ADL2601/101/3/2013

Tutorial letter 101/3/2013 Administrative Law

ADL2601

Semesters 1 & 2

Department of Public, Constitutional and International Law

IMPORTANT INFORMATION:

This tutorial letter contains important information about your module.

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CONTENTS

Page

1 INTRODUCTION ............................................................................................................................. 3

2 PURPOSE OF AND OUTCOMES FOR THE MODULE ................................................................ 4

3 LECTURER(S) AND CONTACT DETAILS .................................................................................... 5

3.1 Lecturer(s) ....................................................................................................................................... 5

3.2 Department ..................................................................................................................................... 6

3.3 University ........................................................................................................................................ 6

4 MODULE-RELATED RESOURCES ............................................................................................... 7

5 STUDENT SUPPORT SERVICES FOR THE MODULE ................................................................ 7

6 MODULE-SPECIFIC STUDY PLAN ............................................................................................... 7

7 MODULE PRACTICAL WORK AND WORK-INTEGRATED LEARNING ..................................... 8

8 ASSESSMENT ............................................................................................................................... 8

9 EXAMINATION ............................................................................................................................. 10

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1 INTRODUCTION AND WELCOME Dear Student We are pleased to welcome you to this module and hope that you will find it both interesting and rewarding. We shall do our best to make your study of this module successful. You will be well on your way to success if you start studying early in the semester and resolve to do the assignments properly. You will receive a number of tutorial letters during the year. A tutorial letter is our way of communicating with you about teaching, learning and assessment. Tutorial Letter 101 contains important information about the scheme of work, resources and assignments for this module. We urge you to read it carefully and to keep it at hand when working through the study material, preparing the assignments, preparing for the examination and addressing questions to your lecturers. Please read Tutorial Letter 301 in combination with Tutorial Letter 101 as it gives you an idea of generally important information when studying at a distance and within the College of Law. Administrative law is a “core subject” in the 4-year LLB degree. There is no prescribed textbook, but do not underestimate the content. The amount of work is the same as that in any other law module. The module is inextricably linked to the other four compulsory modules offered in this department, namely Constitutional Law, Fundamental Rights, Interpretation of Statutes and General Principles of Public International Law. The modules in Constitutional Law, Fundamental Rights and Interpretation of Statutes are crucial for a proper understanding of Administrative Law and ideally you should have either enrolled for or have already passed these modules.

In Tutorial Letter 101, you will find the assignments and assessment criteria as well as instructions on the preparation and submission of the assignments. This tutorial letter also provides all the information you need with regard to the prescribed study material and other resources and how to obtain it. Please study this information carefully and make sure that you obtain the prescribed material as soon as possible. We have also included certain general and administrative information about this module. Please study this section of the tutorial letter carefully. Right from the start we would like to point out that you must read all the tutorial letters you receive during the semester immediately and carefully, as they always contain important and, sometimes, urgent information. As a student at a distance learning institution, it is important for you to interact with your lecturers and fellow students. You can, therefore, expect us to make contact with you in study guides and tutorial letters, which will provide you with the information you require for your studies. You can also expect us to give you guidance with regard to the study material and feedback on your performance (e.g. in the assignments). From your side, you must take responsibility for your studies, which includes obtaining the necessary study material, reading your tutorial letters, studying the prescribed study material, and completing and submitting your assignments before or on the due dates. We hope that you will enjoy this module and wish you all the best!

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2 PURPOSE OF AND OUTCOMES FOR THE MODULE The purpose of this module is for students to gain knowledge, skills, attitudes and competencies to analyse and critically evaluate legal material (in the light of the right to just administrative action) to formulate legal arguments and to apply their knowledge to practical problems that may arise due to requirements for valid and fair administrative action.

Outcomes-based learning rationale

The outcomes-based learning model proceeds from the premise that students should acquire certain competencies during their studies. Those competencies refer to knowledge, skills, abilities and other personal attributes. They should help students to achieve the learning outcomes envisaged for the module. Once you have achieved the learning outcomes through the completion of this module, you will also be able to apply those competencies in your work environment and other contexts in which the study topics are relevant.

In law, there are a number of outcomes that a lawyer should achieve. One can say a student is competent if he or she achieves these outcomes successfully. The outcomes for Administrative Law are set out under the next subheading below.

