Lawfulness

Question 1

What does lawfulness consist of?

Answer 1

1. Authority to act
2. Obeying the law
3. Delegation of powers

AOD

Question 2

What did Fedsure hold regarding authority?

Answer 2

The Legislature and Executive can only use powers given to them by law and cannot act beyond those powers.

Question 3

What determines the content of scope of authority?

Answer 3

• Relevant empowering provision;
• Relevant statutes (PAJA);
• Appropriate rules of statutory
  interpretation;
• General principles of admin law as applied
  and developed by the courts

Question 4

What are the common law principles that determine content and scope of authority?

Answer 4

1. Ratione Personae (Personal qualifications):
   The person exercising administrative power must be properly appointed and have the legal authority to act. If someone without proper appointment acts, their decisions can be invalid.
2. Ratione Loci (Place):
   Power must be exercised in the correct location or jurisdiction. For example, a local licensing authority can only issue permits within its designated area.
3. Ratione Materiae (Subject matter):
   The power exercised must relate to the specific subject or matter the law allows. If an official acts beyond the scope of their subject matter, their actions are unlawful.
4. Ratione Temporis (Time):
   Power must be exercised within the time limits set by law or regulation. Delays or actions outside the permitted time frame can invalidate decisions like licenses or grants.

Question 5

What is the common law rule irt to delegation?

Answer 5

“…delegatus delegare non potest…”
(the person to whom a power is granted may
not delegate it to another)

Question 6

What does abuse of discretion consist of?

Answer 6

1. Ulterior purpose/motive
2. Mala fides
3. Failure to apply the mind

Question 7

What is the effect of ulterior purpose?

Answer 7

Administrative action exercised for an ulterior
purpose is invalid = ultra vires

Question 8

What are the consequences of mala fides at common law?

Answer 8

– Cancels the requirement that internal remedies must be exhausted;
– The aggrieved party has an immediate right to judicial review;
– The matter will not be referred back to the administrator, the review
court will prescribe the particular action;

Question 9

Which case deals with failure to apply the mind?

Answer 9

Bennet Pringle (Pty) Ltd v
Dreyer

Question 10

What is arbitrarily or capriciouslY/

Answer 10

Linked to “irrationality”, “unreasonableness”,
“ulterior purpose” and “mala fides”
Meaning?
 “Action that is inconsistent and
unpredictable”
 “characterized by or liable to sudden
unpredictable changes in attitude or
behaviour; impulsive; fickle”

Question 11

What section of PAJA covers an error of law?

Answer 11

Section 6(2)(d) of PAJA.

Question 12

What is a jurisdictional fact?

Answer 12

A fact that must exist before the exercise of a power. If missing, the action is unlawful (Sec 6(2)(b)).

Question 13

What is a non-jurisdictional fact?

Answer 13

A fact on which jurisdiction does not depend. Mistake of fact within the administrator’s discretion.

Question 14

Are non-jurisdictional mistakes of fact reviewable at common law?

Answer 14

No, unless accompanied by mala fides, ulterior motive, breach of statute, or failure to apply the mind.

Question 15

What changed the common law position on mistake of fact?

Answer 15

The case of Pepcor Retirement Fund v Financial Services Board.

Question 16

Why was the decision in Pepcor reviewable?

Answer 16

The Registrar acted on a material mistake of fact that was central to the decision.

Question 17

Which PAJA section supports review where relevant facts were not considered?

Answer 17

Section 6(2)(e)(iii).

Question 18

What does section 6(2)(i) of PAJA provide for?

Answer 18

A general ground of review for unlawful administrative action.

Question 19

What did the court rule in Chairperson’s Association v Minister of Arts and Culture?

Answer 19

That a material misstatement of fact influenced the decision; the decision was set aside.

Question 20

What is the distinction between an error of law and an error of fact?

Answer 20

Error of law = misinterpretation of law; Error of fact = mistake about the factual basis.

Question 21

What does the Hira v Booysen case show?

Answer 21

That a material error of law in interpreting the empowering provision is reviewable.

Question 22

When is a legal error reviewable under PAJA?

Answer 22

When it materially influenced the decision (Sec 6(2)(d)).

Question 23

What is meant by ‘materiality’ in review?

Answer 23

If facts do not justify the decision under correct law, the decision may be set aside.

Question 24

List PAJA sections dealing with problems of jurisdiction.

Answer 24

Sec 6(2)(b): jurisdictional fact; Sec 6(2)(d): error of law; Sec 6(2)(i): non-jurisdictional error of fact.

Question 25

What PAJA section deals with rationality?

Answer 25

Section 6(2)(f)(ii)

Question 26

What PAJA section deals with reasonableness?

Answer 26

Section 6(2)(h)

Question 27

What is the rationality test from Carephone?

Answer 27

Is there a rational objective basis justifying the connection between the material and the conclusion reached?

Question 28

What is required under Section 6(2)(f)(ii) for review?

Answer 28

The action must be irrationally connected to the purpose, empowering provision, information before the administrator, or the reasons given.

Question 29

How does Pharmaceutical Manufacturers define rationality?

