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of public power by the courts through judicial review is a constitutional matter the common law principles that had been applied to control powers prior to 1994 have now been subsumed under the constitution as a source of administrative law the constitution establishes a variety of agencies and administrative structures to control the exercise of public power in bato star fishing v minister of environmental affairs o regan j held that there are not two systems of law regulating administrative action the common law and the constitution but only one system grounded in the constitution the courts power to review administrative action no longer flows directly from the common law but rather from the constitutionally mandated paja and from the constitution itself the grundnorm of administrative law is now to be found in the first place not in the doctrine of ultra vires nor in that of parliamentary sovereignty nor in the common law itself but rather in the principles of the constitution the common law informs the provisions of paja and the constitution and derives its force from the latter the extent to which the common law remains relevant to administrative review will have to be developed on a case by case basis as the courts interpret and apply the provisions of paja and the constitution legislation edit legislation includes acts of parliament provincial legislation by laws and regulations etc all these statutes may confer authority to take action and make decisions for a statute to be valid it must conform to constitutional requirements provincial legislation edit section 125 2 b of the constitution states that the premier of a province exercises its executive authority together with the other members of the executive council by implementing all national legislation within the functional areas listed in schedules 4 or 5 of the constitution except where the constitution or an act of parliament provides otherwise local government legislation edit section 151 of the constitution states that the executive and legislative authority of a municipality is vested in its municipal council the municipality has the right to govern on its own initiative the local government affairs of its community subject to national and provincial legislation as provided for in the constitution in fedsure life assurance v greater johannesburg transitional metropolitan council the court found that the imposition of the rates and levies and the payment of the subsidies did not constitute administrative action under section 24 of the interim constitution by laws cannot fall within the definition of administrative action in paja therefore they are not subject to the principles of just administrative action subordinate legislation edit subordinate legislative bodies such as the president when promulgating proclamations and ministers when issuing regulations do not have original legislative competence and must act within the confines of the enabling legislation in minister of health v new clicks chaskalson stated that the making of delegated legislation by a member off the executive is an essential part of public administration in that it gives effect to legislative policies further it provides the detailed infrastructure whereby this can take place paja edit in sasol oil v metcalfe willis held that paja cannot be regarded as ordinary legislation because it seeks to give effect to fundamental rights contained in the bill of rights willis described the act further as triumphal legislation common law edit common law as a source of authority was mainly limited to the prerogative powers a prerogative is a discretionary power given to someone by virtue of the fact that he holds a particular office in president of rsa v hugo it was held that the common law prerogative powers no longer exist in south african law as an independent source of power the reason for this is that the executive may not have inherent common law powers which go beyond the ambit of the constitution the common law continues to influence administrative law until such a time as it is set aside on grounds of constitutional inconsistency some of the administrative law principles which have their origin in the common law are now written down in the constitution or in legislation the common law principle of reasonableness for example is contained in the constitution and paja in marais v democratic alliance the court found that common laws of procedural fairness and natural justice were applicable to a dispute between a mayor and a political party even though the dispute itself did not fall under the scope of paja in contrast however it was also held that paja must first be looked to as the source of law to resolve a dispute in pharmaceutical manufacturers the court held that the principles that have previously provided the grounds for judicial review of public power have been subsumed under the constitution in so far as they might continue to be relevant to judicial review they gain their force from the constitution international and foreign law edit the constitution obliges the courts to consider international human rights administrators must recognise international documents which deal with international human rights whenever they are relevant to the administrator s functions and must act in accordance with these international documents the courts are not confined to instruments that are binding on south africa in s v makwanyane the constitutional court held that both binding and non binding international law may be used as a tool of interpretation under foreign law section 39 1 of the constitution provides that a court may consider foreign law 10 courts are not compelled to consider foreign law history edit pre 1994 edit prior to 1994 south african administrative law was underdeveloped the reason for this was that parliament s surrender of more and more power to the executive the law was not used to check or to structure these powers under this system the courts could not question the validity of acts of parliament in r v mchlery lord de villiers held that the courts had no right to enquire into or as to whether the legislature had acted wisely or unwisely for the benefit of the public or individuals the procedure for the review of administrative action under rule 53 of uniform rules of court lacked clearly defined guidelines for how administrative action could be assessed the principle of parliamentary sovereignty implied ministerial responsibility for administrative action ministerial responsibility was complementary to judicial review in that judicial review is concerned with the legality of administrative action and ministerial responsibility is concerned with merits of administrative action the efficiency of ministerial responsibility was reduced by the imbalance of party representation in the south african parliament south african administrative law is similar to its english equivalent especially in relation to judicial review of administrative action for this reason british cases are often cited and relied upon by south african courts there are fundamental differences in substance however the conditions composition and politics of south african society were and are different under apartheid parliament had the power to enact whatever it wished however unreasonable and however unacceptable the parliament was not elected by universal franchise the largest section of the population was excluded from