STUDY UNIT 2

Question 1

ADMINISTRATIVE LAW:

Answer 1

Administrative law gives effect to administrative justice.

Question 2

PAJA GIVES EFFECT:

Answer 2

PAJA gives effect to just administrative action as stated in section 33 of the Constitution.

Question 3

PAJA SEEKS:

Answer 3

PAJA seeks to help achieve a democratic and accountable state.

Question 4

ADMINISTRATIVE ACTION:

Answer 4

Administrative action is defined in section 1 of PAJA, where it was later summarised in 7 elements in the Minister of Defence and Military Veterans v Motau 2014 case.

Question 5

CASE OF ATHOURITY:

Answer 5

Minister of Defence and Military Veterans v Motau 2014 case.

Question 6

ELEMENTS OF ADMINISTRATIVE ACTION:

Answer 6

1. A decision of an administrative nature (and the exclusions)
2. By an organ of state, natural or juristic person
3. When exercising a public power or performing a public function
4. In terms of the constitution or legislation (or an empowering provision)
5. That adversely affects rights
6. That has a direct, external legal effect.

Question 7

1. A DECISION OF AN ADMINISTRATIVE NATURE:

Answer 7

a decision (failure to make a decision) is defined in section 1 of PAJA as a decision made, proposed to be made or required to be made.
-failure to make a decision can cause a negative impact on one’s rights.

Question 8

According to the Offit Enterprise (Pty) Ltd case:

Answer 8

the failure of an administrator to make a decision where there is an obligation or duty for the decision to be made amounts to administrative action.

Question 9

-OF AN ADMINISTRATIVE NATURE AND LISTED EXCLUSION:

Answer 9

an administrative action is excluded from being any of the listed natures under section 1(b)(i)(aa)-(ee), that is:
-a decision of a LEGISLATIVE NATURE
-a decision of an EXECUTIVE NATURE
-a decision of a JUDICIAL NATURE

Question 10

2. BY AN ORGAN OF STATE, NATURAL OR JURISTIC PERSON:

Answer 10

PAJA defines an organ of state with reference to the given definition in section 239 of the Constitution.
-an organ of state includes any state department together with any functionary or institute exercising a public power or performing a public function.

Question 11

3. WHEN EXERCISING A PUBLIC POWER OR PERFORMING A PUBLIC FUNCTION:

Answer 11

-the key question is whether the function performed is PUBLIC in NATURE?
-Chirwa v Transnet Ltd provides us with a list of factors to consider:
a. Coercion
b. Public Impact
c. Source of the power
d. Public Interest.

Question 12

4. IN TERMS OF THE CONSTITUTION OR LEGISLATION (OR IN TERMS OF AN EMPOWERING PROVISION):

Answer 12

Mostert v Nash, an organ of state has to perform in terms of a constitution or legislation

Question 13

5. THAT ADVERSELY AFFECTS RIGHTS:

Answer 13

adversely affecting rights means that there is a negative impact made on the rights of someone.
-which deprives them of the opportunity to do something

Question 14

6. THAT HAS A DIRECT, EXTERNAL LEGAL EFFECT:

Answer 14

DIRECT EFFECT: this means that the decision was made final
EXTERNAL EFFECT: should not include any person part of an organ of state.