1. PBR 324

2.  ILZE FOURIE  LLC (CML)

3. GENERAL PRINCIPLES (p 9 – 15) Question 1: Define ADR’ve law (3) It forms part of public law. (1) It regulates the organisation, powers and actions of the state administration (e.g. the relationship between parliament and the executive). (1) It also regulates the structure and powers of bodies which do not qualify as authoritative bodies (e.g. jockey clubs and church organisations). (1)

4. CONSTITUTION IMPORTANT SECTIONS: SEC 2 Supremacy of Constitution This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled. SEC 7 Rights (1) This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom. (2) The state must respect, protect, promote and fulfil the rights in the Bill of Rights. (3) The rights in the Bill of Rights are subject to the limitations contained or referred to in section 36, or elsewhere in the Bill.

5. SEC 8 Application (1)The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state. SEC 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.

6. SEC 34 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 public hearing before a court or, where appropriate, another independent and impartial tribunal or forum. SEC 85 P 41 TEXTBOOK 85 Executive authority of the Republic (1) The executive authority of the Republic is vested in the President. (2) The President exercises the executive authority, together with the other members of the Cabinet, by- (a)implementing national legislation except where the Constitution or an Act of Parliament provides otherwise; (b)developing and implementing national policy; (c)co-ordinating the functions of state departments and administrations; (d)preparing and initiating legislation; and (e)performing any other executive function provided for in the Constitution or in national legislation.

7. SEC 239 239 Definitions In the Constitution, unless the context indicates otherwise- '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;

8. Question 2: Explain the distinction between private law and public law. What is the basis of this distinction?(6) private law governs relations on a basis of equality (or a voluntary basis), while public law (constitutional law and ADR’ve law) governs relations between Govt bodies inter se and Govt bodies and individual subjects on a basis of inequality. (1) This relationship of inequality is the result of the presence of authoritative power (“owerheidsgesag”) which the state exercises over the individual. (1) [unequal relationships based on authority are also found in private law, e.g. parent and child, guardian and pupil and between members and the management of voluntary associations] The unequal relationships of private law differ from the unequal relationship of public law in material respects: - the parties to the private law relationship are all private persons and not Govt bodies (1); - the private law relationship is not directed at the public interest but at individual interests (1); - and the legal subject’s subordinate (inferior) position is the result of, for example, his or her lack of maturity in the eyes of the law. (1) - voluntary associations is similar to the authoritative relationship of public law and it is for this reason that the rules of ADR’ve law find appli­cation. (1) John Wilkinson and Partners (Pty) Ltd v Berea Nursing Home (Ply) Ltd illus­trates the distinction between public and private law.

9. John Wilkinson and Partners (Pty) Ltd v Berea Nursing Home (Ply) Ltd Traditional Difference between Private & Public Law PRIVATE LAW PUBLIC LAW

10. Question 3: Define Govt authority (3) sum total of all the powers conferred by law on the state and its organs which enables a Govt organ to enter into a legal relationship with other legal subjects and which place it in a position to enforce its rulings, to add to or vary the content of an existing legal relationship, or to suspend or terminate an existing legal relationship. (2) The ability of the authoritative body unilaterally to en­force action within the unequal relationship of authority is the clearest manifestation of Govt authority. (1)

11. Question 4: Explain the concept “state administration” (6) The-concept “state administration” determines the field of application of ADR law. (1) Generally It is mostly used as an informal reference to the executive Govt as a whole, or as a reference to the executive branch of Govt, excluding the cabinet. (1) is that branch of the state authority (Govt bodies or organs) which by its creation and powers traditionally falls within the executive authority of the state. (2) The executive comprises all the organs of Govt whose main function is not of a judicial or legislative nature. (1)

12. Question 5:To what extent has the introduction of a democratic Constitution in 1994 influenced ADR’ve law? (7) most NB - sovereignty of parliament - replaced by the supremacy of the Constitution. (sec 2) In the past, courts prevented from pronouncing on the validity of parliamentary legislation: can now be done under the new dispensation. (1) The Constitution also provides that all law (not only legislation, but the common law, indigenous (traditional)law and all action (ADR’ve action) which is in conflict with the Constitution, is invalid. (1) Since the purpose of the Constitution is to establish the democratic values of freedom, equality and human dignity - these values are contained in the bill of rights (chapter 2 of the Constitution), the courts will test the legislation (in terms of which the action was performed) and of course, the action itself, against the bill of rights in all ADR’ve cases. (2) As a result, the exercise of authoritative power in the new constitutional dispensation is subject to greater control by the courts: a fact which makes ADR’ve law of great importance to the administration of justice in the country. (1) NB : since the 1996 Const - ADR’ve justice is entrenched as a fundamental right in section 33 of the bill of rights

13. Question 6:To what extent does that fact that our Constitution includes a bill of rights influence the application of ADR’ve law in practice? (4) purpose of a bill of rights - to limit/control the exercise of authoritative power. (1) individual rights are often infringed during the course of exercise of power by the executive organs of state. Under previous dispensation - prejudiced person had to prove RIGHTS (common, statutory or other) & INFRINGEMENT (1) these rights have now been codified in the bill of rights. The plaintiff need thus merely prove that one of his rights contained in the bill of rights has been infringed. (1) Under the previous system of parliamentary sovereignty - often imposed serious limitations on rights of the individual, and in some cases rights were totally abolished. The fact that these rights have now been entrenched in the bill of rights and that the Constitution is supreme, means that parliament can no longer infringe upon these rights, except insofar as the limitation clause s 36 permits. (1)

14. Question 7:It is said that ADR’ve law operates most effectively in a state in which constitutionalism prevails. Mention the characteristics of such a state. (½ x 6 = 3) the separation of powers; enforceable guarantees for individual rights; the supremacy of the constitution, the principle of legality, access to independent courts, multi-party democracy. (see the constitution)

