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.√)
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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.)

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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 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))

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.√

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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.

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.

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)

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

Defence in criminal proceedings

- 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√.

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TOTAL: {100}