Outcomes and Assessment Criteria for Administrative Law

Outcome 1

To gain sufficient knowledge, skill, attitudes and competencies to analyse and critically evaluate legal material (the Constitution, legislation, case law and academic opinion) directly pertaining to Administrative Law.

In this regard you must be able to

• Identify legal problems and issues relating to administrative law in real or simulated fact scenarios. • Understand terms, rules, concepts, established principles and theories related to administrative

Law. • Demonstrate an awareness of how Administrative Law relates to cognate areas such as

Constitutional Law, Fundamental Rights and Interpretation of Statutes. • Critically analyse and synthesize legal material related to Administrative Law.

Outcome 2

To learn to formulate legal arguments and apply their knowledge to practical problems that may arise in a constitutional state where just administrative action is a constitutionally protected right.

In this regard you will be required to

• Solve well-defined, but familiar problems relating to administrative law using correct procedures and appropriate evidence.

• Present information and communicate reliably and coherently in professionally accepted formats using basic information technology.

• Use legal text skilfully to substantiate arguments and support solutions for specific administrative law issues.

Administrative Law is a field of law which is growing rapidly. Its presence is felt in so many spheres of life that a thorough knowledge (and command) of the principles and rules of this field has become absolutely essential for every prospective and/or practising lawyer. What has contributed immensely to this development is the (some would say unique) express acknowledgment of the right of the individual to “just administrative action” in the 1996 Constitution of the Republic of South Africa’s Bill of Rights. The right to just administrative action grants the individual the right to protection against unlawful administrative action.

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Furthermore, legislation has been adopted to give effect to this right – the Promotion of Administrative Justice Act of 2000 (PAJA).

The historical development of this right is based on the abuse of executive power under the previous constitutional dispensation. (Parliament – the legislature – was at liberty to expand executive power through legislation. It could also, simultaneously and by way of the same legislation, exclude the judiciary's common-law and inherent power of review to control the exercise of such power by means of the so-called “ouster clauses”.)

The inclusion of the right to just administrative action in the Bill of Rights and the adoption of the Promotion of Administrative Justice Act represent efforts to prevent a recurrence of this history, and to exclude the possibility that judicial control of administrative action is handicapped by means of legislative interference.

Having stressed the importance of administrative law, it is nevertheless a moot point whether South Africans in general are aware of the important role played by administrative law in their daily lives. Administrative law plays an important role in the day-to-day business even of companies.

The purpose of this module is firstly to provide students with a sound understanding of the norms and principles of administrative law. We do not advocate parrot-type learning but emphasise the need for a proper understanding of the (often) difficult administrative-law concepts. This does not imply that you will not have to “internalise” (to “internalise” means to make part of oneself through learning) a great deal of the material. You must master the basic principles and mere reading-through of the content of the module, will definitely not suffice.

Secondly, once you have mastered the principles of administrative law, you will be required to apply these principles to actual problems encountered in everyday life.

In order to master and apply these, and indeed any other principles of law, you require skills of reading and understanding. You must also be able to think logically and to present your written work clearly, logically and accurately. For example, when making a statement in court an advocate must always substantiate his/her statement by reference to the Constitution, legislation, common law, and so on.

As you progress with your studies you will see that there are a number of fundamental rules and principles which find application on a daily basis, yet never become the focus of court action. By the end of the semester, when you have successfully mastered the principles of administrative law, you should be able to advise clients on a variety of administrative-law issues, such as the question whether any public activity complies with the requirements for valid administrative action; how one may challenge invalid action; and the remedies against invalid administrative action; and so on. We should point out, at this early stage, that administrative law is not confined to the remedying of invalid administrative action.

3 LECTURERS AND CONTACT DETAILS 3.1 Lecturers

The lecturers for this module are as follows:

Mrs Emile Raubenheimer (Course leader) Cas van Vuuren 7-44 E-mail address: raubee@unisa.ac.za Telephone number: 012 429 8376

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Dr Sue-Mari Maass Cas van Vuuren 7-20 Telephone number: 012 429 2042 Email address: maasss@unisa.ac.za Ms Claudia Malatsi Cas van Vuuren 7-72 Telephone number: 012 429 2496 Email address: malatnc@unisa.ac.za All enquiries about the content of the module and not of a purely administrative nature must be addressed to us. Please have your study material with you when you contact us. PLEASE NOTE: Letters to lecturers may not be enclosed with or inserted into

assignments.

