Rule Making Flashcards
(20 cards)
What is rule-making in administrative law?
Rule-making refers to the formulation of general norms or regulations by an administrative body, typically through delegated legislation.
Is rule-making administrative action under PAJA?
Yes, rule-making can be administrative action under PAJA if it meets the definition in section 1, unless it is excluded (e.g. legislative function).
What case confirmed that regulation-making under the DMA is administrative action?
Esau v Minister of Co-operative Governance and Traditional Affairs 2021 (3) SA 593 (SCA).
What does section 1 of PAJA exclude from administrative action?
Executive and legislative functions, judicial functions, and actions by Parliament, the President (in terms of s 84(2)), and courts.
What is the significance of rule-making being administrative action?
It means the action must comply with PAJA’s procedural fairness and lawfulness requirements, including public participation if affecting the public.
What does PAJA section 4 require for rule-making affecting the public?
It requires procedural fairness, including public participation via notice and comment, public inquiries, or similar engagement.
What determines if a rule-making process requires public participation?
Whether the administrative action materially and adversely affects the rights or legitimate expectations of the public.
Can all delegated legislation be challenged under PAJA?
No, only if the delegated legislation amounts to administrative action as defined in PAJA.
What is the role of reasonableness in rule-making under PAJA?
The rule must be reasonable in relation to its purpose and not arbitrary or irrational, as per PAJA section 6.
What happens if rule-making violates PAJA?
It can be reviewed and set aside by a court for being unlawful, unreasonable, or procedurally unfair.
What is the distinction between legislative and administrative rule-making?
Legislative rule-making refers to the creation of general norms (e.g. municipal by-laws), while administrative rule-making implements policy and can be subject to PAJA if it affects rights or expectations.
Why is the distinction between legislative and administrative rule-making important?
Only administrative rule-making may be subject to PAJA’s procedural fairness and judicial review requirements, whereas legislative rule-making is excluded.
What are the key facts of the Esau case?
The case involved the challenge to regulations made by the Minister of Co-operative Governance during the COVID-19 pandemic. The court held these regulations were administrative action under PAJA.
What was the holding in Esau v Minister of Co-operative Governance?
The SCA held that regulations made under section 27(2) of the DMA constituted administrative action, as they directly and significantly affected individual rights.
How does Esau impact the understanding of rule-making under PAJA?
It confirms that even high-level regulatory decisions can be administrative action if they meet PAJA’s definition, expanding judicial reviewability.
What limits does the separation of powers place on judicial review of rule-making?
Courts must respect the roles of the executive and legislature and avoid substituting their own opinions for that of the rule-maker, focusing only on legality, reasonableness, and procedural fairness.
What did Hoexter criticise about the pre-Esau approach to rule-making?
Hoexter noted courts were too quick to exclude rule-making from PAJA without proper analysis of its direct impact on rights and interests.
What are examples of administrative rules?
Regulations by ministers, policies affecting rights, circulars with binding effect — if they affect rights or expectations, they may be administrative action.
What is the difference between substantive and procedural rules?
Substantive rules create obligations or rights, while procedural rules govern how decisions are made. Both may fall under PAJA if they affect the public.
Can courts substitute their opinion when reviewing rule-making?
No, courts defer to the administrator’s expertise and discretion, intervening only if the rule is irrational, unlawful, or procedurally unfair.
