Public law BPA – Year 2

Public VS private law Public Law Private Law Relationship between the State & its subjects or between different Depts. Of State Generally a relationship of inequality Based on State authority Vertical relationships Relationship between individual subjects Generally a relationship of equality Based on agreement / consensus Horizontal relationships

Constitution of the republic of south Africa of 1996 A modern, well drafted constitution Is the source of all Public Law in SA The Constitution is the supreme law of South Africa and any law inconsistent with it is invalid (section 2)

The promotion of administrative justice act 3 of 2000 Allows for judicial review of administrative action Is there to give effect to Constitutional duty on State to act justly in relation to its subjects Promotes efficient administration & good governance Fosters accountability, openness & transparency Problem area is exactly what constitutes administrative action

Examples of administrative action Issuing of licenses Awarding of tenders Requiring payment of taxes under dispute Withdrawal of bursary from a State school Leasing of waterfront property in a harbour

Constitutional & administrative law as part of public law Discussion Constitutional law and administrative law form part of public law; and both deal with the regulation of the division and exercise of state authority Administrative law deals with the issues faced by the Public Administration in carrying out the duties imposed by legislation Constitutional law deals with the relationship between the organs of State

Assignment – question 1 The Public Protector www.pprotect.org See sections 182 & 183 of the Constitution

Question 2 Promotion of Administrative Justice Act 3 of 2000 Section 6 (1) Any person may institute proceedings in a court or a tribunal for the judicial review of an administrative action. Read pages 11-12 of Study Guide Previously – judicial review – common law

Bato star fishing case The courts should not take over the functions of administrative agencies Courts must recognise the proper role of the executive in the Constitution The courts task is to ensure that administrative decisions fall within the bounds of reasonableness as required by the Constitution Parties seeking relief must rely on the PAJA and not the common law As per O’Regan J in Bato Star Fishing (Pty) Ltd v The Minister of Environmental Affairs & Tourism & Others 2004 SA 490 (CC)

Question 3 Ultra Vires – pre 1994 Johannesburg Consolidated Investment Company v Johannesburg Town Council 1903 TS 111 Common law power to review the administrative application of legislation & set aside anything outside of the powers granted to them

Question 3 Section 33  Just administrative action.—(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 impartial tribunal; (b) impose a duty on the state to give effect to the rights in subsections (1) and (2); and (c) promote an efficient administration. Section 6 of PAJA 6.   Judicial review of administrative action.—(1)  Any person may institute proceedings in a court or a tribunal for the judicial review of an administrative action.