Administrative law is a complex legal area that governs the relationship between government departments and the public in South Africa. It sets out the legal principles, procedures, and powers that control how these departments operate, make decisions, and enforce laws. This guide aims to give you a clear understanding of key concepts in South African administrative law.
Key Players
- Public Entities: These are bodies established by national or provincial legislation to perform specific functions. Examples include the South African Revenue Service (SARS) and the National Environmental Management Agency (NEMA).
- Regulations: Rules created by public entities that have the force of law. These regulations detail how the entity will carry out its legislative mandate.
- Adjudication: The process by which public entities settle disputes between individuals or entities. This often involves hearings presided over by Administrative Hearing Officers.
- Judicial Review: The court’s authority to review the actions of public entities to ensure they comply with the law and act within their granted powers.
Core Concepts
- Reasonableness Review: A legal principle requiring courts to assess whether a public entity’s decision is rational and justifiable in light of the relevant legislation and facts.
- Notice and Comment: A procedural requirement for rulemaking. Public entities must provide public notice of proposed regulations and allow for public comment before finalising them.
- Internal Remedies: The principle requiring individuals to use all appeal processes within the public entity before seeking judicial review.
- Fair Administrative Action: This principle requires public entities to act fairly and lawfully when dealing with individuals or businesses. This includes providing proper notice, a right to be heard, and a right to reasons for decisions.
- Promoted Administrative Justice: A constitutional principle requiring administrative action to be procedurally and substantively just and equitable.
Types of Public Entity Actions
- Regulations: Rules with the force of law that outline public entity procedures and how they will execute their legislative authority.
- Decisions: Rulings issued by a public entity that apply to specific individuals or entities.
- Licences and Permits: Authorisations granted by public entities to allow individuals or entities to engage in specific activities.
Judicial Review Standards
- Rationality Review: A standard for reviewing public entity actions. Courts will overturn an action if it is deemed to be irrational and not by the law.
- Reasonableness Review: Similar to rationality review, courts may also consider the intensity of the consequences and the proportionality of the action.
Important Legislation
- Promotion of Administrative Justice Act (PAJA): A key statute establishing procedural requirements for public entities, including rulemaking, adjudication, and judicial review.
- Constitution of the Republic of South Africa: The supreme law of South Africa, which enshrines the right to fair administrative action.
- Specific Legislation: Each public entity may have its governing legislation that sets out its powers and procedures.
Real-World Examples
- An environmental group challenges the Department of Environmental Affairs’ approval of a mining project under the rationality review standard, arguing the department disregarded the environmental impact assessment.
- A small business owner appeals the denial of a liquor licence by a municipal licensing committee, claiming the committee failed to provide proper reasons for the decision.
- A citizen uses PAJA to request access to information from the Department of Transport regarding a proposed toll road project.
Administrative law plays a vital role in ensuring accountability and fairness in government decision-making in South Africa. By understanding these core concepts, you are empowered to manage interactions with public entities and protect your rights.
In South Africa: In South Africa, the Promotion of Administrative Justice Act gives your business the right to fair treatment and to reasons for a government decision that affects you.
