EXAM PREP ADL201M 2010

Transcription

1 EXAM PREP ADL201M 2010 DEFINITION OF AN ADMINISTRATIVE LAW RELATIONSHIP: An administrative relationship exists between 2 or more people where: At least one of the subjects is a person or body clothed in state authority, Who is able to exercise authority over a person or body in a subordinate position, Whose rights are affected by the action An unequal relationship 2 kinds of admin-law relationships: General admin-law relationship Legal rules governing the relationship apply to all subjects in a particular group Created by, changed and terminated by legislation Individual admin-law relationship Legal rules apply personally and specifically between parties Created by individual admin-law decisions DEFINITION OF ADMINISTRATIVE ACTION ITO PAJA: Admin action means a decision taken or failure to take a decision by: (a) an organ of state in exercising a power ito the Const, or a provincial const, or in exercising a public power or performing a public function ito any legislation Or (b) a natural or juristic person which is not an organ of state when exercising a public power or performing a public function ito an empowering provision, which adversely affects the rights of any person and which has a direct external legal effect. PAJA also defines decision as being of an admin nature under an empowering statute taken by an organ of state as defined in Sec 239 of the Constitution Examples of action excluded from the definition of AA in the PAJA: Powers + functions of: National Provincial Local Executives Legislative functions of: Parliament Provincial Legislatures Local Councils Judicial functions of: Judicial Officers of the Court

2 DEFINITION OF AN ORGAN OF STATE AS DEFINED BY THE CONSTITUTION Sec 239 of the Constitution: (a) Any dept of state or administration in the National, Provincial or Local sphere of government Or (b) Any other functionary or institution that exercises a power or performs a public function ito the Constitution or a provincial constitution or exercises a public power or performs a public function ito any legislation (c) A court or a judicial officer is excluded CONCEPT OF DELEGATION The rule delegatus delegare non potest = if the action entails the exercise of a discretion, no delegation takes place unless authorized by the relevant legislation ie if a power is conferred on an administrator because of specific qualifications, expertise or knowledge, this function may not be delegated to another functionary. [ delegatus delegare non potest rule = rule against unauthorized delegation ] Case Ref: Shidiack vs Union Government Delegation is possible ito Sec 238 of the Constitution if: it is consistent with the legislation ito which the power is exercised or the function is performed Or the power is exercised for another organ of state on an agency or delegation basis A subordinate may be instructed to implement a decision An administrator may not put itself in the position of having to accept directions or orders from another body The administrator may appoint a fact-finding body to assist it, providing the final discretion is exercised by the proper authority REQUIREMENTS FOR JUST ADMIN ACTION AS SET OUT IN SEC 33 OF THE CONST LAWFULNESS FAIR PROCEDURE REASONABLENESS WRITTEN REASONS WHERE RIGHTS HAVE BEEN ADVERSELY AFFECTED

3 PROCEDURALLY FAIR ADMIN ACTION: ITO SECTION 3 OF THE PAJA & COMMON LAW SECTION 3 OF THE PAJA Applies to the individual administrative-law relationship AA which materially and adversely affects the right or legitimate expectations of any person must be procedurally fair Extends to include legitimate expectations: Jenkins the doctrine of legitimate expectations has become part of our CL States that a fair admin procedure depends on the circumstances of each case Obligatory Requirements: (s 3(2)(b)) Adequate notice of nature and purpose of proposed action Reasonable opportunity to make representations Clear statement of the administrative action Adequate notice of any right of review or internal appeal Adequate notice of the right to request reasons Discretionary Requirements: (s 3(3)) Opportunity to obtain assistance and even legal assistance in complex cases Opportunity to present and dispute information and arguments Opportunity to appear in person The above requirements may be departed from only if reasonable and justifiable. This is determined by taking all relevant factors into account: The objects of the empowering provision The nature and purpose of and need for the action The likely effect of the administrative action The urgency of the matter The need to promote efficient administration and good governance The limitation must also comply with s 36 of the Constitution The administrator may also follow a different but fair procedure if empowering provision authorizes this COMMON LAW Rules of natural justice audi alteram partem (audi rule) to hear the other side Opportunity to be heard Proper notice of the intended action Reasonable and timeous notice Personal appearance / written representations Legal representation if warranted The right to lead evidence & cross-examine not innate Public hearing To be informed of considerations which count against the person Reasons must be given reasons for the decision nemo iudex in sua propia causa (nemo judex rule) rule against bias One may not be a judge in one s own cause The decision maker must be impartial and not biased No personal or pecuniary interest Rose pecuniary interest Liebenberg personal interest

