Public Law N6 - futuremanagers.com

Public Law N6Lecturer Guide

A Kruger

© Future Managers 2016

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Contents

ContentsModule 1 – The concepts of law and Constitutional Law ...............................................................................................1

Module 2 – Historical review of South African Law and the sources of South African Law.........5

Module 3 – Subjective laws .............................................................................................................................................................................9

Module 4 – Classification of law and the different courts ........................................................................................... 11

Module 5 – Legal functionaries and court officials ............................................................................................................. 19

Module 6 – Doctrines of law and the Rule of Law ............................................................................................................. 27

Module 7 – Civil liability of the state ............................................................................................................................................. 29

Module 8 – Administrative Law and the principle of legality ................................................................................ 31

Module 9 – Sources of Administrative Law .............................................................................................................................. 33

Module 10 – Administrative relationships ................................................................................................................................. 37

Module 11 – Internal governmental relations and delegation of authorities ........................................... 39

Module 12 – Administrative proceedings ................................................................................................................................... 43

Module 13 – Judicial control ................................................................................................................................................................... 47

Module 14 – Interpretation of laws .................................................................................................................................................. 49

Module 15 – Aids in the interpretation of laws .................................................................................................................... 51

Practice examination questions and Memoranda .................................................................................................................. 53

Subject Work Scheme and Assessment Plan ............................................................................................................................... 74

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N6 Public Law Lecturer Guide

Module 1

The concepts of law and Constitutional Law

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In this module the student have to differentiate between Public Law and Private Law and give examples of each. They must also understand the concept of Constitutional Law and its rules.

Activity 1 Page 5

1. In your own words, explain what you understand under the concept “law”. All societies and people need laws to ensure peace and order in society. Laws include Acts

of Parliament, laws of nature, science, economy and sport rules and laws.

2. What are the characteristics of law?• Set of rules or regulations that facilitate human interaction• Ensures order in society• Ensure that the law is applied consistently• Laws/rules are interpreted and applied by state institutions such as the police, traffic

officers and courts.

3. Identify all the branches of law in South Africa.• International Law• Public Law

– Constitutional Law– Administrative Law– Criminal Law– Procedural Law

• Private Law– Law of persons/Personal Law– Family Law– Law of personality/Personality Law– Mercantile Law/Commercial Law– Indigenous Law– Law of Patrimony

- Property Law - Law of Succession - Law of Obligation - Law of Intellectual Property

4. Explain what Private Law means. Private law regulates the relationship between two legal bodies.

5. List five divisions of Private Law. See question 3.

6. Explain the meaning of Public Law. Public Law regulates the relationship between the state (government) and a legal subject or

between the state and other states.

7. List three types of Public Law. See question 3.

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Module 1 • The concepts of law and Constitutional Law

8. What is the difference between Private Law and Public Law?

Public Law Private Law

Relationship between state and legal subject Relationship between two legal subjects

9. Explain Constitutional Law as part of Public Law. Constitutional Law determines the:

• nature of the state;• organisation of government bodies;• power and functions of government bodies;• division of authority of the state;• relationship between different state authorities; and• relationship between the state and its subjects (citizens).

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Module 2

Historical review of South African Law and the sources of South African Law

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In the module, the development of the South African Law is explained from its origin of Roman Law in Italy up to the time when South Africa developed its own law from Roman-Dutch Law and British Law.

The students must be able to explain the development of Roman Law and Roman-Dutch Law (one of these are usually in an examination paper). Note that the students often confuse the two.

Activity 2 Page 17

1. Discuss the following legal systems that contributed to the development of the South African legal system

1.1 Roman Law • Roman Law originated in Rome, Italy. • It developed by means of customs that were written down and became laws. • A King and two consultants were elected every year to rule Italy and made the laws. • After that, autocratic caesars took over and ruled Italy and made their own laws. • In 450BC Roman law was codified (written down) in the Law of Twelve Tables • By the 4th century AD the Roman Empire disappeared but the legal system stayed. • Justinus ruled Italy and wrote down the Roman Law with consultation with Catholic church (Corpus Iuris Civilis). • In the 12th century the University of Bologna was established where students from

all over Europe studied Roman Law. • These students took Roman Law to their countries and it spread throughout Europe. • By the 16th century it was also accepted by the Netherlands (Dutch), but Britain

rejected it.

1.2 Roman-Dutch Law • In the 16th century, Roman and Dutch Law merged. • Western European countries combined their own customs (laws) with Roman Law. • Roman Law was received in the Netherlands by the students from Bologna. • A group of jurists (legal officials) wrote down the Roman-Dutch Law. • Roman Law was used where Dutch law did not exist (Roman Law was used for the

cases which they did not have Dutch Law). • That system came to South Africa in 1652 with the Dutch. • This system was taken by the Voortrekkers into the rest of the country. • Roman-Dutch Law was practised in South Africa for 150 years until the British occupation in 1803. • Although the British ruled the country until 1910, Roman-Dutch Law remained the common law.