Letters should be sent to: The Module leader (ADL2601) Department of Public, Constitutional & International Law PO Box 392 UNISA 0003

3.2 Department The Department of Public, Constitutional and International Law can be contacted through: Telephone number: 012 429 8339 Fax number: 012 429 8587 3.3 Communication with the university administration If you need to contact the university about matters not related to the content of this module, please consult the publication my Studies @ Unisa, which you received with your study material. This brochure contains information on how to contact the university (e.g. to whom you can write for different queries, important telephone and fax numbers, addresses and details of the times certain facilities are open).

How can students contact Unisa? Unisa website (http://www.unisa.ac.za & http://mobi.unisa.ac.za) All study-related information is now available on the new Unisa corporate website in both web and mobi formats. myUnisa (https://my.unisa.ac.za/portal & https://my.unisa.ac.za/portal/pda) Students can access their own information via the myUnisa website or mobi site. E-mail (info@unisa.ac.za) Students may send an e-mail to info@unisa.ac.za for information on how to contact Unisa via e-mail. SMS (32695 - only for students in South Africa) Students may send an SMS to 32695 for more information on how to contact Unisa via SMS. The sender will receive an auto response SMS with the various SMS options. The cost to the student per SMS is R1,00. Fax (012 429 4150) Students will be able to fax their enquiries to 012 429 4150, whereafter it will be distributed to and processed by the relevant department

Always have your student number ready when contacting the university.

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4 MODULE RELATED RESOURCES 4.1 Inventory letter When you receive your study material, you will receive an inventory letter containing information about your tutorial matter. Check the study material you received against the inventory letter. You should have received all the items specified in the inventory, unless there is a statement like “out of stock” or “not available”. If any item is missing, follow the instructions on the back of the inventory letter without delay. PLEASE NOTE: Your lecturers cannot help you with missing study material. See par 3 above. 4.2 Study material The tutorial material for ADL2601 consists of the following:

One guide (Administrative Law (ADL2601) contains the text of your module in administrative law).

Other tutorial letters – you received 101/3/2013 (which you are presently reading) at registration; you will receive the rest of these (eg 201/2/2013) during the semester. Tutorial letter 301 is a general tutorial letter to all students in the College of Law.

If you have access to the internet, you can view the study guides and tutorial letters for the modules for which you are registered on the university’s online campus, myUnisa, at http://my.unisa.ac.za

4.3 Prescribed material The Constitution of the Republic of South Africa, 1996 You will also need a copy of the Constitution for the modules Constitutional Law, Fundamental Rights and Interpretation of Statutes. You may order a copy of the Constitution from The Government Printer, Publication Section, Private Bag X85, PRETORIA 0001 (tel: 012 334 4500 or fax: 012 323 0009). The price is R5.00 plus postage. [[NNoottee tthhaatt tthhee CCoonnssttiittuuttiioonn mmaayy bbee aacccceesssseedd vviiaa hhttttpp////::wwwwww..ssaafflliiii..oorrgg aass wweellll ((SSaafflliiii iiss tthhee aaccrroonnyymm uusseedd ffoorr tthhee SSoouutthheerrnn AAffrriiccaann lleeggaall iinnffoorrmmaattiioonn iinnssttiittuuttee))]] There is NO PRESCRIBED TEXTBOOK for ADL2601. This means that you do not have to buy any additional books for ADL2601. You need only study your study guide and the tutorial letters. 5 STUDENT SUPPORT SERVICES FOR THE MODULE The important information available to you in the publication my Studies @ Unisa that you received with your study material cannot be over emphasised. Please familiarise yourself thoroughly with all the support services in this publication. 6 MODULE SPECIFIC STUDY PLAN Refer to the my Studies @ Unisa brochure for general time management and planning skills.

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7 MODULE PRACTICAL WORK AND WORK INTEGRATED LEARNING There is no practical work for this module.

