South African administrative law is the branch of public law which regulates the legal relations of public authorities, whether with private individuals and organisations or with other public authorities,Baxter Administrative Law 2. 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."Hoexter Administrative Law 2. 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."[Pharmaceutical Manufacturers Association of South Africa: In re Ex Parte President of the Republic of South Africa]] 2000 (2) SA 674 (CC).
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.Arthur Chaskalson, 'The Past Ten Years: A Balance Sheet and Some Indicators for the Future' (1989) 5 South African Journal on Human Rights 293.
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,2000 (2) SA 674. 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 emphasis 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, and even certain private functions exercised by private bodies, but which functions have a public impact (see, for example, Lauren Kohn’s public/private typology, which is useful in ascertaining when the requirements of administrative justice will likely be found by a court to apply to particular conduct, irrespective of the seemingly private nature of the functions and actors ).
In short though fundamentally, administrative law both empowers - in the main- administrative officials so that they may implement policies or programs, but it also limits the exercise of their powers by requiring that administrative action meet the minimum requirements of lawfulness, reasonableness and fairness; as well as written reason-giving when applicable.
For contemporary, scholarly insights on South African administrative law, see the legal scholarship of Advocate and Legal Scholar, Lauren Kohn; and, in particular, for an overview of this fast-evolving field of law, see Kohn and Corder’s Chapter 7 (“Administrative Justice in South Africa: An Overview of Our Curious Hybrid”) in the KAS Publication, “Pursuing Good Governance- Administrative Justice in Common-Law Africa”
Sources 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.
Constitution The Constitution is the supreme law of the land. Any law or act which is inconsistent with it has no force or effect. The effect of this provision is that laws and administrative acts must comply with the Constitution. The Constitution is binding on the executive branch of government in every sphere of administration. The importance of the Constitution as a source of administrative law was best articulated in Pharmaceutical Manufacturers, where Chaskalson P held that the control of public power by the courts through judicial review is a constitutional matter. The common-law principles that had been applied to control powers prior to 1994 have now been subsumed under the Constitution. As a source of administrative law, the Constitution establishes a variety of agencies and administrative structures to control the exercise of public power.
In Bato Star Fishing v Minister of Environmental Affairs, O'Regan J held that there are not two systems of law regulating administrative action—the common law and the Constitution—but only one system grounded in the Constitution. The courts' power to review administrative action no longer flows directly from the common law, but rather from the constitutionally mandated PAJA and from the Constitution itself. The grundnorm of administrative law is now to be found in the first place not in the doctrine of ultra vires, nor in that of parliamentary sovereignty, nor in the common law itself, but rather in the principles of the Constitution. The common law informs the provisions of PAJA and the Constitution, and derives its force from the latter. The extent to which the common law remains relevant to administrative review will have to be developed on a case-by-case basis as the courts interpret and apply the provisions of PAJA and the Constitution.
Legislation Legislation includes
Acts of Parliament; provincial legislation; by-laws; and regulations, etc.
All these statutes may confer authority to take action and make decisions. For a statute to be valid, it must conform to constitutional requirements.
Provincial legislation Section 125(2)(b) of the Constitution states that the Premier of a province exercises its executive authority, together with the other members of the Executive Council, by implementing all national legislation within the functional areas listed in Schedules 4 or 5 of the Constitution, except where the Constitution or an Act of Parliament provides otherwise.
Local-government legislation Section 151 of the Constitution states that the executive and legislative authority of a municipality is vested in its municipal council. The municipality has the right to govern, on its own initiative, the local government affairs of its community, subject to national and provincial legislation, as provided for in the Constitution.
In Fedsure Life Assurance v Greater Johannesburg Transitional Metropolitan Council, the court found that the imposition of the rates and levies and the payment of the subsidies did not constitute "administrative action" under section 24 of the Interim Constitution. By-laws cannot fall within the definition of administrative action in PAJA; therefore they are not subject to the principles of just administrative action.
Subordinate legislation Subordinate legislative bodies, such as the President, when promulgating proclamations, and ministers, when issuing regulations, do not have original legislative competence and must act within the confines of the enabling legislation. In Minister of Health v New Clicks, Chaskalson stated that the making of delegated legislation by a member off the executive is an essential part of public administration, in that it gives effect to legislative policies. Further, it provides the detailed infrastructure whereby this can take place.
PAJA In Sasol Oil v Metcalfe, Willis held that "PAJA cannot be regarded as ordinary legislation," because it seeks to give effect to fundamental rights contained in the Bill of Rights. Willis described the Act further as "triumphal legislation."
Common law Common law as a source of authority was mainly limited to the prerogative powers. A prerogative is a discretionary power given to someone by virtue of the fact that he holds a particular office. In President of RSA v Hugo, it was held that the common-law prerogative powers no longer exist in South African law as an independent source of power.
The reason for this is that the executive may not have inherent common-law powers which go beyond the ambit of the Constitution. The common law continues to influence administrative law until such a time as it is set aside on grounds of constitutional inconsistency.
Some of the administrative-law principles which have their origin in the common law are now written down in the Constitution or in legislation. The common-law principle of reasonableness, for example, is contained in the Constitution and PAJA.
In Marais v Democratic Alliance, the court found that common laws of procedural fairness and natural justice were applicable to a dispute between a mayor and a political party, even though the dispute itself did not fall under the scope of PAJA. In contrast, however, it was also held that PAJA must first be looked to as the source of law to resolve a dispute. In Pharmaceutical Manufacturers, the court held that the principles that have previously provided the grounds for judicial review of public power have been subsumed under the Constitution; in so far as they might continue to be relevant to judicial review, they gain their force from the Constitution.
International and foreign law The Constitution obliges the courts to consider international human rights. Administrators must recognise international documents which deal with international human rights whenever they are relevant to the administrator's functions, and must act in accordance with these international documents. The courts are not confined to instruments that are binding on South Africa. In S v Makwanyane, the Constitutional Court held that both binding and non-binding international law may be used as a tool of interpretation.
Under foreign law, section 39(1) of the Constitution provides that a court may consider foreign law.This entails comparative jurisprudence. Courts are not compelled to consider foreign law.
History Pre-1994 Prior to 1994, South African administrative law was underdeveloped. The reason for this was that Parliament's surrender of more and more power to the executive. The law was not used to check or to structure these powers. Under this system, the courts could not question the validity of Acts of Parliament. In R v Mchlery, Lord De Villiers held that the courts had no right to enquire into or as to whether the legislature had acted wisely or unwisely for the benefit of the public or individuals.
The procedure for the review of administrative action under rule 53 of Uniform Rules of Court lacked clearly defined guidelines for how administrative action could be assessed. The principle of parliamentary sovereignty implied ministerial responsibility for administrative action. Ministerial responsibility was complementary to judicial review, in that
judicial review is concerned with the legality of administrative action; and ministerial responsibility is concerned with merits of administrative action.
The efficiency of ministerial responsibility was reduced by the imbalance of party representation in the South African Parliament.