Public Law

Administrative Law Define administration Discuss administrative law under the previous and new constitutional dispensations Distinguish between the different sources of administrative law Discuss public administration Discuss lawful, reasonable and procedurally fair administration action Explain administrative justice in the constitutional sphere Understand state liability

What is Administrative Law? Administrative law is defined as the body of law developed to control and administer agency’s powers, limitations and procedures. Administrative law is that section of public law which governs the organization, powers and actions of the state administration (Wiechers)

What is excluded from Administrative Law? Powers and functions of the national, provincial and local executive. Legislative functions of parliament, provincial legislatures and municipal councils Judicial functions of a judicial officer of a court Decisions under the Promotion of Access to Information Act 2 of 2000

So what exactly is it? Administrative law forms part of public law in that the relationship between public administration and the individual is based on state authority or the exercise of public power The execution and performance of the functions and the duties of public administration are governed by the principles of administrative law

Administrative Law pre & post 1994 Old Regime New Regime Common law remedies Approach the administration or judicial review Constitutional right to just administrative action Judicial review

Sources of Administrative Law The Constitution Original & Delegated Legislation Prerogative Powers Common Law African Customary Law Estoppel International Law Foreign Law

Constitution Most significant source of administrative law SA has a system of constitutional sovereignty Section 2 – any law inconsistent with the Constitution is invalid

Original & Delegated Legislation Legislation is easy to enact, amend & repeal Readily accessible & knowable Almost all administrative power has a legislative source

Prerogative Powers Was a source inherited from English law where certain powers vest in the Crown Most important prerogatives in SA are power to issue passports, conclude State contracts & appoint Commissions of Enquiry No longer common law prerogative powers in SA Section 84(1) of Constitution gives President powers necessary to perform functions

Common Law Generally administrative law influenced by Roman-Dutch and English common law Common law presumptions no longer of significant value as mostly codified in the Constitution and other legislation

African Customary Law Can custom create administrative authority? Prevailing opinion is that officials may not acquire power by usage as this is contrary to the principle of constitutional legality

Estoppel Balancing of public and private interests through estoppel If citizen relies on representation of an official which turns out to be false the citizen may be prejudiced unless official is held to their representation

International Law There are a number of international conventions dealing in human rights UN Charter Universal Declaration of Human Rights Etc …

Foreign Law Section 39(1) of Constitution allows courts to consider foreign law Opens way for influence of foreign jurisprudence on human rights

What is “the Administration”? Includes the administration of any sphere of government Organs of State Public Enterprises Is generally understood to mean government departments, officials, administrators, institutions and functionaries involved in the day to day running of the state

Fair administrative action Section 33 of the Constitution – gives right to administrative action that is lawful, reasonable and procedurally fair Lawfulness – must be duly authorised by law & any statutory conditions complied with Section 1 of the Constitution – supremacy of the Constitution & rule of law – therefore exercise of public power or function that does not constitute an administrative power is still reviewable

Principle of Legality Exercise of all public powers must be authorised by law & exercised in accordance with that law Must not be arbitrary or irrational Decision maker must act in good faith & not misconstrue powers

Reasonableness Reasonable administrative action is rational & proportional Rationality Decision must be supported by the evidence & information before the administrator Proportionality Balance, necessity & suitability Appropriate to circumstances

Procedural Fairness Section 33(1) Fair hearing Impartial decision maker Is justice seen to be done?

State Liability Sate Liability Act of 1957 The State is liable for unlawful administrative action & for breach of contract Compensation payable by State to persons suffering loss or damage due to unlawful administrative action or breach of contract