ADMIN ACTION

Question 1

Which provision of the constitution grants the right to just administrative action?

Answer 1

Section 33

Question 2

What does section 33 hold?

Answer 2

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 provide for the review of admin action, impose a duty on the state to give effect to just admin action and promote an efficient admin.

Question 3

What is the purpose of PAJA?

Answer 3

1. To give effect to the right to administrative action that is lawful, reasonable and procedurally fair and to the right to written reasons for admin action as contemplated section 33 of Constitution.
2. To promote an efficient admin and good governance and to create a culture of accountability, openness and transparency in the public admin or in the exercise of a public power or the performance of a public function.

Question 4

What is administrative action?

Answer 4

Any decision taken or any failure to take a decision by:
1. An organ of state exercising a power ito the Constitution or exercising a public power or performing a public function ito any legislation; or

2. A natural/juristic person 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 but does not include… (exclusions).

Question 5

Which provisions of PAJA deal with procedural fairness?

Answer 5

Section 3 and 4.

Question 6

What does section 3 deal with?

Answer 6

The general requirements of the right to a hearing when admin action materially and adversely affects the rights or legitimate expectations of any person.

Question 7

What does section 4 deal with?

Answer 7

The requirements of procedural fairness when the rights of the public are materially and adversely affected.

Question 8

Which provision deals with the reason for admin action?

Answer 8

Section 5.

Question 9

Which provision deals with the grounds of judicial review?

Answer 9

Section 6.

Question 10

What are the grounds for judicial review?

Answer 10

1. Lack of authority
2. Biasness
3. Procedural unfairness
4. Unconstitutional

Question 11

What is a decision?

Answer 11

1. A proposed decision and a failure to take a decision
2. An admin decision must be taken without unreasonable delay or within the time period that may be prescribed for the particular admin action.

Question 12

What is an empowering provision?

Answer 12

A specific law that authorises the administrator to make a decision.

Question 13

What is ‘has a direct, external legal effect’?

Answer 13

Decisions must be final and have an impact on a person’s rights, such person must be outside the administration but can also be within administration.

Question 14

What are the listed exclusions?

Answer 14

1. Executive powers/functions of NE
2. Executive powers/functions of PE
3. Executive powers/functions of a municipal council
4. Legislative functions of Parliament, a provincial legislature or a municipal council
5. Judicial functions of a judicial officer
6. A decision to institute or continue a prosecution
7. A decision by the JSC
8. Decision taken or failure to take a decision ito section 4(1)/.

Question 15

What is ‘administrative nature’?

Answer 15

1. Public character
2. Relationship of inequality or subordination
3. Decision connected with the daily or ordinary business of government.
4. Excludes decisions made in the exercise of executive, legislative, and judicial power.

Question 16

What is ‘that adversely affects the rights of any person’?

Answer 16

This means that the decision must have a negative impact on someone.
It is important to remember that giving someone a benefit might have a
negative impact on the rights of someone else. (For example, the award
of a tender)

Question 17

What are rights?

Answer 17

An enforceable claim maintainable against a duty-holder. May include prospective rights.

Question 18

What is adversely affects’?

Answer 18

Imposing a burden or cost.

Question 19

What are the two ways in which rights can be affected?

Answer 19

1. Deprive a person of their rights
2. Where rights are determined.

Question 20

What is an organ of state ito section 238 of Constitution?

Answer 20

Section 239 of the 1996 Constitution defines an organ
of states as:
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”.

Question 21

Why does the source of the power matter?

Answer 21

POPCRU
‘a statutory source of power is significant because
“it places the existence of public power largely, if
not completely, beyond contention.”

Question 22

What executive functions are not excluded?

Answer 22

1. President’s power to make any appointments that the Constitution or legislation requires the President to make other than as head of state. -s84(2)(e).
2. President’s power to pardon or reprieve offenders and remit fines, penalties or forfeitures.- s84(2)(j)
3. President and Cabinet exercises executive authority by implementing national legislation, except where the Constitution or an Act of Parliament provides otherwise. - s85(2)