Answer 29

Rationality is a minimum threshold requirement for the exercise of public power.

Question 30

What does Bato Star say about reasonableness?

Answer 30

A decision is unreasonable if no reasonable decision-maker could have made it.

Question 31

What factors determine whether a decision is reasonable?

Answer 31

Nature of the decision, expertise of the decision-maker, reasons, competing interests, and impact on affected persons.

Question 32

What is the standard of review under section 6(2)(h)?

Answer 32

Whether the decision is so unreasonable that no reasonable person could have so exercised the power.

Question 33

What is the relationship between rationality and reasonableness?

Answer 33

Rationality is a minimum standard; reasonableness includes rationality plus additional proportionality and balancing factors.

Question 34

What does Hoexter say about the interpretation of 'reasonable'?

Answer 34

It strikes the correct balance—not too strict (perfection) nor too lenient (capricious).

Question 35

What case confirmed that proportionality is part of reasonableness?

Answer 35

Bel Porto School Governing Body.

Question 36

What role does proportionality play in judicial review?

Answer 36

It requires balancing the adverse and beneficial consequences and considering less restrictive means.

Question 37

In what situation is a decision not considered irrational despite alternatives?

Answer 37

If there's a rational connection between the means and ends—even if other means exist (Bel Porto).

Question 38

What is an example of irrationality under PAJA s 6(2)(f)?

Answer 38

If a decision lacks a rational connection to the empowering purpose or is based on irrelevant/missing information.

Question 39

What section of PAJA covers an error of law?

Answer 39

Section 6(2)(d) of PAJA.

Question 40

What is a jurisdictional fact?

Answer 40

A fact that must exist before the exercise of a power. If missing, the action is unlawful (Sec 6(2)(b)).

Question 41

What is a non-jurisdictional fact?

Answer 41

A fact on which jurisdiction does not depend. Mistake of fact within the administrator’s discretion.

Question 42

Are non-jurisdictional mistakes of fact reviewable at common law?

Answer 42

No, unless accompanied by mala fides, ulterior motive, breach of statute, or failure to apply the mind.

Question 43

Which PAJA section supports review where relevant facts were not considered?

Answer 43

Section 6(2)(e)(iii).

Question 44

What does section 6(2)(i) of PAJA provide for?

Answer 44

A general ground of review for unlawful administrative action.

Question 45

What is the distinction between an error of law and an error of fact?

Answer 45

Error of law = misinterpretation of law; Error of fact = mistake about the factual basis.

Question 46

When is a legal error reviewable under PAJA?

Answer 46

When it materially influenced the decision (Sec 6(2)(d)).

Question 47

What is meant by “materiality” in review?

Answer 47

If the facts do not justify the decision under the correct law, the decision may be set aside.

Question 48

What sections of PAJA deal with problems of jurisdiction?

Answer 48

Section 6(2)(b): jurisdictional facts; Section 6(2)(d): error of law; Section 6(2)(i): general review ground.

Question 49

Which PAJA section governs bias as a ground for review?

Answer 49

Section 6(2)(a)(iii)

Question 50

What does 'nemo iudex in sua causa' mean?

Answer 50

No one should be a judge in their own cause.

Question 51

What is the rule against bias under common law?

Answer 51

That a decision-maker must be impartial and not favour any party.

Question 52

What test is used to determine perceived bias?

Answer 52

The 'reasonable suspicion of bias' test.

Question 53

How is actual bias identified?

Answer 53

When the decision-maker was in fact prejudiced or closed to persuasion.

Question 54

What did the court hold in BTR Industries SA?

Answer 54

A reasonable suspicion of bias is sufficient for disqualification.

Question 55

What is the onus in proving bias under PAJA?

Answer 55

The applicant must show a reasonable perception or suspicion of bias.

Question 56

What is the distinction between independence and impartiality?

Answer 56

Impartiality = no bias; Independence = structural protection from outside influence.

Question 57

What are sources of bias that may trigger judicial review?

Answer 57

Financial interest, family ties, pre-judgment, institutional allegiance.

Question 58

What is personal interest bias?

Answer 58

Where an official has a personal relationship or motive influencing a decision (e.g., SARFU case).

Question 59

What is institutional or structural bias?

Answer 59

Bias from within a decision-making body due to internal policies or hierarchy.

Question 60

Is internal appeal to the same authority always biased?

Answer 60

No, not unless real prejudice or unfairness results.

Question 61

What does the SARFU case say about perceived bias?

Answer 61

Reasonable perception of bias is enough to disqualify a decision-maker.

Question 62

What did the court decide in Basson v Hugo 2019?

Answer 62

The High Court had to hear the review after the SCA remitted it.

Question 63

What are the guidelines from S v Roberts for assessing bias?

Answer 63

Reasonable person’s suspicion, on reasonable grounds, that bias exists.

Question 64

Can a suspicion of bias be based on speculation?

Answer 64

Yes, if reasonably grounded and understood in context.

Question 65

What was Jonas Makwakwa’s claim against the SARS Inquiry?

Answer 65

That it was biased and pursued a predetermined narrative.