15. Question 8 : What does the term “organ of state” mean? In your answer you should refer to the definition in s 239 of the 1996 Constitution, the two recent decisions of Baloro v University Bophuthatswana (wide interpretation) and Directory Advertising Cost Cutters v Minister for Posts, Telecommunications and Broadcasting, (narrower interpretation) and Burns (p93 – 99)

16. 1. SECTION 239 OF THE CONSTITUTION Department of State or administration in the national, provincial or local sphere of government Any other functionary or public institution Exercising a power or performing a function ito the Constitution or provincial constitution Exercising a public power or performing a public function ito any legislation But NOT a court or a judicial officer

17. Department of State or administration in the national, provincial or local sphere of government Administration forms part of the executive authority This excludes courts, the cabinet and judicial officers Where the responsibility of the President, and other members of the executive relate to the application of legislation, their acts are deemed to be administrative action

18. Any other functionary or public institution Organ of State includes NATURAL PERSONS & LEGAL ENTITIES When they exercise a Public power or function ito empowering provision The function must be empowered by the constitution, provincial constitution or legislation Ex> Where a private institution exercises a public function

19.  FUNCTIONARIES AND INSTITUTIONS  A Functionary / institution qualifies as an Organ of State when it exercises a public power ito the Constitution / provincial constitution  OR when they exercise a public power or perform a public function ito any legislation  EX:  ESKOM, SABC, TELKOM  Private Company that removes waste for the Municipality

20. p 93 Textbook  Does the body or organ derive its powers from legislation?  Does the body or organ form part of a state department?  Does the body or organ perform public duties or functions?  Does the body or organ have the power to exercise these public duties and functions ?  Is the body the bearer of authoritive power?

21. Department of State or administration in the national, provincial or local sphere of government  NATIONAL SPHERE  Departement of Agriculture, Educations exc.  Ministers as heads of these departments  President and deputy when they act in their administrative capacity example when they pardon offenders.

22.  PROVINCIAL SPHERE  Provincial Department involved in:  Provincial planning  Provincial sport  Provincial cultural matters

23. =  LOCAL GOVERNMENT SPHERE  Organs/ bodies involved in local government matters such as the regulation of municipal parks and recreational facilities or  Traffic and parking

24. Sec 8-Application The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state.” what about bodies that are established by statute, but managed & maintained by private initiative, eg universities or controlling organs of legal and medical professions, eg. Law Society or SA Med & Dental Council?

25. As a rule = qualify as organs of state (fulfill public functions & depend on infrastructural support form the state) what about private bodies, not established under statute, but performs some of their basic functions under control/supervision of Organs of State? Private old age homes & private schools receiving subsidies from state ? probably also organs of state for purpose of s8 (1) but eg private companies, established ito Companies Act, which do not perform public function or exercixe public power, are not bound by Bill of Rights ito s8.

26. TEST: (1) is the state in control thereof ? (control test) (narrow test) (p97) Dir Advertising Cost Cutters v Min Post & Telecom 1996 3 SA 800 T Goodman Bros (Pty) Ltd v Transnet 1998 BCLR 1024 w 1030

27. (2) Public Power Test (p99) Inkatha Freedom Party v Truth & Reconciliation Commission Includes institutions or Functionaries which exercise public power.

28. (3) Broad Test p99 Baloro v University of Bophuthatswana Decided under the 1993 Constitution Question whether a body or functionary is an organ of State will depend largely on Extent to which such a body / functionary is integrated into structures of state authority

29. (4) Common law At common law the following questions are asked to determine whether a body or institution is an organ of state: Does the body or organ - -derive its powers from legislation? (1) -form part of a state department eg Dept of Educ or Finance? (1) -perform public duties and functions? (1) -have the power to exercise these public duties and functions’ (1)

30. The President, as head of the national executive = organ of state when he performs ‘ADR’ve functions. (1) Premier of a province, as head of the executive authority of the province = organ of state. (1) It is NB to determine whether a person, body, organisation or institution is an organ of state because the bill of rights, which applies to all law, binds the legislature, the executive, the judiciary and all organs of state. (1) This means that all organs of state must protect, promote and fulfill the rights protected by the Bill of Rights, including the right to ADR’ve justice. (1) principles of ADR’ve law thus apply to all ADR’ve actions performed by organs of state in the exercise of their authoritative power. (1)

31. Question 10: (READ)In Van Huyssteen v Minister of Environmental Affairs and Tourism, FACTS: ISCOR wished to erect a steel mill near the Langebaan Lagoon. do so, the land had to be rezoned by the provincial administration of the Western Cape. As the steel mill would be close to a very sensitive nature reserve, an environmental impact assessment was required; in addition, a board appointed by the national Department of Environmental Affairs had to investigate the impact of the proposed mill. The environmental impact assessment was done by the CSIR. Amidst great public resistance and before the completion of the investigation by the board appointed by the Department of Environmental Affairs, the Western Cape Administration approved the rezoning. Mr Van Huyssteen, who owns land in the proxim­ity of the Langebaan Lagoon, is one of the objectors.

32. Answer the following questions: (a)How many organs of state are involved in this case? Substantiate your answer.(6) (b)Does the rezoning by the Western Cape Administration constitute “ADR’ve action”?(3) (c)Does the investigation by the board appointed by the Dept of Environmental Affairs, constitute ADR’ve action? (3) (d)Does Mr Van Huyssteen’s action against the Western Cape Administration constitute ADR’ve action? (2)

33. TO DO FOR NEXT WEEK: 1.Answer questions a) to d) about the Van Huyssteen case 2.Prepare unit 1.3 of study guide 3.Questions 11 – 20 of the workbook