representation on grounds of race laws affecting black people conferred extensive powers upon the administration south africa was isolated from the rest of the world so its public law became insular in lunt v university of cape town regarding a refusal to allow a post graduate into medical school the court applied the legitimate expectation doctrine in a contractual setting reform edit as early as the late 1980s there were a number of reform initiatives aimed at reforming the undesirable state of administrative law in south africa most of the reforms were court driven and therefore known as judge made reforms there were limitations however which were embedded in the judicial process judges have no control over cases which come before them so it was difficult to effect a programmatic reform a significant step was the decision in attorney general eastern cape v bloom the president had enacted a set of regulations which for example excluded a detainee from having a fair trial this implied that the president could exclude natural justice the court held that this was a dire mistake and that the president could not exclude procedural fairness this decision clarifies the underlying principle which was incorrectly interpreted in the case of omar v minister of law and order in which it was held that the state president when enacting emergency regulations in terms of the public safety act could excuse the right to a hearing as well as the right of detainees to legal representatives another reform was the recognition of the doctrine of legitimate expectation this came as a result of landmark case of transvaal v traub which extended the applicability of the right to be heard to cases which did not necessarily affect one s liberty property or existing rights the courts also recognised unreasonableness as a ground of judicial review which was expressed in jacobs v waks and reaffirmed in jse v witwatersrand nigel limited where it was held that it is the function of the court to determine what was and what was not relevant to the exercise of discretionary administrative power there were also sporadic initiatives taken by the government but these were limited because there was no incentive for those in power to change administrative law in any meaningful way the south african law review however published reports in 1986 and 1992 which included draft legislation to codify judicial review in sa roads board v johannesburg city council the rigid classification of functions as either administrative or legislative was rejected instead a distinction must be drawn between statutory powers which equally affect the members of a community at large those powers which have a general impact and are calculated to cause particular prejudice to an individual or a particular group of individuals these reforms cleared the way for a new phase of administrative law reform rooted on the principles of democratic rule and constitutional supremacy post 1994 edit before 1994 south africa had embraced the doctrine of parliamentary sovereignty now however the constitution dictates that all exercises of public power be rational justifiable and reasonable the interim constitution provided a bridge from an authoritarian past to a democratic future section 24 of the interim constitution provided that every person shall have the right to lawful administrative action where any of his or her rights or interests is affected or threatened procedurally fair administrative action where any of his or her rights or legitimate expectations is affected or threatened be furnished with reasons in writing for administrative action which affects any of his or her rights or interests unless the reasons for such aon have been made public and administrative action which is justifiable in relation to the reasons given for it where any of his or her rights is affected or threatened section 33 of the final constitution provides that everyone has the right to administrative action that is lawful reasonable and procedurally fair that everyone whose rights have been adversely affected by administrative action has the right to be given written reasons and that national legislation must be enacted to give effect to these rights and must provide for the review of administrative action by a court or where appropriate an independent and impartial tribunal impose a duty on the state to give effect to the rights above and promote an efficient administration lawfulness edit administrators must obey the law and must be authorised by the law for the decisions they make this is the same as the principle of legality it is the authority of an administrator to act the administrator must obey the law whether general or specific and must act within his delegated powers affordable medicines trust v minister of health concerned a challenge to the validity of a licensing scheme introduced by the government the applicants sought an order declaring the invalidity of certain sections of the medicines and related substances act which authorised the director general of health to issue licences to dispense medicines to health practitioners which could result in wide unlimited and uncircumscribed arbitrary legislative powers it was submitted that this was a breach of the principle of legality the challenge raised the question of whether it is permissible for parliament to leave it to the director general to prescribe the conditions on which a licence may be issued it was held that there is nothing preventing parliament from delegating subordinate regulatory authority to other bodies nor is there anything that prevents parliament from conferring upon the director general the discretion to determine the conditions the delegation must not be so broad or vague however that the authority to whom the power is delegated is unable to determine the nature and the scope of the powers conferred as this would lead to arbitrary exercise of delegated powers on the principle of legality the court held that constitutional democracy is founded on the values of the supremacy of the constitution and the rule of law any law or conduct inconsistent with it is invalid the exercise of public power must therefore comply with the constitution which is the supreme law and with the doctrine of legality which is part of that law the constitution entrenches the principle of legality and provides the foundation for the control of public power in exercising the power to make regulations the minister has to comply with the constitution and the empowering provision if he exceeds the powers conferred by the empowering provisions there is a breach of the doctrine of legality in nala local municipality v lejweleputswa district municipality the legality of a meeting at which a decision to investigate alleged irregularities of the applicants was called into question it was held that in line with the principle of legality embodied in the constitution and built into paja administrative action not authorised by an empowering provision is unlawful and invalid and that a person prejudiced by it may have it reviewed and set aside it was held that the meeting did not comply with the requirements of the standard rules and orders and therefore that it was irregularly convened and was therefore invalid in platinum asset management v financial services board the argument was raised by platinum asset management that an authorisation of an inspection of the applicant s business by the registrar in terms of the inspection of financial...