PBL 310 NOTES:

Lecture 1: Introduction to Administrative Law

Learning Objectives:

 Identify the Administrative Law Team and course structure.

 Identify required course materials.

 Demonstrate a foundational understanding of Administrative Law, its purpose, and

constitutional basis.

1. Understanding Administrative Law

 Definition: Administrative law is a branch of public law that governs the government's role and
its relationship with citizens. It specifically concerns administrative action taken by the
government and the effective use of administrative power.

 Core Concerns:

o Promoting administrative justice.

o Protecting individuals and organizations from the misuse or abuse of power by public
administration.

o Ensuring administrative action is lawful, reasonable, and procedurally fair.

o Preserving a balance of fairness between public authorities and citizens.

2. The Purpose of Administrative Law

 To regulate the conduct of the "public administration".

 To ensure public administration is empowered in a way that respects, protects, and fulfills the
right to just administrative action.

 To further the goal of social justice, ensuring people are treated with dignity, benefits and
burdens are distributed fairly (substantive justice), and participation opportunities are provided
(procedural justice).

3. The Two Sides of Administrative Power

 Empowerment: Legislation that authorizes administrative power to provide social goods and
services justly.

 Accountability: Regulations that place limits on how public administration exercises its powers.

4. The Constitutional Framework: Section 33

 Section 33(1): Grants everyone the right to administrative action that is lawful, reasonable, and
procedurally fair.
  Section 33(2): Grants the right to written reasons to those whose rights are adversely affected.

 Section 33(3): Mandates national legislation (enacted as PAJA) to give effect to these rights and
provide for judicial review.

Lecture 2: Sources of Administrative Law & Power

Learning Objectives:

 Identify the sources of administrative law and administrative power.

 Explain the interaction between these sources.

 Understand judicial review pathways and the principle of subsidiarity.

1. Sources of Administrative Law

Administrative law is drawn from four primary sources:

 The Constitution: Specifically Section 33 (just administrative action), Section 1(c) (Rule of Law
and supremacy of the Constitution), and other sections like s195 and s217.

 Legislation: Includes the Promotion of Administrative Justice Act (PAJA) and various
"empowering" Acts and regulations (e.g., the Identification Act 1997).

 Common Law: Judge-made principles of natural justice, such as the right to a fair hearing (audi
alteram partem) and the rule against bias (nemo iudex in causa sua).

 Case Law: Court decisions that clarify, interpret, and shape how empowering Acts are applied.

2. Sources of Administrative Power: Empowering vs. Constraining

 Empowering Sources: The specific provision in an Act or Regulation that grants an individual or
institution the authority to perform a public power (e.g., Section 7(1) of the Identification Act).

 Constraining Sources: Laws that limit and regulate the granted power, including the
Constitution, PAJA, and Common Law.

 Interaction: During judicial review, courts examine both sources to determine if an

administrator acted within their allowed authority and followed proper regulations.

3. Judicial Review Pathways

To determine how conduct is reviewed, one must follow a specific pathway:

 Is it an exercise of public power?

 Is it an "administrative action"?

o If YES: The conduct is reviewed under PAJA (giving effect to s33 of the Constitution).

o If NO: The conduct is reviewed under the principle of legality (constitutional review).
  Note: All administrative action is public power, but not all public power is administrative action.

4. Key Principles and Doctrines

 Principle of Subsidiarity: More specific legal rules must be applied before general ones (e.g.,
applying an applicable Act before bypassing it for a direct Constitutional provision).

 Functus Officio Doctrine: Once a final decision is made, the administrator cannot change it; only
a court can set aside an invalid decision.

 Self-Review: An organ of state can approach a court to review its own invalid decision based on
the principle of legality (rather than PAJA, which is for private persons).

Reflective exercise:

To advise Ms. Dlamini on whether the events in the reflective exercise constitute a "decision" under the
Promotion of Administrative Justice Act 3 of 2000 (PAJA), we must look at the definition of
"administrative action" and "decision" provided in the sources.

1. Definition of "Decision" under PAJA

Under Section 1 of PAJA, a "decision" is defined as any decision of an administrative nature made,
proposed to be made, or required to be made under an empowering provision. This includes making an
order, award, or determination; issuing a license or permit; or refusing to do any act or thing of an
administrative nature.

For a decision to qualify as administrative action (AA), it generally requires an element of finality and a
direct, external legal effect on the person concerned.

2. Analysis of the Three Events

 The Email ("unlikely to succeed"): This communication is likely not a "decision" under PAJA. It is
a preliminary assessment by an official rather than a final determination of Ms. Dlamini’s rights.
Because it is a statement of appearance ("appears incomplete") rather than a final refusal, it
lacks the necessary finality and does not yet have a direct, external legal effect.

