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Administrative Law

Administrative Law


South African administrative law is the branch of public law in that country which regulates the legal relations of public authorities, whether with private individuals and organisations or with other public authorities, or better say, in present-day South Africa, which regulates "the activities of bodies that exercise public powers or perform public functions, irrespective of whether those bodies are public authorities in a strict sense." 

According to the Constitutional Court, administrative law is "an incident of the separation of powers under which the courts regulate and control the exercise of public power by the other branches of government."

Weichers defines administrative law as a body of legal rules governing the administration, organisation, powers and functions of administrative authorities. For Baxter, it is a set of common-law principles which promote the effective use of administrative power, protect against misuse, preserve a balance of fairness and maintain the public interest. Chaskalson describes it as the interface between the bureaucratic state and its subjects.

From this it may be seen that commentators agree that administrative law is concerned with attaining administrative efficiency, and with ensuring that this power is tightly controlled, so that no abuse may occur. In Pharmaceutical Manufacturers Association of South Africa: In re Ex Parte President of the Republic of South Africa, it was held that administrative law forms the core of public law. It overlaps with constitutional law because both deal with organs of state and their relationship to individuals. Administrative law differs from constitutional law, however, in its emphasisis on a particular branch of government (the public administration) and on a particular activity of the state (administrative action). In President of the RSA v SARFU, the Constitutional Court held that the administration is that part of government which is primarily concerned with the implementation of legislation.

In summary, then, administrative law regulates the activities of bodies that exercise public powers or perform public functions. It empowers administrative officials so that they may implement policies or programs, and limits the exercise of power by requiring all administrative action meet the minimum requirements of lawfulness, reasonableness and fairness.

Administrative officials derive their authority or jurisdiction from a legal instrument or rule, and may only do what a law authorises them to so. This is known as the principle of legality, which requires that administrative authorities not only refrain from breaking the law, but that all their content comply with the Constitution and particularly the Bill of Rights. The sources of administrative law are, in order of importance,

  • the Constitution;
  • legislation; and
  • the common law.

 



Most recent Administrative Law Articles posted

Highway billboard battle in High Court

The eThekwini Municipality says a massive billboard overlooking the N2 highway is a road safety hazard and it has taken its fight to the courts to have it torn down, notes a report in The Mercury. ‘The distracting effects of advertising create a hazard,’ the municipality’s chief legal adviser, Clement Xulu, said in papers filed in the KZN High Court (Durban).


Judge slams department for ‘unpardonable’ PAIA delay

The independent investigative journalism unit amaBhungane has won a punitive cost order against the Department of Defence in an access to information battle that has spanned four years. An amaBhungane report says it submitted a Promotion of Access to Information Act request for records of all private landings at the Waterkloof airforce base for the 24 months preceding the April 2013 incident where the Gupta family landed an airliner bearing their wedding guests from India.


State again nailed over irrational use of public power

In declaring the nuclear procurement processes to be unlawful, the Western Cape High Court fired yet another warning to government about the irrational use of public power, notes Legalbrief. What the government argued was a decision based on ‘executive policy’, Judge Lee Bosalek, with Judge Elizabeth Baartman concurring, ruled was in fact ‘irrational and unreasonable’ because it ignored the public interest by skirting the requirement for a ‘rational and fair decision-making process’.


SCA rejects would-be medical student's arguments

A student whose application to study at the University of KZN Medical School was rejected by the university has been unable to convince the SCA to overturn the decision. Niekara Harrielall was appealing a ruling by the KZN High Court, notes a News24 report. She wanted the High Court to review and set aside the university's decision because it had failed to properly consider her application.


SCA rules against municipality in R74m tender case

Axed Buffalo City Metro municipal manager Andile Fani has vowed to go after city officials in a bid to clear his name following a scathing ruling by the SCA. A Daily Dispatch report says Fani was suspended and subsequently fired by the metro after it accused him of flouting the Municipal Finance Management Act by appointing Cape Town-based Asla Construction (Pty) Ltd without following proper procurement procedures.


First shots fired in nuke 'state capture' case

The legal challenge mounted by two environmental NGOs to the nuclear deal with Russia – estimated to cost R1trn – which is under way in the Western Cape High Court, has been termed one of the most significant state capture court cases SA has yet seen, according to a Daily Maverick report. The two NGOs, Earthlife Africa and the Southern African Faith Communities’ Environment Institute, are squaring up against Energy Minister Tina Joemat-Pettersson’s pursuit of 9 600 megawatts of nuclear power.





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