8 ASSESSMENT

8.1 Assessment plan For general information and requirements as far as assignments are concerned, see the brochure my Studies @ Unisa which you received with your study material. Assignments are seen as part of the necessary learning material for this module. As you do the assignment, study the reading texts, consult other resources, discuss the work with fellow students or tutors or do research, you are actively engaged in learning. Looking at the assessment criteria given for each assignment will help you to understand what is required of you more clearly.

In some cases, additional assessment might be available on the myUnisa site for your module. For students attending tutorial sessions, tutors may also set additional tasks and give feedback in class.

8.2 Examination admission Two assignments have been set for each semester which are both compulsory. Both must be submitted. The first assignment will gain you admission to the examination, but both will count towards your year mark.

8.3 How will this work in practice?

8.3.1 The compulsory assignments and the year mark

The compulsory assignments will count 20% towards a student’s final mark for the module, 10% for the first assignment and 10% for the second assignment. However you must obtain a subminimum of 40% in the examination, before the year mark is included in your examination mark.

8.3.2 The compulsory assignments and admission to the examination All students who submit the properly attempted compulsory assignments in time (before or on the date of submission), will be admitted to the examination, regardless of the marks obtained for the assignments. In other words, a student who submitted the compulsory assignment 1 but obtained 0%, will be allowed to sit for the examination. Such a student will, however, not have a year mark, unless marks are obtained for the second assignment. Students who do not submit compulsory assignment 1 before or on the due date will not receive admission to write the examination. 8.4 General assignment numbers Assignments are numbered consecutively per module, starting from 01.

8.4.1 Unique assignment numbers See the annexure to this tutorial letter for the unique numbers for each assignment.

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8.4.2 Due dates of assignments First semester: ASSIGNMENT 01: 11 MARCH 2013 ASSIGNMENT 02: 15 APRIL 2013 Second semester: ASSIGNMENT 01: 30 AUGUST 2013 ASSIGNMENT 02: 30 SEPTEMBER 2013 8.5 Submission of assignments Assignments should be addressed to: The Registrar PO Box 392 Unisa 0003 You may submit written assignments and assignments done on mark-reading sheets either by post or electronically via myUnisa. Assignments may not be submitted by fax or e-mail. For detailed information and requirements as far as assignments are concerned, see the brochure my Studies @ unisa that you received with your study material.

PLEASE NOTE: Enquiries about assignments (e.g. whether or not the University has received your assignment or the date on which an assignment was returned to you) must not be addressed to the lecturers. You may find information on myUnisa. To go to the myUnisa website, start at the main Unisa website, http://www.unisa.ac.za, and then click on the ‘login to myUnisa’ link under the myUnisa heading on the screen. This should take you to the myUnisa website. You can also go there directly by typing in http://my.unisa.ac.za.

8.6 Commentaries and feedback on assignments You will receive the correct answers automatically for multiple-choice questions. For written assignments, markers will comment constructively on your work. However, commentaries on compulsory assignments will be sent to all students registered for this module in a follow-up tutorial letter, and not only to those students who submitted the assignments. The tutorial letter number will be 201, 202, etc. As soon as you have received the commentaries, please check your answers. The assignments and the commentaries on these assignments constitute an important part of your learning and should help you to be better prepared for the next assignment and the examination. Additional work set by tutors will be discussed in class.

8.7 Assignments For your convenience the assignments are attached to this tutorial letter. Annexure 1 contains the compulsory assignments for the first semester. Assignment 01 is a written assignment, therefore no mark reading sheet is enclosed. Complete the assignment, enclose the assignment in the official assignment cover and mail it to the Assignment Section in the Unisa assignment envelope. Your assignment may also be submitted electronically. Follow the MyUnisa directions. Under no circumstances must you send your assignment directly to your lecturers.

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Complete assignment 02 as indicated, on the mark reading sheet enclosed, enclose the assignment in the official assignment cover and mail it to the Assignment Section in the Unisa assignment envelope. Your assignment may also be submitted electronically. Follow the MyUnisa directions. Under no circumstances must you send your assignment directly to your lecturers. The assignment will be marked electronically. Annexure 2 contains the compulsory assignments for the second semester. Assignment 01 is a written assignment, therefore no mark reading sheet is enclosed. Complete the assignment, enclose the assignment in the official assignment cover and mail it to the Assignment Section in the Unisa assignment envelope. Your assignment may also be submitted electronically. Follow the MyUnisa directions. Under no circumstances must you send your assignment directly to your lecturers. Fill in the mark reading sheet for Assignment 02, enclose the assignment in the official assignment cover and mail it to the Assignment Section in the Unisa assignment envelope. Your assignment may also be submitted electronically. Follow the MyUnisa directions. Under no circumstances must you send your assignment directly to your lecturers. The assignment will be marked electronically. VERY IMPORTANT!!!

