ADL2601 Assignment 1 For First Semester, Assignments of Administrative Law

Download ADL2601 Assignment 1 For First Semester and more Assignments Administrative Law in PDF only on Docsity! ADL2601 Assignment 1 1.I Discuss the meaning of an Organ of State as defined in the Constitution of South Africa,1996. Support your answer with reference from the relevant legislation. (Marks 5) The term "organ of state" is defined in Section 239 of the Constitution of the Republic of South Africa, 1996. It refers to various institutions and entities that play a role in the functioning of the state and in carrying out its functions. Here’s a detailed discussion: Definition of an Organ of State Section 239 of the Constitution defines an organ of state as: 1. Any department of state or administration in the national, provincial, or local sphere of government. 2. Any other functionary or institution: ○ Exercising a power or performing a function in terms of the Constitution or a provincial constitution. ○ Exercising a public power or performing a public function in terms of any legislation. Key Elements 1. Departments of State or Administration: This includes government departments at the national, provincial, and local levels. For example, the Department of Health, the Department of Education, and municipal administrations. 2. Functionaries or Institutions Exercising Constitutional or Legislative Powers: ○ These could be bodies established by the Constitution or other laws, like the South African Human Rights Commission or the Public Protector. ○ They must be involved in exercising public power or performing public functions, such as regulatory agencies, public universities, and certain state-owned enterprises. Examples from Legislation ● Public Finance Management Act (PFMA), 1999: This act applies to all organs of state in the national and provincial spheres, illustrating their role in managing public funds and ensuring accountability. ● Municipal Systems Act, 2000: This act governs local municipalities, which are considered organs of state, and outlines their responsibilities in delivering services to communities. Case Law Case law further clarifies the scope and interpretation of what constitutes an organ of state. For example: ● Independent Electoral Commission v Langeberg Municipality (2001): The Constitutional Court held that the Independent Electoral Commission is an organ of state because it exercises public power in terms of the Constitution. ● Chirwa v Transnet Ltd and Others (2008): The court considered Transnet, a state-owned enterprise, as an organ of state because it performs public functions. Conclusion In summary, an organ of state, as defined in the Constitution of South Africa, includes a wide range of entities that perform public functions or exercise public powers. This definition ensures that various bodies involved in the administration and execution of state functions are held accountable and operate within the legal framework established by the Constitution and relevant legislation. This comprehensive definition helps maintain the transparency, accountability, and effectiveness of public administration in South Africa. 1.2 Considering the above facts, list the requirements for just administrative action ( Marks 6 ) In the context of South African law, the requirements for just administrative action are primarily derived from Section 33 of the Constitution of the Republic of South Africa, 1996, and the Promotion of Administrative Justice Act (PAJA), 2000. Here are the key requirements for just administrative action: Section 33 of the Constitution 1. Lawfulness: Administrative action must be authorized by law. This means that any decision or action taken by an organ of state must have a legal basis. 2. Reasonableness: The decision or action must be reasonable. This implies that it should be rational and based on logical reasoning. 3. Procedural Fairness: Administrative action must be procedurally fair. This entails providing affected individuals or parties with a fair hearing and an opportunity to present their case before a decision is made. Promotion of Administrative Justice Act (PAJA) These may include the Public Finance Management Act (PFMA), Municipal Finance Management Act (MFMA), and relevant Treasury Regulations, which outline the requirements and procedures for fair and transparent procurement processes. 5. General Principles of Administrative Law ● Audi Alteram Partem Rule: This principle, which means "listen to the other side," requires that a person or entity affected by a decision must be given a fair opportunity to present their case. ● Legitimate Expectation: If Leballo Constructions and Projects CC had a legitimate expectation based on previous dealings or promises that were not met, they could argue that the decision violated their right to procedural fairness. Summary To challenge the Procurement Manager's decision, Leballo Constructions and Projects CC can rely on the following authoritative sources: 1. The Constitution: Particularly Section 33, which guarantees just administrative action. 