2012/09/03 P197 – 213 textbook P study guide

CONSTITUTIONAL FRAMEWORK FOR THE CONTEXT OF JUST ADMINISTRATIVE ACTION To understand concept “Just administrative action”, it is important to know how it functions within the Constitution and where it falls within the constitution.

Administrative acts will only be valid to extent they conform to all requirements set by law 96 Constitution is basic source that determines lawfulness of administrative action. Prior to Constitution used: Common law, statutes and court judgments To determine lawfulness of administrative action. Both the constitution and the other sources listed above are applicable when determining the lawfulness of administrative action.

MOST IMPORTANT SECTIONS OF THE CONSTITUTION: -SECTION 2 The Constitution is supreme law. Any law / conduct inconsistent with it = invalid. Obligations imposed by it on administrative bodies must be fulfilled.

SECTION 7 BoR enshrines rights of all people in our country. BoR affirms democratic values of human dignity, equality freedom. State must respect,protect,promote and fulfil rights in BoR Rights in BoR are subject to limitations in sec 36 or elsewhere in the bill.

-SECTION 8 BoR applies to ALL law and binds Legislature, executive, judiciary and organs of state. Binds natural and juristic persons.

SECTION 32 States that every person has the right of access to any information held by the state and any information that is held by another person that is required for exercise or protection of any rights. National Legislation had to be enacted to give effect to the above = Promotion of Access to Information Act 2/2000 = gives effect to to Constitutional right to access to information. Right to information is of particular importance to judicial review of adm’ve action. Person who alleges that his/her right has been infringed by adm’ve action may call on the body concered to supply the information needed. Important development – right to information will encompass adm’ve policy decisions, an area that was generally exempt from public scrutiny in the past.

Sec 32 does NOT provide for access to all adm’ve bodies or agencies. Provision of information is limited to information that the individual requires for the exercise or protection of his/her rights.

SECTION 33: Everyone has the right to adm’ve action that is lawful, reasonable and procedurally fair. Everyone whose rights have been adversely affected by adm’ve action has the right to written reasons. National legislation must be enacted to give effect to: -Provide for review by court - Where appropriate, an independent and impartial tribunal - Impose a duty on the state to give effect to the rights enumerated above, - Promote efficient administration.

The concept of adm’ve justice as stated in sec 33 plays a huge role to ensure that the administration applies the basic principles of justice in the exercise of their duties. It sets the scene for the exercise of adm’ve power by defining the limits within which the administration must operate. Sec 33 must be interpreted in the spirit of the constitution, the promotion of the underlying values and the promotion of an open democratic society. Sec 33 states that every person is entitled to lawful adm’ve action. This section includes all persons – aliens also.

34 ACCESS TO COURTS Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court, or other independant or impartial tribunal.

-SECTION 39 When a court of law, tribunal, or forum interprets the BoR, it MUST promote the values that underline an open and democratic society. When interpreting any legislation and when developing the common law or customary law, every court, tribunal, or forum must promote the spirit, purport, and objects of the BoR.

-SECTION 195 Public administaration must be governed by the democratic values and priciples enshrined in the constitution. These principles include Provision of services on an impartial, fair and equitable basis without bias the accountability of public administration. transparency management of practices based on ability, objectivity, fairness and the need to redress imbalances of the past These principles apply to administration in every sphere of government, organs of state and public enterprises.

SECTION 239- 'organ of state' means- (a)any department of state or administration in the national, provincial or local sphere of government; or (b)any other functionary or institution- (i)exercising a power or performing a function 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, but does not include a court or a judicial officer;

OUSTER CLAUSES SEC 34 (Right to acess to courts):Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court, or other independant or impartial tribunal. Sice sec 9 (right to equality before the law and to equal protection of the law), and sec 35(3) make provision for a right of access to court, it may be asked why it was necessary to include sec 34 of constitution. It is argued that the significance of this sec is situated in the fact that it effectively curtails the legislative power to promulgate ouster clauses, since legislative exclusion of juridical review will no longer be possible. As such this sec is of major importance to the protection of the individual rights in Chapter 2 of the Constitution.

OUSTER CLAUSES In the Previous dispensation Parliament could exclude judicial review of adm’ve actions by using ousting clauses. This happened daily. Example: Individuals were arrested without trial en their rights to freedom, integrity ea, where infringed upon. Thus the requirement of lawfulness ( as well as the right to acces to courts) prohibit the exclusion of judicial review and can only be limited by sec 36 of the constitution.

“Parastatals” and “fringe organisations” A fundamental question is whether sec 33 applies to organs as government departments only, or also parastatals and fringe organisations. Wiechers suggests that 4 tests can be used to determine whether an organisation is an adm’ve body of not: -Whether the body has been instituted by statute; -Whether it has become part of an established adm’ve hierarchy; -Whether it performs public duties and functions; -Whether the body in question is the bearer of authority. According to Baxter public enterprises or “fringe organizations”, “parastatals”, en “quangos” are also governed by adm’ve law. Byvoorbeeld: Transnet, SABC, Law Societies

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