Full references (cases, articles, textbooks) should be given in assignments.

Always make a copy of the assignments before submitting it, in case there are queries about it later.

Please note: Although students may work together when preparing assignments, each student must write and submit his or her own individual assignment. In other words, you must submit your own ideas in your own words, sometimes interspersing relevant short quotations that are properly referenced. It is unacceptable for students to submit identical assignments on the basis that they worked together. That is copying (a form of plagiarism) and none of these assignments will be marked. Furthermore, you may be penalised or subjected to disciplinary proceedings by the University.

Plagiarism is “theft” - you are stealing someone else's ideas OR THE WAY THEY HAVE EXPRESSED THESE IDEAS!! In other words, if you choose to write out the study guide in your answer to an assignment, this is NOT your work – it’s the author’s and YOU WILL GET NO MARKS FOR THIS. The only way that this is acceptable (and then only if it is a short phrase) is if you put our words which you choose to copy in inverted commas ["..."].Think about it - we want to know what YOU know/think, not what we think (we generally know that in any event).

9 EXAMINATIONS 9.1 Examination period This module is offered in a semester period of fifteen weeks. This means that if you are registered for the first semester, you will write the examination in May/June 2013 and the supplementary examination will be written in October/ November 2013. If you are registered for the second semester you will write the examination in October/November 2013 and the supplementary examination will be written in May/June 2014. During the course of the semester, the Examination Section will provide you with information regarding the examination in general, examination venues, examination dates and examination times.

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9.2 Previous examination papers Some previous examination papers are posted on myUnisa. A previous examination paper will be discussed in the second tutorial letter. 9.3 Tutorial letter with information on the examination To help you in your preparation for the examination, you will receive a tutorial letter that will explain the format of the examination paper and set out clearly what material you have to study for examination purposes. At the end of the semester you will write one two-hour paper that counts 100 marks. To be admitted to the exam you must submit the compulsory assignment. To pass you need to obtain at least 50 percent for the paper. We hope that you will enjoy this module and wish you success with your studies. Please contact us if you encounter any problems or difficulties. Mrs Emile Raubenheimer 012 429 8376 Dr Sue-Mari Maass 012 429 2042 Ms Claudia Malatsi 012 429 2496

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Annexure 1

COMPULSORY ASSIGNMENTS (First Semester)

ASSIGNMENT 01 Due date: 11 March 2013 – no extensions! 1. Your unique number is: 235067 2. This number should appear on your assignment cover. The MEC for Roads and Transport, the appointed representative in control of the Department of Roads and Transport in the Gauteng Province, decides to close all taxi routes and the portion of the taxi ranks operated by the Witwatersrand African Taxi Owners Association (WATA). The MEC plans to introduce a new bus service system, which has commonly become known as the Bus Rapid System (BRT). The purpose of the BRT is to improve public transport in the Gauteng Province. WATA is aggrieved by the decision of the MEC and points out that the BTR can be implemented on other routes where no form of transport is available and, furthermore, that the consequence would be that its 1 200 members would be without jobs. WATA has persistently tried to make these representations to the MEC. The MEC has refused to receive their representations and has made no attempt to give reasons for the decision to close all taxi routes and the portion of the taxi ranks operated by WATA. WATA contacts you. Advise WATA on the following and give well-substantiated reasons for your answer.

Does the decision to close all taxi routes and the portion of the taxi ranks operated by WATA constitute procedurally fair administrative action in terms of PAJA? [20]

ASSIGNMENT 02 Due date: 15 April 2013 – no extensions! 1. Your unique number is 255430 2. This number must appear on your mark reading sheet cover. Instructions: 1. Your answer must be completed on a Unisa mark-reading sheet. 2. There are twelve questions. Each question is provided with a number of options as possible

answers. Only one option/statement in each question is correct. You must, therefore, identify the correct option and mark only one of the squares (options) in respect of each question. If you mark more than one square in respect of a specific question, you will receive no mark for the answer to that question.