1.3 British Law • In 1803 Dutch rule in the Cape came to an end with the British occupation. • In 1826, the English government instructed Bigge (the Governor) to examine the legal system used in the Cape Colony. • He recommended that British replace Roman-Dutch Law. • The old Council of Justice was to be replaced by the Supreme Court with British judges. • This attempt was fruitless and in 1934 it was ruled that Roman-Dutch Law was the valid law of colony. • But Roman-Dutch Law was modified with British Law. • British Law contributed to Mercantile Law, Company Law, Insurance Law and Civil Procedure Law. • English textbooks was made available and judges studied in British Law.

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Module 2 • Historical review of South African Law and the sources of South African Law

2. Explain the development of South African Law during the following periods: 2.1 from 1910 to 1948

• On 31 May 1910 South Africa became a Union through the South Africa Act. • A central government and an Appellate Division of the Supreme Court was

established. • All courts were bound by decisions of the Supreme Court. • All differences of the four provinces were eliminated.

2.2 from 1948 to 1961 • From 1948 when the National Party came to power, discriminatory legislation had to be applied by courts. • These apartheid laws never formed part of common law (Roman-Dutch Law or British Law).

2.3 from 1961 to 1990 • When the Republic of South Africa came into being on 31 May 1961, all laws remained valid.

2.4 after 1990 • From 1990, many changes took place in our legal system. • Nelson Mandela was released from prison. • The democratic government elected in 1994 abolished all apartheid laws. • The Constitution with a Bill of Rights was established, which became the supreme law. • All laws made in South Africa must not go against the Constitution.

3. List and explain the sources of South African Constitutional Law. Legislation

• Laws are approved in a legislature (written).• Called Statute law = Parliamentary laws, provincial ordinances and municipal by-laws.• Legislation = legal rules created if nothing existed.• By legislation, security and impartiality is created.• If courts cannot determine the meaning of law, it is declared invalid.

Common law• Rules valid for entire society• Rules affecting our daily lives• It originated from Roman-Dutch and British Law• For example, murder is a crime and must be punished; or if you buy groceries you must

pay for them.• It consists of traditions and habits and other rules affecting our lives

Verdicts (Judicial precedent) • Decisions of courts• All important cases are compiled in book form.• Judges in High courts can deviate from previous verdicts.• The verdict can cause a new legal will under the following: – Interpretation and application of present laws – Declaration of rights where there are no existing rights – Reversing previous verdicts.• Every court must take the verdicts of Higher Courts into account.• Court of Appeal is not bound by its previous verdicts.• Magistrate Courts are bound by verdicts of all Higher Courts.

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Tradition/custom • It must be long established, known for a long time.• It must be reasonable, not against the law or public interest, or unfair.• It must be definite, enough witnesses must prove custom exists.• It must be constantly observed and acknowledge by the community.

International Law/Foreign Law• Relationship between states• Created by international customs and treaties• Cover areas such as: – diplomatic relations, – air traffic, – use of open seas and warfare

4. Discuss the division and execution of government authority as a function of Constitutional Law.

The Constitution is:• is the rules whereby the country is governed;• is compulsory in every country and protects it from other countries;• promotes order within the state;• promotes common interest of the people;• limits government authority;• determines the function of state institutions;• rules the division, classification and organisation of government bodies;• rules the appointment of government institutions.

5. Discuss the wielding and division of government authority in the state as a function of Constitutional Law.• State is defined as a legal person that can enter into contracts.• Characteristics of a state are:

– a community of people;– a certain piece of land (with borders);– authority over the nation (people) by government

• We see the state as a legal person and the state president, ministers and government bodies as organs acting on behalf of the state (legal person).

• the organisation of state determines how authority is divided and wielded.

Module 3

Subjective laws

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Activity 3 Page 22

1. Distinguish between the doctrine of objective sense and subjective right. Objective sense

• Objects that rules our daily lives• All legal rules that regulates society – statutory and common laws• All laws, ordinances and regulations which rule our daily lives• Rules the relationship between persons to ensure an orderly society• Rules regarding transfer of property, marriage, speed limits, functioning of courts• All rules regarding everyday life, commerce and industry• Ensures that we honour contracts (e.g. pay bond)• Ensures that we respect other’s property and privacy

(You have to follow certain rules to pass N6 for example, do assessments and must have 40% in the exam to pass.)

Subjective right• The relationship between a person and an article (for example, right to house, car, etc.)• Person can obtain a subjective right (house) but it’s regulated by objective sense (pay bond).• Four subjective rights:

– Real rights = right to house– Personal rights = performance by others (seller must deliver car if you pay)– Intellectual property rights = copyright or trademark (cannot copy book)– Personality rights = right to good name

• Subjective right gives powers = if I own car, I can use it or sell it.• Subjective rights have limitations = Cannot keep cows in garden of house in a city• Private Law protects subjective right – if right was violated (take car) – you can take legal

action• Have a duty to honour subjective right of person (neighbour cannot build on your property).

