minister must consider a report compiled by the applicant setting out
various items of prescribed information and, in addition, the applicant is obliged to pay an
administrative fine not exceeding R5 million before the authorization can be issued. The
Minister has set up a committee of 10 persons (5 of whom are over the age of 65) to
recommend to her whether or not to accept the required report.

GoGoDev applies for authorization in terms of s 24 G of NEMA. They submit the relevant
report. On the basis of the report, the committee recommends to the Minister that the
authorization be issued and that a fine of R500 000 be paid. The Minister does not look at the
report but immediately decides to grant the authorization on the basis of the recommendation
of the committee. She makes this decision on 1 June 2018. On 2 June 2018, GoGoDev then
submits a post-dated cheque for the amount of R500 000. The cheque is dated for 9 June
2018. Two weeks after the decision, on 15 June 2018, the cheque is honoured when it is
presented to the bank for payment.

DropShop is an NGO concerned about the spread of materialist and bling culture amongst
today’s youth. They are funded primarily by voluntary contributions from retired persons who
have provided adequately for their retirement. They decide to challenge the grant of the
authorization to the NewShopNow. Assuming that the authorization is administrative action,
advise DropShop on the most likely grounds of review. In your answer, also advise DropShop
on the most likely remedy in this situation, should one of their grounds of review be successful.
(20 marks)