 The Six-Month Silence: This constitutes a failure to take a decision. PAJA explicitly includes a
"failure to take a decision" within its scope of reviewable conduct. If the Department is under a
legal obligation to outcome an application made under environmental legislation, remaining
silent for six months qualifies as a failure to perform that duty.

 The HOD's Letter ("decided not to process"): This constitutes a "decision" under PAJA. Even
though the Department frames it as a refusal to "process," it is a final determination that Ms.
Dlamini’s application will not proceed. Under the definition in PAJA, a decision includes
"refusing to make" an award or "refusing to do any other act". This letter has a direct, external
legal effect because it stops Ms. Dlamini from obtaining her authorization and building her
guesthouse.

3. Legal Consequences of a Failure to Take a Decision

Ms. Dlamini has the right to just administrative action under Section 33 of the Constitution, which PAJA
is designed to protect. The legal consequences of the Department's failure to take a decision include:

 Judicial Review: Ms. Dlamini can approach a court to review the Department's failure to act.
Under PAJA, a court can grant a remedy for a failure to take a decision within a reasonable time.

 Mandamus (Order to Act): A primary remedy in this scenario would be for a court to compel the
Department to actually process and decide on the application.

 Reasonableness: The Department's delay of six months, followed by a refusal based on

"budgetary constraints," may be challenged on the grounds of unreasonableness or
irrationality, as administrators must act in a way that is lawful, reasonable, and procedurally
fair.

UNIT 2:

Comprehensive study notes for Unit 2: Meaning of Administrative Action have been compiled below,
structured according to the learning objectives outlined in the study guide.

Unit 2: The Meaning of Administrative Action

1. Define "Administrative Action" under PAJA

The Promotion of Administrative Justice Act 3 of 2000 (PAJA) defines administrative action (AA) in
Section 1. Because this definition is considered "unwieldy" and "cumbersome," the Constitutional Court
has identified seven essential elements that must be met for conduct to qualify as AA.

The Seven Elements of Administrative Action:

1. A decision or failure to take a decision: This includes making, suspending, or revoking orders,
licenses, or refusing to do so. A "failure" is relevant when the administrator has a legal
obligation to act.

2. Of an administrative nature: This refers to the daily conduct of the state bureaucracy in carrying
out daily functions and applying policy.

3. By an organ of state or a natural/juristic person: While primarily concerning state departments,

private entities can perform AA if they exercise public power.

4. Exercising a public power or performing a public function: The nature of the function—rather
than the institution—is decisive.

5. In terms of the Constitution, legislation, or an empowering provision: The action must be

authorized by a specific law or document.

6. That adversely affects the rights of any person: This is interpreted as the capacity to affect
legal rights, including those of "mere applicants".
 7. Which has a direct, external legal effect: This element requires a degree of finality; conduct
internal to the administration generally does not qualify.

2. Distinguish Administrative Action from Other Forms of Public Power

While all administrative action is an exercise of public power, not all exercises of public power
constitute administrative action. A functional approach is used to distinguish AA from other
governmental acts.

 Executive Power vs. AA: Pure executive or political policy decisions (e.g., appointing a
commission of inquiry or making foreign policy) are excluded from the definition of AA.

 Legislative Power vs. AA: The making of original legislation by Parliament or Provincial
Legislatures is not AA. However, the status of administrative rule-making (e.g., creating
regulations) is more complex and has been debated in cases like New Clicks.

 Judicial Power vs. AA: Decisions made by judicial officers in their judicial capacity are not
administrative actions.

 Specific PAJA Exclusions: The Act explicitly excludes certain actions, such as decisions to
prosecute, decisions under the Promotion of Access to Information Act (PAIA), and certain
Judicial Service Commission decisions.

3. Apply Legal Tests to Determine if Action Qualifies as AA

To determine if a specific act is AA, several legal tests and factors are applied:

The Motau Seven-Element Test: An action is AA only if it satisfies all seven elements listed in the first
section of these notes. If one element is missing—for example, if the decision has no "external effect"—
it is not AA and must be reviewed under the principle of legality instead.

The Public Power Test: Determining if a power is "public" is contextual. Factors include:

 The source of the power (statutory vs. contractual).

 The relationship of coercion between the actor and the subject.

 The impact of the decision on the general public.

 Whether the decision is exercised in the public interest.

The "Decision" Test (Bhungwan v JSE): For a "decision" to exist, there must typically be:

1. An application or request addressed to an authority.

2. An evaluative process where relevant documents are considered.

3. A conclusion drawn by the authority.

4. An exercise of power based on that conclusion.

Impact Assessment (Elements 5 & 6): The courts combine these elements to focus on whether an action
has serious consequences for individuals. Recommendations do not usually qualify as AA unless they are
a necessary prerequisite for a final decision that causes such consequences.