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Public Law - PowerPoint Presentation

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Public Law - PPT Presentation

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

administrative law public amp law administrative amp public powers state constitution administration section action common power functions constitutional judicial

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Presentation Transcript

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