Administrative Action - Administrative Law - Past Paper, Exams of Administrative Law

Download Administrative Action - Administrative Law - Past Paper and more Exams Administrative Law in PDF only on Docsity! UNIVERSITY OF KWAZULU-NATAL, PIETERMARITZBURG EXAMINATIONS: 30 MAY 2011 SUBJECT COURSE AND CODE: ADMINISTRATIVE LAW (LAWS4ALP1) DURATION: 3 HOURS TOTAL MARKS: 75 ___________________________________________________________________ External Examiner: Professor H Corder Internal Examiner: Professor M Kidd ___________________________________________________________________ STUDENTS ARE REQUESTED IN THEIR OWN INTERESTS TO WRITE LEGIBLY ___________________________________________________________________ Please note: This paper consists of 8 (EIGHT) pages. Please ensure you read them all. ___________________________________________________________________ INSTRUCTIONS TO STUDENTS Students are required to answer THREE questions. ___________________________________________________________________ Note: In all questions, unless the question indicates otherwise, you are to assume that the administrative action in question is administrative action as defined in s 1 of the Promotion of Administrative Justice Act 3 of 2000. UNIVERSITY OF KWAZULU-NATAL, PIETERMARITZBURG EXAMINATIONS: 30 MAY 2011 SUBJECT COURSE AND CODE: ADMINISTRATIVE LAW (LAWS4ALP1) PAGE 2 _________________________________________________________________________ Question 1 (a) Sakkie de Kock, a wealthy game farmer from Limpopo province, wants to import six black rhinoceroses from Botswana for his farm. In order to do so, he requires a permit from the Department of Environmental Affairs, in terms of the National Environmental Management: Biodiversity Act 10 of 2004. After submitting the application, three weeks later he receives this letter from the Department: De Kock responds, asking for reasons for the decision, but there is no reply. He approaches you for advice, indicating that he does not know how to take the matter forward as he cannot appeal without knowing why the decision was made. Advise him fully, including reference to applicable case law. Note: Outside strict biological classification, the term ‘pachyderm’ is commonly used to describe elephants, rhinoceroses, and hippopotamuses. (10) Dear Mr de Kock Application for import permit Your application for a permit in terms of s 57 read with Chapter 7 of the National Environmental Management: Biodiversity Act 10 of 2004 for the import of six black rhinoceros (Diceros bicornis) dated 2 February 2011 refers. We regret to inform you that your application for such permit has been declined because of lack of compliance with current Departmental policy on the importation of pachyderms. You have the right to appeal to the Minister in terms of s 94 of the Act. Such appeal must be addressed to the Minister at the above address and reach these offices within 30 days of the date on this letter. Yours faithfully T Mncwabe Dr. T Mncwabe Chief-Director: Biodiversity UNIVERSITY OF KWAZULU-NATAL, PIETERMARITZBURG EXAMINATIONS: 30 MAY 2011 SUBJECT COURSE AND CODE: ADMINISTRATIVE LAW (LAWS4ALP1) PAGE 5 ___________________________________________________________________ Question 2… continued Naicker telephones the NDCA on Tuesday morning and complains that he has no idea what the letter is referring to, but the secretary tells him that he is unable to provide more details but that Naicker ‘better be there’ at 17h00. Naicker arrives at 17h00 with his cousin, Sanjay Perumal, an attorney. Mohammed Jhazhbay, the Chairman of the NDCA, tells Naicker that he is not entitled to legal representation and that Perumal must leave. After some argument, Perumal leaves the hearing. Jhazhbay, who is also a member and past chairman of Colombo CC, chairs the hearing. The only witness is Asif Moosa, the captain of Colombo CC. Moosa testifies that Naicker refused to leave the field when given out (when given out a player is required to leave the field) and abused the umpire when he was eventually persuaded to leave the field by his co-batsman. When Naicker attempts to ask Moosa a question, the chair instructs him that he is not allowed to ask any questions but that he must just provide his side of the story. Naicker’s version is that he queried whether a catch had been taken cleanly and, while the umpires were consulting each other on the fairness of the catch, members of Colombo CC had sworn at him, telling him that he should leave the field. Naicker had, in turn, sworn at the Colombo players before being given out by the umpire, but he stressed that he had not sworn at the umpire. The disciplinary panel finds Naicker guilty and sentences him to a two-game suspension. This is the only information that is provided to Naicker at the hearing, and the panel indicates it will provide reasons in writing in due course. In terms of the NDCA rules, a player found guilty in terms of the rules may appeal to the KwaZulu-Natal Inland Council within two weeks of being informed of the decision. On 19 March, Naicker receives a letter dated 15 March that reads as follows: Dear Mr Naicker This serves to inform you