Lesson 2 Flashcards
(54 cards)
List persuasive source of Administrative law
- Academic law books and journals
- Foreign law
- Reports by Chapter 9 institutions such as Public Protector and Auditor General
- Policy documents such as Green paper and white paper
What are he key features of Administrative law?
- State Authority
- Administrative action
- Just Administrative action
- Control of Administrative action
What is Administrative law?
-It is part of public law
-That regulates the activities of public administrators
- Such as any organ of state or a natural/juristic person
- Exercising public power or performing public function
-By prescribing provisions for procedures and
- Providing for control measures for all administrative actions
List the Binding/Authoritative sources of Administrative law
- The Constitution of South Africa 1996
- The legislation (PAJA & PAIA)
- UBUNTU
- Court decisions/Case law
- International law
- Administrative practices/customs
- Common law
Legal forces of Administrative action an be ended by:
- Repeal
- Amendment
- Revocation
- Court order
- Lapse of time
- Withdrawal of relationship
What are the three rule of the Audi alteram partem rule?
- The Notice rule ( Be notified of the decision prior to the action)
- The Hearing rule( Be given an opportunity to present your case and influence the decision)
- The Bias rule ( Be heard by an unbiased decision maker)
According to O’Regan J, Factors relevant to determining reasonable reasonableness of a decision are:
- Nature of the decision
- Identity and expertise of the decision maker
- Range of factors relevant to the decision
- Reasons given for the decision
- Nature of competing interests involved
- Impact of the decision on the lives and well-being of those affected by it.
List the Constitutional requirements that just administrative action must meet.
- Lawfulness
- Procedurally fair
- Reasonable
- Written reasons must be provided where administrative action has adverse impact on the right of others.
- National legislation must be enacted to give effect to these rights and must:
a) Provide for review of Administrative action by the courts
b) Impose a duty on the state to give effect to the rights in subsect 1 and 2
c) Promote an efficient administration.
What is an administrator?
An organ of state or any natural or juristic person taking administrative action
Which actions does not qualify as administrative action?
- Executive powers and functions of the National and Provincial Executives and municipal council
- The Legislative functions of the Parliament, Provincial legislatures and municipal councils.
- The Judicial functions of the Judicial officers of court.
- The nomination, selection and appointment of Judicial officers.
- The decision to institute or continue prosecution.
- Decisions in terms of sec 4(1) of PAJA 2000
- Decisions in terms of Promotion of Access to Information Act 2000
Three forms of delegation by Wiecher
- Mandate/instructions
- Deconcentration
- Decentralization
Name two types of control in administrative action
- Internal control
- Judicial control
Three forms of abuse of power by administrator.
- Exercising power with an unauthorized or ulterior motive.
- Exercising power using an unauthorized procedure.
- Exercising power using ulterior motive.
Forms of internal control of Administrative action
- Control by senior or superior administrators or specially constituted bodies or institutions
- Parliamentary Control
- Public bodies and commissions
Forms of judicial control
- Statutory appeal
- Judicial review
- Interdict
- Mandamus
- Declaratory order.
- Defense in criminal proceedings
Name the chapter 9 institutions
- The public protector
- The South African Human Rights commission
- Commission for Gender Equality
- Electoral commission
- Auditor-General
- Commission for Promotion and Protection of the Rights of Cultural, Religious and Linguistics communities.
Grounds for Judicial review relating to the administrator
- The Ultra Vires action
- Unauthorized delegation.
- Nemo iudex in sua causa (The rule against bias)
Distinction between Control and Remedy.
CONTROL - a method of limiting, supervising and regulating an administrative action.
REMEDY- the means of gaining legal amends for a wrong caused by administrative action.
What is meant by Nemo iudex in sui causa rule?
This is a rule against bias which means that “ No one should be a judge in his/her own case”
Common examples of bias are:
- A pecuniary (Financial interest)
- Personal interest.
What is the primary governing framework for public administration according to Section 95(1)?
Democratic values and principles enshrined in the Constitution
This section outlines the fundamental values that public administration must adhere to.
What is the first principle governing public administration?
The promotion and maintenance of a high standard of professional ethics
This principle emphasizes the importance of ethical conduct within public service.
What does the second principle focus on in public administration?
The promotion of efficient, economic and effective use of resources
This principle aims to ensure that public resources are utilized optimally.
What is meant by a development-oriented public administration?
A focus on promoting development through public administration practices
This principle encourages growth and development within communities.
