Page 1 of 9 DURATION: 3 HOURS TOTAL MARKS: 80 INTERNAL EXAMINERS : INTERNAL MODERATOR: PROFESSOR K GOVENDER PROFESSOR M DU PLESSIS MS L STONE MR D H HULME EXTERNAL EXAMINER : PROFESSOR N GOOLAM INSTRUCTIONS TO STUDENTS You are entitled to 20 minutes of reading time Section A: Answer one question. Section B: Answer one question. Section C (1): Compulsory question. Section C (2) Answer one question. PLEASE ANSWER EACH SECTION IN A SEPARATE ANSWER BOOK PLEASE NOTE PAJA refers to the Promotion of Administrative Justice Act 3 of 2000 PAIA refers to the Promotion of Access to Information Act 2 of 2000 Constitution refers to the Constitution of the Republic of South Africa, 1996
Page 2 of 9 SECTION A: PROFESSOR GOVENDER S QUESTIONS ANSWER ONE OF THE FOLLOWING TWO QUESTIONS QUESTION 1 1.1 Assume you are a legal advisor for ethekwini Municipality and the City Manager requests an opinion from you based on the following facts. Because of the downturn in the economy, a large number of residents are defaulting on the payment of their water and sewage levies. The existing practice of the municipality is to send a notice that an amount is outstanding to the addresses on record and if payment is not received within 5 days of the date of the notice, to terminate the services forthwith. There are a large number of flats and rented accommodation in ethekwini. In order not to be unduly burdened and to deliver on their core functions of service delivery, these notices are only sent to the owners or landlords of the individual buildings and not to the tenants. All contracts for services are entered into between the owner of the building and the municipality. In other instances, notices are sent to the individual home owners as contracts for the provision of services are entered with them. The City Manager is concerned about whether the City is acting procedurally fairly in the light of recent legal developments. Advise him as to whether the current procedures, which you can assume are administrative actions, are in accordance with section 3 of PAJA. If they are not, then suggest ways in which the procedure can be brought in line with the requirements of PAJA as interpreted. You opinion should also consider an analysis of section 3(4) of PAJA. [20 marks] 1.2 The MEC for Agriculture has decided to adopt a rule that all bovines in the province must be innoculated three times as opposed to twice a year. The Department after having acted in accordance with section 4 of PAJA and, after considering the comments received, decided on the final rule. The MEC seeks your assistance as to whether he is obliged to provide any reasons or justification for the adoption of the rule. [5 marks] [Total Q1: 25 marks]
Page 3 of 9 QUESTION 2 Travel with Ease has been the official travel agent for the KZN Provincial Government for the past three years. Their contract came to an end in August 2009. The Provincial Tender Board, which is an organ of state, invited tenders from travel agents in the province for a further period of three years. Travel with Ease together with ten other agents submitted their tenders and three were short listed. The Traveller, a competitor, was finally awarded the tender. Travel with Ease requested reasons and this was refused by the Tender Board. The Board is of the view that in the absence of Travel with Ease proving that any of its rights have been materially and adversely affected, it is not obliged to supply reasons. Travel with Ease instructs you to bring an application compelling the Provincial Tender Board to supply reasons. Assume that the decision of the Tender Board is administrative action. You are required to: 2.1 Discuss the reasoning of the Supreme Court of Appeal in Transnet v Goodman Bros 2001 (1) SA 853 and determine whether it is applicable to section 5 of PAJA and assess whether Travel with Ease ought to be given reasons. [8 marks] 2.2 Assume that reasons are finally given. In essence, the Provincial Tender Board states that The Traveller is part of a much larger travel consortium and that the various travel needs of the province will be better met by it than by the applicant. Discuss the legal principles that will be used to assess whether the reasons submitted are adequate. [12 marks] 2.3 In Chairman, Board on Tariffs and Trade and others v Brenco 2001 (4) SA 511, the applicants contention that they were treated procedurally unfairly was rejected by the court. Discuss the reasoning of the court relating to the procedural fairness arguments made by the applicants. [5 marks] [Total Q2 : 25 marks] [TOTAL SECTION A : 25 MARKS]
Page 4 of 9 SECTION B: PROFESSOR DU PLESSIS SECTION ANSWER ONE OF THE FOLLOWING TWO QUESTIONS QUESTION 3 Assume that it is April 2008, and the media has just reported that a Chinese vessel (the An Yue Jiang ) is anchored outside Durban harbour awaiting clearance to dock and discharge six containers of weapons destined for the Zimbabwe Defence Force. Given the post-election crisis in Zimbabwe at the time (including a number of attacks on opposition members and their supporters), it appears highly irresponsible for the South African authorities to permit these weapons to be transported through South Africa and delivered to Zimbabwe, thus adding to the conflict and violence already taking place in that country. The media both local and international have investigated and published reports in which the following information has come to light: The vessel is owned by the parastatal Chinese Ocean Shipping Company; The ship is carrying cases of weaponry and ammunition in six containers, and the delivery address is the Zimbabwe Defence Force, Harare, and the