that you have been found guilty of contravening Rule 3(a) of the NDCA rules in that you showed dissent to an umpire. The reason for this is that the panel believed the testimony of Mr Moosa. You are suspended for the following two league games. Yours faithfully Etc. Question 2…/ UNIVERSITY OF KWAZULU-NATAL, PIETERMARITZBURG EXAMINATIONS: 30 MAY 2011 SUBJECT COURSE AND CODE: ADMINISTRATIVE LAW (LAWS4ALP1) PAGE 6 ___________________________________________________________________ Question 2… continued You are required to answer the following questions in respect of the above facts, providing full authority. (a) Is the decision of the NDCA disciplinary panel administrative action in terms of PAJA? Indicate the effect your answer will have on whether a court may review the panel’s decision on the basis of any procedural irregularity. (5) (b) Was the decision of the NDCA panel procedurally fair? Indicate ALL the factors that would be relevant to procedural fairness present in this set of facts and whether the NDCA has satisfied the law in respect of such factors. (20) [25 marks] Question 3 (a) Mrs Dudu Shange is 65 years old. She lives in the Loskop area in the foothills of the Drakensberg mountains. She is illiterate and very poor, supported sporadically by a son who works in Pietermaritzburg. She travels to Estcourt, the nearest reasonably- sized town about once every two years. She applied to the KwaZulu-Natal Department of Welfare for a pension in February 2010. She received a letter in April 2010 indicating that the application was unsuccessful. She approaches you, an Estcourt attorney, in February 2011 asking if she is able to review the decision. Will she be able to do so, despite 180 days having elapsed from the date on which she was informed of the refusal of the application? Explain fully. (Note: this question does not concern the merits of the case, but procedural considerations). (4) (b) Bright Future Investments Ltd made certain investments on behalf of clients, following consultation with the South African Revenue Services (SARS) concerning whether the proceeds of the investments would be regarded by SARS as taxable or not. SARS gave Bright Future the assurance that the proceeds of the investments would be non taxable. Subsequently, SARS sought to recover tax on the proceeds of the investments, without having indicated to Bright Future that its attitude had changed from the assurance given earlier. Bright Future comes to you for advice. The company specifically asks if it possible to seek a court order requiring SARS to comply with its initial assurance not to tax the proceeds of the investments in question. Advise fully. (17) Question 3…/ UNIVERSITY OF KWAZULU-NATAL, PIETERMARITZBURG EXAMINATIONS: 30 MAY 2011 SUBJECT COURSE AND CODE: ADMINISTRATIVE LAW (LAWS4ALP1) PAGE 7 _________________________________________________________________________ Question 3… continued (c) An NGO called Stop the Hilton Landfill Site has lodged an appeal to the MEC of Agriculture and Environment in KwaZulu-Natal in terms of s 43 of the National Environmental Management Act 107 of 1998 against a decision in terms of the Act by the Department of Agriculture and Environment in the province to authorise the establishment of a landfill site in Hilton. The MEC is the official required to decide the appeal in terms of s 43. The NGO receives a document setting out the appeal decision, which upholds the original decision, signed by the MEC. The NGO then obtains information to the effect that the MEC handed the appeal over to an environmental lawyer asking him to make a recommendation on the appeal and, when the MEC received the lawyer’s recommendation, the MEC simply ordered one of the Departmental staff to ‘put the recommendation into an appropriate format’ and then signed this document. Advise the NGO as to whether this decision (the MEC’s appeal decision) can be reviewed. Explain fully. (4) [25 marks] Question 4 (a) You are approached by the Mtunzini Conservancy, which is alarmed that the KwaZulu- Natal Department of Public Works is planning to establish a resort in Mtunzini to be used by KZN cabinet ministers for holidays. Their concern arises from the fact that the plans for the resort envisage the filling in of an important wetland and that the plot on which the resort will be built is the only habitat of the Mtunzini Azure Butterfly. Scientific experts are of the opinion that the butterfly will become extinct if the resort is built on that land. The resort requires authorisation in terms of s 24 of the National Environmental Management Act 107 of 1998 (NEMA), with the provincial Department of Agriculture and Environmental Affairs (DAEA) making the decision. This decision must be made on the basis of a report including an environmental impact assessment, indicating what the likely impacts of the development on the environment will be. The report contains documentation expressing concern as to the wetland destruction and the butterfly’s habitat, but these are given scant attention by the author of the report, an independent environmental consultancy known as EnviroSkills (Pty) Ltd. Question 4…/