ADL2601 Exam Papers and Memos From 2012

ADL2601 Exam Papers and Memos QUESTION 1 1.1 Identify the organs of state in the given set of facts. Explain your answers with reference to the constitutional definition of organ of state. (6) In terms of section 239 of the Constitution, the following are organs of state: The Department of Minerals and Energy (any department of state or administration in the national, provincial or local sphere of government) The official who made the decision in the Department of Minerals and Energy (any other functionary or institution (ii) exercising a public power or performing a public function in terms of any legislation) 1.2 Is administrative action in evidence in the set of facts? In your answer, you should give a full definition of the concept “administrative action” with reference to the provisions of the Promotion of Administrative Justice Act (PAJA) 3 of 2000. (13) Section 1 of PAJA defines "administrative action” as any decision taken, or any failure to take a decision, by - (a) an organ of state, when- (i) exercising a power in terms of the Constitution or a provincial constitution; or (ii) exercising a public power or performing a public function in terms of any legislation; or (b) a natural or juristic person, other than an organ of state, when exercising a public power or performing a public function in terms of an empowering provision, which adversely affects the rights of any person and which has a direct, external legal effect. There are exceptions to the definition. These exceptions are, however, not applicable to the given set of facts. The decision to turn down African Silver (Pty) Ltd amounts to administrative action because it complies with the definition in that it involves a decision by an organ of state (the official, the appointed person in the Department of Minerals and Energy) exercising a public power or performing a public function in terms of any legislation which has adversely affected the rights of a person (African Silver (Pty) Ltd)) and which appears to have had a direct external legal effect. 1.3 Do the following actions constitute administrative action? Explain your answers. (i) The enactment of the MPRDA (2) No, it is excluded by section 1(b)(dd) of PAJA. (ii) The decision of the Department of Minerals and Energy to grant African Golden (Pty) Ltd the mineral rights. (2) Yes, it has a direct negative external legal effect (on African Silver) and it was made by an organ of state. (iii) The request for reasons by African Silver (Pty) Ltd (2) No, the request for reasons is not a decision made by an organ of state QUESTION 2 2.1 What is the basis of administrative legality? (3) • A principle used by the courts to determine whether administrative action was not authorised by law only but also performed in accordance with the prescripts laid down by the law. • The public administration must serve and promote the public interest, protect and respect fundamental/human rights. 2.2 Explain the principle of legality in the constitutional framework. (3) • The Constitution is the supreme law of the country and is elevated above all state legislation. Section 2 of the Constitution provides that any law or conduct that is not in line with the Constitution may be declared invalid by the court.