3. The questions cover study units 1-12 of the study guide.

Marking of the assignment 1. Each answer carries one mark. 2. No mark will be awarded for an incorrect answer.

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3. No mark will be awarded for an unanswered question. 4. The assignment is not marked negatively, that is, marks will not be deducted for incorrect

answers. Question 1

“Organ of state” is defined in section … of the Constitution.

1. 1 2. 33 3. 197 4. 239

Question 2

Which of the following is a characteristic of an administrative law relationship?

1. One of the legal subjects must be an official in one of the national departments. 2. The person in the subordinate position must have been treated unfairly. 3. The organ of state forces the subordinate party to act in a certain manner. 4. The actions of the person clothed in state authority must have been unreasonable.

Question 3

Which one of the following is NOT an organ of state?

1. The Constitutional Court. 2. The Department of Basic Education. 3. The municipal council of Madibeng. 4. The President as head of the national executive.

Question 4

Which one of the following is NOT a binding/authoritative source of administrative law?

1. The Constitution 2. Foreign law 3. Case law 4. International law

Question 5

“Administrative action” is defined in section 1 of PAJA. Which one of the following examples complies with this definition?

1. The Minister of Police decides to continue prosecuting Mrs Radebe. 2. The municipal council of Diepsloot municipality fails to address the housing shortage.

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3. Justice Naidoo holds the Minister of Home Affairs accountable for failing to issue Mr Viljoen’s passport.

4. An officer in the Department of Health decides to appoint Ms Fargan as the architect to design a new state hospital.

Question 6

Just administrative action is regulated in section:

1. 33 of PAJA. 2. 195(1) of PAJA. 3. 239 of the Constitution. 4. 33 of the Constitution.

Question 7

Deconcentration is a form of delegation. Which statement refers to this form of delegation?

1. This type of delegation takes place within an internal hierarchical system where we encounter different ranks of administrators.

2. This type of delegation takes place when a senior administrator makes a decision and then instructs another administrator to implement the decision.

3. In this type of delegation the delegator transfers certain powers and activities to an independent body.

4. An example of this type of delegation is where a minister appoints a board of experts to issue licences.

Question 8

The courts have been hesitant to pronounce on the reasonableness or unreasonableness of administrative action through their powers of review. Judicial intervention was permitted only when the degree of unreasonableness was so gross that something else could be inferred from it. The following court decision illustrates/supports this view:

1. Standard Bank of Bophuthatswana Limited v Reynolds 2. National Transport Commission v Chetty’s Motor Transport 3. Roman v Williams 4. Kotzé v Minister of Health

Question 9

The “rules of natural justice” is a collective term for a number of common law provisions applicable to administrative inquiries and hearings. All of the following form part of the rules of natural justice EXCEPT:

1. The rule against bias or prejudice. 2. The doctrine of legitimate expectation. 3. The individual must be given an opportunity to be heard on the matter. 4. Reasons must be given by the administrator for any decision taken.

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Question 10

Any person whose rights have been materially and adversely affected by any administrative action may request written reasons. Which one of the following statements is correct?

1. The administrator has the discretion to provide the person affected with reasons. 2. The administrator is not obliged to provide the person with reasons if he/she acted in line with the Constitution. 3. The administrator must provide written reasons within 90 days of making his/her decision. 4. The administrator to whom the request is made is obliged to furnish adequate reasons.

Question 11

Which one of the following is NOT an example of or a form of internal control?

1. The Public Protector. 2. Parliamentary enquiries. 3. Judicial review. 4. Chapter 9 (of the Constitution) institutions.

Question 12

Which one of the following is NOT a ground for judicial review in terms of section 6 of PAJA?

1. The action was materially influenced by an error of law. 2. The administrator acted in accordance with provisions relating to time. 3. The action was taken for unauthorised reasons. 4. The action contravenes the law. [12]

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SELF-EVALUATION ASSIGNMENT

You are set this assignment for the purposes of examination revision. It would be a good exercise for examination preparation to spend time doing it carefully.