point of origin on the cargo manifest is Beijing, China. Government communications head at the time, Themba Maseko, has said at a media briefing on Thursday 17 April 2008 that We are not in a position to act unilaterally and interfere in a trade deal between two countries [Zimbabwe and China]. South Africa is not at all involved in the arrangement: it s a matter between the two countries. It would be possible, but very difficult for South Africa to start intervening and say that we will not allow the vessel through. He added that [a]ll that South African authorities can do is to make sure that all proper administrative processes are followed. You have studied the law and have come upon the National Conventional Arms Control Act 41 of 2002 (the NCACA) which requires persons involved in the conveyance of conventional arms through or over the territory of the Republic or its territorial waters to any other place or destination outside the Republic, whether or not such conventional arms are offloaded, to be in possession of a conveyance permit issued in terms of section 14(2) of the Act. Such a permit must be issued by the National Conventional Arms Control Committee, a Committee established in terms of the NCACA. You establish from newspaper reports that when the MV An Yue Jiang entered South African territorial waters it was not in possession of such a permit. What is more, you notice that section 15 of the Act provides that when considering applications for licences to convey arms the Committee must inter alia: assess each application on a case-by-case basis; avoid contributing to internal
Page 5 of 9 repression, including the systematic violation or suppression of human rights and fundamental freedoms; avoid transfers of conventional arms to governments that systematically violate or suppress human rights and fundamental freedoms; adhere to international law, norms and practices and the international obligations and commitments of the Republic, including United Nations Security Council arms embargoes; take account of calls for reduced military expenditure in the interests of development and human security; avoid contributing to crime; and avoid the export of conventional arms that may be used for purposes other than the legitimate defence and security needs of the government of the country of import. Given the troubling response from the South African government, you are briefed by a local NGO who believes the Government is acting unreasonably and unlawfully. They want to bring a court application to challenge the decision to allow the weapons to be offloaded in the Durban Harbour. Please provide an opinion in which you explain to your client the prospects of reviewing and setting aside the decision of the National Conventional Arms Control Committee. In your answer make reference to the review grounds set out in section 6 of PAJA and relevant case law. [Total Q3: 20 marks] QUESTION 4 It is the year 2010. President Zuma is pondering the pardoning of prisoners under powers given to him by virtue of section 84(2)(j) of the Constitution (which provides that [t]he President is responsible for - pardoning or reprieving offenders and remitting any fines ). The President s former financial adviser, Mr Schabir Shaik, is one of the prisoners to have requested a pardon from President Zuma. Schabir Shaik is a South African businessman from Durban, who rose to prominence due to his close association with President Zuma during Zuma s time as Deputy President. On 2 June 2005, Schaik was found guilty of corruption and fraud, which also led to the dismissal of Zuma two weeks later from his position as Deputy President in President Mbeki s Cabinet. Shaik was put on trial for fraud and corruption at the Durban High Court from 11 October 2004. During the course of the trial, Shaik admitted that he falsified his qualifications and business achievements. Shaik was found guilty on two counts of corruption and one count of fraud, with Judge Squires stating in his 165-page verdict that there was "overwhelming" evidence of a corrupt relationship between Shaik and Zuma. Shaik was sentenced to 15 years' imprisonment on each of the two counts of corruption, as well as 3 years on the count of fraud. His appeal to the Supreme Court of Appeal failed, and his appeal to the Constitutional Court for his conviction and sentence for corruption and
Page 6 of 9 fraud was turned down with the court ruling that "[a]n appeal against conviction and sentence does not bear any reasonable prospect of success". Shaik has since been released on medical parole, has miraculously cheated death, and has allegedly flouted the terms of his parole. The Presidency confirmed in January 2010 that Shaik is one of approximately 300 convicted persons to have applied for presidential pardon. There are rumours swilling about that the President is under pressure to pardon Shaik. Some speculate that the pardon might be granted to do a friend a favour, or to return a favour for previous financial assistance provided by Shaik; others say that the pardon might be granted to prevent Shaik from spilling the beans about the President s own involvement in criminality. In accordance with the nation s legitimate expectation, e-news reported yesterday that President Zuma announced that he has decided to pardon Shaik. He also discloses that Shaik is the only prisoner that is worthy of being pardoned, and that the other applicants for a pardon were not successful in seeking reprieve. You are urgently briefed by a group of ten prisoners at Westville prison (who call themselves the 100% Rule of Law Boys ). They tell you that they knew Shaik while