STUDY UNIT 3 Flashcards
(12 cards)
METHODS OF REGULATING ADMINISTRATIVE ACTION:
NON-JUDICAL REGULATIONS:
1. Legislative Regulations
2. Internal Controls
3. Specialized Oversight Bodies
4. Alternative Dispute Resolutions
JUDICIAL REGULATIONS:
5. Judicial Review
CONTROL:
is ensuring that administrators give effect to administrative law principles and holding them accountable when they don’t do so.
-also known as the red-light theory.
FACILITATE:
the law tells the administrator what she can or must do to give effect to the administrative law principles, and how she can go about doing that.
-also known as the green-light theory.
- LEGISLATIVE REGULATION:
administrative action mostly has its origin in legislation enacted by the legislature.
- must align and promote administrative law and align with the objects of section 33 and PAJA. If it does not, then it can be used as a regulating tool
- INTERNAL CONTROLS:
Internal controls are often referred to as internal remedies, these are mechanisms within the administration aimed at addressing administrative failures.
SECTION 7(2) OF PAJA:
states that internal remedies must be exhausted, unless the court decides differently to ensure justice, the court may refer back if not exhausted.
- SPECIALISED OVERSIGHT BODIES:
includes Chapter 9 institutions:
-Public Protector
-South African Human Rights Commission
-Auditor General
-Public Service Commission
- ADR:
-ADR is not a general requirement to our law
-it is usually required by a clause in an agreement
-it includes negotiation, mediation, conciliation or arbitration.
- JUDICIAL REVIEW:
-it is rooted in common law
-administrators must not act outside these powers.
AVENUES OF JUDICIAL REVIEW:
- PAJA
- Section 33
- Special statutory review
- The constitutional principle of legality
- Common law
REVIEW IS CONCERNED WITH:
review is concerned with how the decision was taken, and whether the decision complies with all the law.
APPEAL IS CONCERNED WITH:
appeal is concerned with whether the correct or the best decision was taken.