4 CONCEPT OF LEGITIMATE EXPECTATION Legitimate expectation is based on an express promise by the authoritative body (empowering legislation) which leads to a right to a hearing if the expectation has not been met The application of the principle (doctrine) means that the rules of natural justice are extended to cases where the affected party has no vested right, but does have a potential right or legitimate expectation. The particular person has a right to be heard before a decision, whether beneficial or adverse to the person, is taken. LOCUS STANDI SECTION 38 OF THE CONSTITUTION in their own interest on behalf of another who cannot act in their own name as a member of or in the interest of a group or class of persons in the public interest an association acting in the interest of its members JUDICIAL REVIEW GROUNDS FOR JUDICIAL REVIEW ITO THE PAJA The administrator of administrative action (1) Ultra vires action (2) Excess of power by the administrator, for example. when the administrator lacked specified qualifications. when the administrator exceeded the geographical limits of the powers conferred. when the administrator did not act in accordance with provisions relating to time. when administrative actions exceeded the objectives or purpose of the empowering provisions. (3) When the administrator was biased (nemo iudex in sua causa) (4) When the administrator delegated his or her power without any authority to do so (delegatus delegare non potest) The noncompliance with formal requirements relating to administrative action The administrative action itself (1) Procedurally unfair action (2) Action materially influenced by an error of law (3) Action taken: for unauthorised reasons for unauthorised (ulterior) purposes or ulterior motives taking into account irrelevant considerations, or not considering relevant considerations (errors of fact, therefore) basing it on the unauthorised or unwarranted dictates of another person or body in bad faith arbitrarily or capriciously [ capricious means erratic or unpredictable]

5 (4) Action itself which: contravenes the law or is unauthorised by the empowering provision (note that this subsection links unlawfulness to ultra vires action); or is not rationally connected to - the purpose for which it was taken - the purpose of the empowering provision - the information before the administrator - the reasons given for it by the administrator (5) Failure to take a decision a remedy for an aggrieved person in the event of failure to take a decision is a mandamus. A mandamus is an order of court compelling an administrative organ to act (but not prescribing how it should act (6) Unreasonable action (7) Action otherwise unconstitutional or unlawful WHICH COURT MAY REVIEW ADMIN ACTION? Administrative action may be reviewed by the Constitutional Court, a High Court or court of similar status, and certain specifically designated magistrates' courts. PROCEDURE FOR JUDICIAL REVIEW UNDER PAJA The period within which a review may be instituted has been limited to 180 days Internal remedies provided for in any law must be exhausted (fully used) before the courts are approached Advantages of internal remedies: less expensive less cumbersome less time-consuming does not clog the courts with matters that can be dealt efficiently thru internal channels is a requirement of sec 7 of the PAJA MS CHANCEE WHICH REMEDIES SHE SHOULD PERSUE (EXAM QUESTION) MS CHANCEE SHOULD APPLY FOR AN INTERDICT TO STOP HER DISMISSAL UNTIL SUCH TIME AS A REVIEW BAS BEEN HEARD AN INTERDICT IS AIMED AT PREVENTING UNLAWFUL AA WHICH WILL PREJUDICE THE RIGHTS OF THE AFFECTED PARTY SHE HAS A CLEAR LEGAL INTEREST WHICH IS BEING THREATENED; THERE IS NO ALTERNATIVE SATISFACTORY REMEDY AVAILABLE SHE WILL SUFFER IRREPARABLE DAMAGE OR PREJUDICE IF THE INTERDICT IS NOT GRANTED. A REVIEW WILL EXAMINE THE PROCEDURAL FAIRNESS OF THE DISMISSAL AND THE COURT WILL GENERALLY REFER THE MATTER BACK TO THE CORRECT ADMINISTRATOR TO BE DEALT WITH IN THE CORRECT MANNER

