Tag archives: Administrative action

When the Master compiles a panel of liquidators it is administrative action

By Patrick Bracher (ZA) on June 9, 2019 Posted in General

One of the functions of the Master of the High Court is to compile a panel of suitable candidates to be appointed as liquidators or trustees of insolvent persons and to remove people who are unsuitable. The adding or exclusion of persons from the panel is administrative action for the purposes of the Promotion of … Continue reading

Administrative law: Legal status of departmental Directive

By Patrick Bracher (ZA) on November 19, 2018 Posted in General

The Department of Home Affairs issued an Immigration Directive which required departmental functionaries to refuse all applications for temporary or permanent residence visas made by the holder of an asylum seeker permit. The court found that the directive was treated as binding by the departmental officials tasked to implement it and it was therefore open … Continue reading

Administrative law: Obligation to exhaust internal remedies

By Patrick Bracher (ZA) on October 29, 2018 Posted in General

The Constitutional Court re-examined section 7(2) of the Promotion of Administrative Justice Act which creates an obligation on applicants for the court review of an administrative decision to exhaust all internal remedies first. The obligation to exhaust internal remedies should not be rigidly imposed nor used by administrators to frustrate an applicant’s efforts to review the … Continue reading

One hundred and eighty day period for court review not extended

By Patrick Bracher (ZA) on October 26, 2018 Posted in General

The supreme court of appeal refused to extend the 180 day period for court review proceedings to challenge administrative action by the Free State Gambling and Liquor Authority because there was no reasonably satisfactory or acceptable explanation for the delay. In the absence of any proper explanation for the delay the court refused to grant … Continue reading

Defiance of law: the collateral challenge defence by Namibian insurers

By Ian Petherbridge on October 16, 2018 Posted in Insurance

Under the correct set of circumstances a party may treat an administrative act as void and await developments, which must not be ‘equated with contumacious disregard for the law by anarchists and legal delinquents’, according to a judgment of the Namibia High Court The judgment stayed the implementation and application of the provisions of the … Continue reading

Administrative action can be reviewed from when it adversely affects a person’s rights

By Patrick Bracher (ZA) on June 12, 2018 Posted in General

The Supreme Court of Appeal decided that a decision by the National Energy Regulator of South Africa to determine gas prices was not reviewable at the stage when NERSA decided on a methodology to determine the prices, but was reviewable when NERSA subsequently determined the prices imposed on customers. In February 2012, NERSA concluded that … Continue reading

Deliberations of Judicial Services Commission must be revealed

By Patrick Bracher (ZA) on May 22, 2018 Posted in General

The Constitutional Court has held that the private deliberations of the Judicial Services Commission in exercising its mandate to appoint judges must be disclosed as part of the record of proceedings when a decision is challenged. The judicial candidates are interviewed in public and this is followed by private deliberations and recommendations to the President … Continue reading

Constitutional Court explains the nature of the right to fair administrative action

By Patrick Bracher (ZA) on November 27, 2017 Posted in General

In an important judgment, the Constitutional Court emphasises that fundamental rights are primarily meant to protect human beings against the state. All the rights contained in our Bill of Rights are very much fundamental rights, including the right to just administrative action enshrined in section 33. South Africa’s administrative law benefits natural and juristic private persons. … Continue reading

Proceedings before enforcement committee under Security Services Act apply civil standard of proof

By Patrick Bracher (ZA) on October 11, 2017 Posted in General

The appellants in Pather v Financial Services Board failed in the suggestion that claims against it of contravention of the Security Services Act 2004 should have been proved by the enforcement committee according to the criminal standard, namely beyond reasonable doubt. The court held that the civil standard applies and that the proceedings and penalty … Continue reading

Procedural irregularity may be fatal to administrative action

By Patrick Bracher (ZA) on September 4, 2017 Posted in General

Where a mandatory and material procedure or condition is overlooked when an administrative decision is made, the omission cannot be ignored on the basis that the outcome was inevitable even if the step was taken. No-one can argue that following the correct procedure would have made no difference. It cannot be known with certainty what … Continue reading

Setting aside CCMA decision for unreasonableness

By Lee Crisp on January 22, 2017 Posted in General

The Constitutional Court has reaffirmed that a decision reached by a commissioner in the CCMA can be set aside if it is one that a reasonable decision-maker could not reach. Applying this test gives effect not only to the constitutional right to fair labour practices, but also to the right to administrative action which is … Continue reading

Administrative decision not immune from collateral challenge

By Patrick Bracher (ZA) on January 25, 2016 Posted in General

Where a public authority seeks to coerce a person into compliance with an unlawful administrative act, that person can challenge the validity of the administrative act. This is called a collateral challenge. The right to challenge the validity of an administrative act collaterally in response to threatened enforcement arises because the validity of the administrative … Continue reading

Cancellation of tender is not administrative action

By Patrick Bracher (ZA) on January 13, 2016 Posted in General

A municipal tender provided that the municipality did not have to accept the lowest tender and was entitled to cancel the tender or reject all tender offers at any time before formation of a contract. It was held in City of Tshwane v Nambiti Technologies (Pty) Ltd that this was not administrative action and could … Continue reading

Regulations made by regulators are subject to court review

By Patrick Bracher (ZA) on September 2, 2014 Posted in General

The courts have again emphasised that where a regulatory body is established by legislation with powers to regulate (e.g. the Financial Services Board), their decision to make regulations is an administrative decision that can be challenged in court. Where the regulations are irrational, unconstitutional or contrary to law or made without proper public consultation they … Continue reading