2. PAJA: Specifically Sections 3 and 6, which outline procedural fairness requirements and grounds for judicial review. 3. Case Law: Precedents that interpret and apply principles of administrative law, emphasizing lawfulness, reasonableness, and procedural fairness. 4. Procurement Policies and Regulations: Specific regulations governing procurement processes. 5. General Principles of Administrative Law: Including the audi alteram partem rule and the concept of legitimate expectation. By drawing on these sources, Leballo Constructions and Projects CC can build a strong case to challenge the administrative decision on the grounds of it being unlawful, unreasonable, or procedurally unfair. 1.4 Assume that no reasons were given by the Procurement Manager to Leballo Constructions And Projects CC for the cancellation of its contract, what remedy is available to Leballo Constructions and Projects CC if it is not satisfied with the lack of reasons provided by the Procurement Manager? Answer the preceding question in terms of the relevant provision(s) of PAJA. ( Marks 7 ) Under the Promotion of Administrative Justice Act (PAJA), 2000, if the Procurement Manager did not provide reasons for the cancellation of the contract, Leballo Constructions and Projects CC has specific remedies available. The relevant provisions of PAJA address the right to reasons for administrative actions and the procedures to follow if reasons are not provided. Relevant Provisions of PAJA 1. Section 5: Reasons for Administrative Action ● Section 5(1): This section stipulates that any person whose rights have been materially and adversely affected by administrative action and who has not been given reasons for the action may request that the administrator concerned furnish written reasons for the action. ● Section 5(2): The request for reasons must be made within 90 days after the date on which the person became aware of the action or might reasonably have been expected to have become aware of the action. ● Section 5(3): The administrator to whom the request is made must furnish adequate reasons in writing within 90 days after receiving the request. Remedy Available to Leballo Constructions and Projects CC If Leballo Constructions and Projects CC did not receive reasons for the cancellation of its contract, it can follow these steps: 1. Request Written Reasons: ○ Submit a Formal Request: Leballo Constructions and Projects CC should submit a formal written request to the Procurement Manager asking for written reasons for the cancellation of the contract. This request must be made within 90 days of becoming aware of the cancellation. ○ Content of the Request: The request should clearly state that it is being made under Section 5 of PAJA and should specify the administrative action (cancellation of the contract) and the right that has been materially and adversely affected. 2. Await Response: ○ The Procurement Manager is legally obligated to provide written reasons within 90 days of receiving the request. The reasons provided must be adequate and clear enough for Leballo Constructions and Projects CC to understand the basis of the decision. 3. Judicial Review if Reasons Are Not Provided or Are Inadequate: ○ If the Procurement Manager fails to provide reasons within the stipulated 90 days, or if the reasons provided are inadequate, Leballo Constructions and Projects CC can seek judicial review of the administrative action under Section 6 of PAJA. ○ Grounds for Review: The grounds for review could include procedural unfairness due to the failure to provide reasons (Section 6(2)(e)(iii)) or any other relevant ground outlined in Section 6(2) of PAJA, such as the decision being irrational or taken for an ulterior motive. 4. Approach the Court: ○ Leballo Constructions and Projects CC can approach the High Court to compel the Procurement Manager to provide the reasons or to review and set aside the cancellation of the contract due to procedural unfairness. ○ The court may order the Procurement Manager to provide reasons, set aside the decision, or take any other appropriate action. Summary If no reasons were provided by the Procurement Manager for the cancellation of its contract, Leballo Constructions and Projects CC can: 1. Formally request written reasons under Section 5 of PAJA within 90 days. 2. Wait for up to 90 days for the Procurement Manager to provide adequate written reasons. 3. If reasons are not provided or are inadequate, seek judicial review under Section 6 of PAJA on the grounds of procedural unfairness. By following these steps, Leballo Constructions and Projects CC can ensure that its right to just administrative action is upheld.