DO NOT SUBMIT THIS ASSIGNMENT

Mr News Ncube is a journalism student at the Knowledge University. He wrote an article which was carried by the university’s newspaper, The Truth. The article alleged that drug use and prostitution were rife, not only in the university’s humanities faculty, but on the campus as well. Matters were made worse by the fact that the university authorities openly accepted the situation and did nothing about it. Mr Ncube is notified by letter signed by a director of the national Department of Education that he is summarily expelled from the university. Mr Ncube feels that he should at least have been granted the opportunity to defend himself at a hearing before his expulsion.

Mr Ncube approaches you to advise him on the following question. Give reasons for all your answers.

Does the summary expulsion of Mr Ncube without being given any opportunity to be heard before the decision was taken, constitute just administrative action? Take all the requirements for just administrative action as set out in s 33 of the Republic of South Africa Constitution, 1996 into consideration.

[50]

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Annexure 2

COMPULSORY ASSIGNMENT (Second Semester)

ASSIGNMENT 01 Due date: 30 August 2013 – no extensions! 1. Your unique number is: 895522 2. This number should appear on your assignment cover. The MEC for Roads and Transport, the appointed representative in control of the Department of Roads and Transport in the Gauteng Province, decides to close all taxi routes and the portion of the taxi ranks operated by the Witwatersrand African Taxi Owners Association (WATA). The MEC plans to introduce a new bus service system, which has commonly become known as the Bus Rapid System (BRT). The purpose of the BRT is to improve public transport in the Gauteng Province. WATA is aggrieved by the decision of the MEC and points out that the BTR can be implemented on other routes where no form of transport is available and, furthermore, that the consequence would be that its 1 200 members would be without jobs. WATA has persistently tried to make these representations to the MEC. The MEC has refused to receive their representations and has made no attempt to give reasons for the decision to close all taxi routes and the portion of the taxi ranks operated by WATA. WATA contacts you. Advise WATA on the following and give well-substantiated reasons for your answer. Was WATA entitled to reasons? Discuss fully with reference to PAJA, including whether reasons are important or not and why. [20] ASSIGNMENT 02 Due date: 30 September 2013 – no extensions! 1. Your unique number is: 848517 2. This number must appear on your mark reading sheet cover. Instructions: 1. Your answer must be completed on a Unisa mark-reading sheet. 2. There are twelve questions. Each question is provided with a number of options as possible

answers. Only one option/statement in each question is correct. You must, therefore, identify the correct option and mark only one of the squares (options) in respect of each question. If you mark more than one square in respect of a specific question, you will receive no mark for the answer to that question.

3. The questions cover study units 1-12 of the study guide.

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Marking of the assignment Each answer carries one mark. No mark will be awarded for an incorrect answer. 3. No mark will be awarded for an unanswered question. 4. The assignment is not marked negatively, that is, marks will not be deducted for incorrect

answers. Question 1

The concept “organ of state” is defined in the Constitution. Which one of the following is NOT included in the definition?

1. Any department of state or administration in the national, provincial or local sphere of government.

2. Any functionary that exercises a power or performs a function in terms of the Constitution. 3. Any judicial officer that exercises a public power or performs a public function in terms of

the Constitution. 4. Any institution that exercises a public power or performs a public function in terms of any

legislation.

Question 2

A general administrative law relationship is created, changed or ended by …, that is by general means.

1. legislation 2. judicial decision 3. any organ of state 4. the authorised organ of state

Question 3

Which one of the following is NOT an organ of state?

1. The University of Cape Town. 2. The Deputy President. 3. The Premier of Gauteng. 4. The Madibeng sports club. Question 4

An Act of Parliament that complements the provisions of the Constitution and that is crucial to administrative law as well, is the:

1. Promotion of Access to Information Act 2 of 2000 2. Prevention of Administrative Justice Act 3 of 2000 3. Preferential Procurement Policy Framework Act 5 of 2000 4. Public Service Act 103 of 1994 Question 5

When do “true” administrative acts take effect?

1. Once the regulation is promulgated. 2. As soon as the individual is notified.

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3. Once a judge confirms the administrator’s decision. 4. As soon as the administrator takes the decision.