6 JUDICIAL REMEDIES STATUTORY APPEAL - None of the higher courts have innate appeal jurisdiction appeals only available when the relevant legislation makes provision for it - Subordinate legislation = only makes such provision if authorized by enabling legislation - Appeals lie only against final decisions - Court = restricted to the record, but rehears the merits of the decision REVIEW - All higher courts have innate review jurisdiction ito the common law - Ouster clauses no longer constitutional ito s34 of the Constitution - Review must take place ito the Const, PAJA, specific statutes, Supreme Court Act (if review of lower courts decisions) - The grounds of review must be stated and broadly rests on an infringement of a fundamental right or challenges the validity of AA - It only decides on the validity of the decision, but may go beyond the record INTERDICT - Aimed at preventing / restricting unlawful AA which will prejudice the rights of the affected party (negative order) - Must be a clear legal interest which is being threatened with no alternative satisfactory remedy available - The party will suffer irreparable damage or prejudice if the interdict is not granted MANDAMUS - Used to compel an administrator to perform a statutory duty - Cannot stipulate how that power should be exercised - Court can be approached to grant a mandamus in the event of long delay to make a decision DECLARATORY ORDER - Applied when there is a clear dispute or uncertainty about the validity / effect of AA, even when other remedies may also be relied on - It clarifies the status of a matter DEFENCE IN CRIMINAL PROCEEDINGS - If a person is charged with a criminal offence created by legislation (failing to comply with empowering legislation) then the charge may be defended by challenging the validity of the administrative decision

7 REQUIREMENTS FOR VALID ADMIN ACTION REQUIREMENTS FOR JUST ADMIN ACTION AS SET OUT IN SEC 33 OF THE CONST LAWFULNESS FAIR PROCEDURE REASONABLENESS WRITTEN REASONS WHERE RIGHTS HAVE BEEN ADVERSELY AFFECTED JUST ADMIN ACTION: An over-arching requirement that relates to ALL the requirements for valid admin action Determines the legal boundaries of any AA Ensures that AA is performed in accordance w/all the relevant rules prescribed by law Synonyms for just admin action other overarching requirements: intra / ultra vires administrative legality applying one s mind to the matter LAWFUL ADMIN ACTION CONSTITUTION: Sec 33(1) Principle of Legality (Lawfulness) - demands compliance with all law PAJA: Gives effect to the right to lawful AA [Sec 33(1)] by providing for judicial review Unlawful AA = grounds for judicial review [unauth deleg, bias, fail comply prov] PAJA adopted to: - provide REVIEW of AA by court - impose DUTY on state to give effect to rights in Sec 33 - PROMOTE efficient administration + good governance - CREATE culture of accountability, openness, transparency PROCEDURALLY FAIR ADMIN ACTION CONSTITUTION: PAJA: Natural Justice - audi alteram partem [ to hear the other side ] - nemo iudex in sua propia causa [the rule against bias] Legitimate Expectations - Jenkins Sec 3 individual admin-law relationship (AA affecting any person) Sec 4 general admin-law relationship (AA affecting the public)

8 REASONABLE ADMIN ACTION CONSTITUTION: Sec 33 makes no reference to a objective or subjective approach to reasonableness Requires that AA be procedurally and substantively fair and just PAJA: Gives effect to the right to reasonable AA [Sec 33(1)] by giving an individual the capacity to: - institute proceedings in a court or tribunal for the review of AA on the ground that the action is so unreasonable that no reasonable person could have exercised the power or performed the function THE RIGHT TO WRITTEN REASONS SEC 5 OF THE PAJA PROVIDES FOR THE FURNISHING OF REASONS AS REQUIRED BY SEC 33(2) OF THE CONSTITUTION Sec 5(1): Sec 5(2): Sec 5(3): - Any person whose rights have been materially and adversely affected who has not been given reasons may within 90 days request written reasons for the action - the administrator (to whom the request is made) must give that person adequate reasons in writing within 90 days of receiving the request - the failure to furnish adequate reasons raises a presumption that the AA was taken without good reason Any departure from the requirement that adequate reasons be furnished must be reasonable and justifiable in the circumstances A court has the power to review AA if the action itself is not rationally connected to the reasons given for it Importance of written reasons: - they show how the administrative body functioned when it took the decision - shows whether that body acted lawfully/unlawfully, rationally/arbitrarily, reasonably/unreasonably - subordinate is at a tremendous disadvantage where reasons are not provided when challenging an admin decision Currie & Klaaren the principle purpose of furnishing reasons is to justify the admin action that has been taken