he was in prison, and that they had applied alongside Shaik to President Zuma for a pardon. They are unhappy that their pardon applications were rejected while Shaik s application was successful; and they complain bitterly to you that the only reason Shaik was successful is because he enjoyed a special relationship with the President. They wish you to bring an application to declare the President s decision to pardon Shaik as unlawful. They ask you for the following advice: First: they want to know whether President Zuma s decision is subject to challenge in the High Court on the basis of administrative justice principles. With reference to the definition of administrative action in s 1 PAJA and relevant case law, explain whether the scenario involves administrative action. And second: if the decision is not subject to challenge as administrative action, they want to know if there is some other basis on which they might successfully challenge the decision, and what the standard of review would entail. [Total Q4: 20 marks] [TOTAL SECTION B: 20 marks]
Page 7 of 9 SECTION C: MS STONE S SECTION SECTION C(1) COMPULSORY QUESTION QUESTION 5 - COMPULSORY 5.1 Assume that President Jacob Zuma has decided to accept the appointment of Mr Mwiza Mpindu as Malawi s ambassador to South Africa. On 16 April 2010 Mr Mpindu was sworn in as the Malawian ambassador to the Republic of South Africa in Pretoria. Various human rights groups in South Africa and Malawi complain that Mr Mpindu should never have been appointed ambassador to South Africa. Their argument is that over the past few years, homosexuals have been persecuted in Malawi. In particular on 28 December 2009, two gay men were arrested for having held an engagement party. According to Article 20 of the Malawi Penal Code, homosexuality is punished with up to 14 years imprisonment as it constitutes an unnatural practice. Mr Mpindu is the former Director of Public Prosecutions who personally drew up the charges against the two men. The human rights groups argue that President Zuma ought to have taken these facts and circumstances into account and refused to accept the appointment of Mr Mpindu as ambassador. The human rights organizations approach you for advice. They want to know whether President Zuma s decision to accept Mr Mpindu as Malawi s ambassador to South Africa might be challenged on administrative law grounds. Briefly explain whether the President s decision amounts to administrative action in terms of PAJA. [5 marks] 5.2 The Minister of Health has the power to make regulations to govern the distribution of Nevirapine and other HIV/AIDS medication. Given the complex socio-economic and financial considerations that are involved in formulating such regulations, she appoints an Advisory Committee composed of experts in the field of public health and economics to assist her. On the assumption that this conduct amounts to administrative action, justify why it is classified as administrative action by way of an analysis of the proper interpretation to be accorded to the phrases decision of an administrative nature, adverse affect on rights and direct, external legal effect. Your answer must refer to appropriate and relevant case law. [10 marks] [Total Q5: 15 marks]
Page 8 of 9 QUESTION 6 QUESTION C (2) ANSWER ONE OF THE FOLLOWING TWO QUESTIONS It is less than a month prior to the opening World Cup game to be played in Durban. The South African government has been working hard at ensuring that law and order is upheld. The effective enforcement of the provisions of the Criminal Procedure Act is seen to be vital in ensuring a successful World Cup. One such notable provision of the Criminal Procedure Act is section 40, which states that a peace officer may arrest a person without a warrant, on condition that the purpose or object of an arrest is to bring the suspect before a court of law, in order to face prosecution. Aware of the ever-increasing number of prostitutes walking the streets of Durban and in an effort to rid the streets of unsavoury elements so as to create the best impression for the numerous tourists visiting Durban, the South African Police Service in the Durban area have been systematically arresting these prostitutes and detaining them at the Durban Central Police Station. When the prostitutes question their arrest, the police officers routinely reply: We are acting on the instructions of the Station Commissioner [of the Durban Central Police Station]. The prostitutes have complained to you that they are harassed and intimidated and although they have been arrested on several occasions, they have never gone before a Magistrate. Furthermore, the arrest and detention of these prostitutes appears to be merely for the purpose of extracting bribes and sexual favours. Substantiate which ground(s) of review you could invoke in order to assist the prostitutes who have sought your legal advice. Develop your argument with reference to a detailed consideration of the legal principles contained in relevant case law. [Total Q6: 20 marks] QUESTION 7 7.1 Briefly discuss the exclusions of the appointment of judges by the Judicial Service Commission and a decision by the National Prosecuting Authority to institute or continue a prosecution from the remit of administrative law by PAJA. Provide commentary on the likely reasons for these exclusions. [8 marks]
Page 9 of 9 7.2 Discuss the content and significance of the maxim delegatus delegare non potest for purposes of the requirement of lawfulness in administrative action. [12 marks] [Total Q7: 20 marks] [TOTAL SECTION C: 35 MARKS] ~~~~~~~~~~~~~~ END OF EXAMINATION PAPER ~~~~~~~~~~~~~~