South African administrative law

South African administrative law is the branch of public law which regulates the legal relations of public authorities, whether with private individuals and organisations or with other public authorities,^[1] or better say, in present-day South Africa, which regulates "the activities of bodies that exercise public powers or perform public functions, irrespective of whether those bodies are public authorities in a strict sense."^[2] According to the Constitutional Court, administrative law is "an incident of the separation of powers under which the courts regulate and control the exercise of public power by the other branches of government."^[3]

Weichers defines administrative law as a body of legal rules governing the administration, organisation, powers and functions of administrative authorities. For Baxter, it is a set of common-law principles which promote the effective use of administrative power, protect against misuse, preserve a balance of fairness and maintain the public interest. Chaskalson describes it as the interface between the bureaucratic state and its subjects.^[4]

From this it may be seen that commentators agree that administrative law is concerned with attaining administrative efficiency, and with ensuring that this power is tightly controlled, so that no abuse may occur. In Pharmaceutical Manufacturers Association of South Africa: In re Ex Parte President of the Republic of South Africa,^[5] it was held that administrative law forms the core of public law. It overlaps with constitutional law because both deal with organs of state and their relationship to individuals. Administrative law differs from constitutional law, however, in its emphasis on a particular branch of government (the public administration) and on a particular activity of the state (administrative action). In President of the RSA v SARFU, the Constitutional Court held that the administration is that part of government which is primarily concerned with the implementation of legislation.

In summary, then, administrative law regulates the activities of bodies that exercise public powers or perform public functions, and even certain private functions exercised by private bodies, but which functions have a public impact (see, for example, Lauren Kohn’s^[6] public/private typology, which is useful in ascertaining when the requirements of administrative justice will likely be found by a court to apply to particular conduct, irrespective of the seemingly private nature of the functions and actors ^[7]).

In short though fundamentally, administrative law both empowers - in the main- administrative officials so that they may implement policies or programs, but it also limits the exercise of their powers by requiring that administrative action meet the minimum requirements of lawfulness, reasonableness and fairness; as well as written reason-giving when applicable.

For contemporary, scholarly insights on South African administrative law, see the legal scholarship of Advocate and Legal Scholar, Lauren Kohn;^[8] and, in particular, for an overview of this fast-evolving field of law, see Kohn and Corder’s Chapter 7 (“Administrative Justice in South Africa: An Overview of Our Curious Hybrid”) in the KAS Publication, “Pursuing Good Governance- Administrative Justice in Common-Law Africa” ^[9]