Administrative Law Define administration Discuss administrative law under the previous and new constitutional dispensations Distinguish between the different sources of administrative law Discuss public administration ID: 554688
Download Presentation The PPT/PDF document "Public Law" is the property of its rightful owner. Permission is granted to download and print the materials on this web site for personal, non-commercial use only, and to display it on your personal computer provided you do not modify the materials and that you retain all copyright notices contained in the materials. By downloading content from our website, you accept the terms of this agreement.
Slide1
Public LawSlide2
Administrative Law
Define administration
Discuss administrative law under the previous and new constitutional dispensations
Distinguish between the different sources of administrative law
Discuss public administration
Discuss lawful, reasonable and procedurally fair administration action
Explain administrative justice in the constitutional sphere
Understand state liabilitySlide3
What is Administrative Law?
Administrative law is defined as the body of law developed to control and administer agency’s powers, limitations and procedures.
Administrative law is that section of public law which governs the organization, powers and actions of the state administration (
Wiechers
)Slide4
What is excluded from Administrative Law?
Powers and functions of the national, provincial and local executive.
Legislative functions of parliament, provincial legislatures and municipal councils
Judicial functions of a judicial officer of a court
Decisions under the Promotion of Access to Information Act 2 of 2000 Slide5
So what exactly is it?
Administrative law forms part of public law in that the relationship between public administration and the individual is based on state authority or the exercise of public power
The execution and performance of the functions and the duties of public administration are governed by the principles of administrative lawSlide6
Administrative Law pre & post 1994
Old Regime
Common law remedies
Approach the administration or judicial review
New Regime
Constitutional right to just administrative action
Judicial reviewSlide7
Sources of Administrative Law
The Constitution
Original & Delegated Legislation
Prerogative Powers
Common Law
African Customary Law
Estoppel
International Law
Foreign LawSlide8
Constitution
Most significant source of administrative law
SA has a system of constitutional sovereignty
Section 2 – any law inconsistent with the Constitution is invalidSlide9
Original & Delegated Legislation
Legislation is easy to enact, amend & repeal
Readily accessible & knowable
Almost all administrative power has a legislative sourceSlide10
Prerogative Powers
Was a source inherited from English law where certain powers vest in the Crown
Most important prerogatives in SA are power to issue passports, conclude State contracts & appoint Commissions of Enquiry
No longer common law prerogative powers in SA
Section 84(1) of Constitution gives President powers necessary to perform functionsSlide11
Common Law
Generally administrative law influenced by Roman-Dutch and English common law
Common law presumptions no longer of significant value as mostly codified in the Constitution and other legislationSlide12
African Customary Law
Can custom create administrative authority?
Prevailing opinion is that officials may not acquire power by usage as this is contrary to the principle of constitutional legalitySlide13
Estoppel
Balancing of public and private interests through estoppel
If citizen relies on representation of an official which turns out to be false the citizen may be prejudiced unless official is held to their representationSlide14
International Law
There are a number of international conventions dealing in human rights
UN Charter
Universal Declaration of Human Rights
Etc
…Slide15
Foreign Law
Section 39(1) of Constitution allows courts to consider foreign law
Opens way for influence of foreign jurisprudence on human rightsSlide16
What is “the Administration”?
Includes the administration of any sphere of government
Organs of State
Public Enterprises
Is generally understood to mean government departments, officials, administrators, institutions and functionaries involved in the day to day running of the stateSlide17
Fair administrative action
Section 33 of the Constitution – gives right to administrative action that is lawful, reasonable and procedurally fair
Lawfulness – must be duly authorised by law & any statutory conditions complied with
Section 1 of the Constitution – supremacy of the Constitution & rule of law – therefore exercise of public power or function that does not constitute an administrative power is still reviewableSlide18
Principle of Legality
Exercise of all public powers must be authorised by law & exercised in accordance with that law
Must not be arbitrary or irrational
Decision maker must act in good faith & not misconstrue powersSlide19
Reasonableness
Reasonable administrative action is rational & proportional
Rationality
Decision must be supported by the evidence & information before the administrator
Proportionality
Balance, necessity & suitability
Appropriate to circumstancesSlide20
Procedural Fairness
Section 33(1)
Fair hearing
Impartial decision maker
Is justice seen to be done?Slide21
State Liability
Sate Liability Act of 1957
The State is liable for unlawful administrative action & for breach of contract
Compensation payable by State to persons suffering loss or damage due to unlawful administrative action or breach of contract