STUDY UNIT 4

Question 1

ALL ADMINISTRATIVE ACTIONS:

Answer 1

All administrative actions must be authorized by an empowering provision.

Question 2

THE REQUIREMENT OF LAWFULNESS:

Answer 2

the requirement of lawfulness allows administrators to identify what it is that they are entitled to do.

Question 3

SECTION 6(2) OF PAJA:
A COURT OR TRIBUNAL HAS THE POWER TO JUDICIALLY REVIEW AND ADMINISTRATIVE ACTION IF:

Answer 3

a. the administrator who took it:
i. was not authorised to do so by the empowering provision
ii. acted under a delegation of power which was not authorised by the empowering provision
d. the action was materially influenced by an error of law.
e. the action was taken:
i. for a reason not authorised by the empowering provision
ii. for an ulterior purpose or motive
iii. because irrelevant considerations were taken into account or relevant consideration were not considered.
iv. because of an unauthorised or unwarranted dictate of another person or body
v. in bad faith
vi. arbitrarily or capriciously
f. the action itself
i. contravenes a law or is not authorised by the empowering provision
g. the action concerned consists of a failure to take a decision
h. the action is otherwise unconstitutional or unlawful.

Question 4

AN INQUIRY UNTO REASON, PURPOSE OR MOTIVE OF THE ADMINISTRATOR & SECTIONS:

Answer 4

the LAWFULNESS requirement requires the administrator to act within such reason, purpose or motive
-the administrator’s reasons, purpose or motive must be aligned with the reasons, purpose and motive for which the power was given to the administrator as per the empowering provision
sections 6(2)(e)(i), (ii) and (v)

Question 5

AN INQUIRY INTO OMISSION OR FAILURE TO ACT & SECTION:

Answer 5

where there is a duty to act and the administrator does not so act, the failure to act is unlawful
-this would mean that what the administrator does will not align with the empowering provision requiring the administrator to do something.
-section 6(2)(g)

Question 6

AN INQUIRY INTO CHANGING OF OWN DECISIONS BY THE ADMINISTRATOR: {FUNCTUS OFFICIO}

Answer 6

FUNCTUS OFFICIO means that the administrator cannot vary, revoke or ignore decisions already taken and communicated to those it affects, except:
-where the law allows for such revocation or variation
-cases of fraud
-cases of lack of jurisdiction
-to correct small technical errors.

Question 7

THE DOCTRINE OF FUNCTUS OFFICIO:

Answer 7

the doctrine of functus officio only applies to final decisions.

Question 8

THE APPLICATION OF THE PRINCIPLE OF FUNCTUS OFFICIO and Two remedies:

Answer 8

the application of the principle of functus officio does not mean that the administrators do not have any remedies when they are of the view that they made decisions which are contrary to the law.

-the administrator is entitled to approach the high court for the review of such a decision
-the administrator cannot simply change his mind without approaching a court.

Question 9

DELEGATUS DELAGARE NON POTEST:

Answer 9

the delegate cannot delegate.

Question 10

IN ORDER TO INFER IMPLIED AUTHORITY TO DELEGATE POWER, FIVE FACTORS ARE CONSIDERED:

Answer 10

1. the nature of the power
2. the extent to which the power is transferred
3. the importance of the person or body that was originally authorised
4. Practical necessity
5. Impact of the power.