Public Law Administrative Law Define administration Discuss administrative

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 • Common law remedies • Approach the administration or judicial review New Regime • 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 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