Question 6

Just administrative action is aimed at preventing organs of state, public institutions and functionaries, as well as natural and juristic persons – administrators – from abusing or misusing their power in their dealings with an individual who is in a subordinate position. Hence the constitutional demand that administrative action must be performed: ...

1. proportionally, legitimately and in a democratic manner. 2. lawfully, reasonably and in a procedurally fair manner. 3. timely, cost-effectively and in a transparent manner. 4. effectively, reliably and in a sensible manner.

Question 7

The right to lawful administrative action has been expressly guaranteed by the Constitution in section 33(1). Some writers are of the opinion that this provision is superfluous for a number of reasons. All of the following are reasons for superfluity, EXCEPT:

1. this provision is a restatement of the requirement of legality that all administrative actions must comply with all the rules and principles set by the law

2. this provision is redundant as one of the most important principles underpinning any democratic state is that all organs of state must comply with all law

3. this provision is unnecessary as the key principle of administrative law – and the rule of law in general – is that any exercise of power must be authorised by law

4. this provision serves as a guarantee to prevent and to prohibit the adoption of any laws that will exclude judicial control over administrative action

Question 8

PAJA gives effect to the right to reasonable administrative action by giving an individual the capacity to institute proceedings in a court or a tribunal for judicial review of an administrative action on the ground that:

"The exercise of the power or the performance of the function authorised by the empowering provision, in pursuance of which the administrative action was purportedly taken, is so unreasonable that no reasonable person could have so exercised the power or performed the function". (s 6(2)(h))

Which statement describes s 6(2)(h) accurately?

1. The wording of s 6(2)(h) refers to the subjective state of mind of the administrator and re-introduces gross unreasonableness.

2. The wording of s 6(2)(h) means that courts would only be able to review really bad instances of unreasonableness.

3. The wording of s 6(2)(h) refers to the traditional approach to reasonableness. 4. The wording of s 6(2)(h) refers to administrative action that can be reviewed, if it is an

administrative decision that a reasonable decision-maker could not reach.

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Question 9 In Administrator, Transvaal v Traub the appeal court decided a number of salient points. All of the following form part of the judgment, EXCEPT:

1. the applicability of the rules of natural justice where the affected party has no vested right 2. the right to a fair hearing before a decision is taken where the affected party has no vested

right 3. the right to receive written reasons for a decision taken 4. the recognition of the doctrine of legitimate expectation

Question 10 In what circumstances may the minister identify a group of administrative actions in respect of which the administrator must automatically furnish reasons?

1. When the court specifies that the minister may do so. 2. When a large group of individuals is negatively and adversely affected by the administrative

action. 3. When the administrator requests the minister to do so. 4. When it will be more time and cost efficient as a result of the nature of administrative action

taken.

Question 11 Which one of the following is NOT an example or form of internal control?

1. An interdict. 2. Internal appeal. 3. Tabling of reports by ministers. 4. The South African Human Rights Commission.

Question 12

Which one of the following is NOT a ground for judicial review in terms of section 6 of PAJA?

1. The action taken is not rationally connected to the purpose of the empowering provision. 2. The administrator acted in accordance with provisions relating to time. 3. The action did not comply with the formal requirements relating to administrative action. 4. The administrator exceeded the geographical limits of the powers conferred.

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You are set this assignment for the purposes of examination revision. It would be a good exercise for examination preparation to spend time doing it carefully.

ADL2601/101

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SELF-EVALUATION ASSIGNMENT

DO NOT SUBMIT THIS ASSIGNMENT

Mr News Ncube is a journalism student at the Knowledge University. He wrote an article which was carried by the university’s newspaper, The Truth. The article alleged that drug use and prostitution were rife, not only in the university’s humanities faculty, but on the campus as well. Matters were made worse by the fact that the university authorities openly accepted the situation and did nothing about it. Mr Ncube is notified by letter signed by a director of the national Department of Education that he is summarily expelled from the university. Mr Ncube feels that he should at least have been granted the opportunity to defend himself at a hearing before his expulsion.

Mr Ncube approaches you to advise him on the following question. Give reasons for all your answers.

Does the summary expulsion of Mr Ncube without being given any opportunity to be heard before the decision was taken, constitute just administrative action? Take all the requirements for just administrative action as set out in s 33 of the Republic of South Africa Constitution, 1996 into consideration. [50]