2. Explain objective sense as a doctrine of Private Law. See question 1.

3. Explain subjective right as a doctrine of Private Law. See question 1.

4. Subjective rights are distinguished by means of objects regarding certain existing rights. Name and discuss these legal objects of subjective laws.

• Real rights (cases): physical material things, for example, house/car– Called Property Law

• Personal property (personality rights): Your character, good name– Called Personality Law

• Intellectual property: spiritual creation of human mind and human creativity– Examples: inventions, trademarks, copyright, words of a song

• Performance (personal rights): see question 5

5. Briefly explain performance as an object with regard to traditional theory of subjective laws.• Performance means human conduct• Law on performance is called the law of demand• Is a contract between two parties where one (A) will perform a task for payment by (B): – B can demand that A finish the job before payment; – B has to pay A if he finished the job; – This include appointment contracts.

Module 4

Classification of law and the different courts

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Activity 4 Page 37

1. Use a diagram to identify the different types of law found in South Africa.

INTERNATIONAL LAW NATIONAL LAW

Adjective Law:– Law of Criminal Procedure– Law of Civil Procedure– Law of Evidence– Legal interpretation

PUBLIC LAW:– Constitutional Law– Administrative Law– Criminal Law– Procedural Law

PRIVATE LAW:– Law of Persons– Family Law– Law of Partrimony– Law of Personality– Indigenous Law– Mercantile Law

THE LAW

Material Law(Substantive Law)

2. Distinguish between Public Law and Private Law.

Public Law Private Law

Relationship between state and legal subject Relationship between two legal subjects

3. List the different divisions of Public Law and discuss each briefly.Constitutional Law determines the:– nature of the state;– the organisation and establishment of state organs, e.g. Parliament, courts, etc.– the composition and powers of legislative, executive and judicial bodies;– the authority of these state organs;– the power and functions of office-bearers, e.g. president, ministers, premiers, etc.– the relationship between the different organs of the state; and– the relationship between the state and its subjects through the Bill of Rights.

Administrative law:– controls the administration of the state in general;– determines the way in which the state exercise its executive powers;– controls the way in which the policies are carried out by executive state bodies;– tries to prevent that the executive bodies do not exercise their powers arbitrarily.

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Module 4 • Classification of law and the different courts

Criminal Law:– determines which acts of subjects (people) will be deemed a criminal offence;– which punishment should be conflicted on a guilty verdict.

Procedural Law:– part of public and Private Law and determines procedure followed in a court;– organises the relationship between the court and the suitor;– lays down the procedure that the suitor must follow in court.

International Law:– Deals with the relationship amongst states, for example:– law of war/peace;– protection of air space;– use of open sea space.

4. List the different divisions of Private Law and discuss each briefly. Personal Law:

• determines the legal status of a person;• determines competence of the person to be the bearer of rights and duties;• is based on age, gender, etc.;• states that a child younger than 18 cannot sign a contract, but can inherit.

Family Law:• orders the relationship amongst members of a family;• for example, valid marriage, procedure for dissolution of a marriage (divorce);• orders the relationship between parents and child.

Personality Law:• relationship between individual regarding their personality goods or good name;• protects a person’s personality against violation by others;• if another person violate a person’s personality, can claim sentimental damages.

Property Law:• Relationship between people and their property;• Total of a person’s assets and liabilities;• Includes moveable and immovable property.

Law of Commitment/Obligation:• Where one person has a right against another for performance who must perform;• Responsibility of husband/father to support his wife/children.

Law of Intellectual Property:• Deals with spiritual of psychological creations of human mind;• Issues such as trademark, copyright, words of a song, etc.

5. Identify the different divisions of Procedural Law and if it falls under Private Law or Public Law.• Criminal Procedural Law (part of Public Law)• Civil Procedural Law (part of Private Law)• Law of Evidence (proof ) (part of Public and Private Law)

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6. Law of Patrimony regulates the relationship between persons with respect of their estate. Identify the divisions of Patrimony Law and discuss each briefly.• Property Law:

– deals with the relationship between persons with respect to things;– determines the rights persons have with respect to their movable and immovable

property;– regulates the origin, termination and protection of such rights.

• Law of Succession:– deals with a person’s estate after his/her death;– If no will exists, the Law of Interstate Succession will determine who will inherit

the estate.

• Law of Obligations/Law of Commitment:– regulates the relationship where one person (creditor) has a right against another for

performance; and– the other person (debtor) has a duty to perform;– the responsibility of a husband/father to support his wife and children;– Contracts and depicts (unlawful acts causing damage) create obligations.

• Law of Intellectual Property:– deals with the relationship between persons with respect to intellectual property

which is: - the spiritual or psychological creations of the human mind; - is products of human creativity such as art, trademarks, copy rights, etc.

7. Identify the higher courts in the South African legal system.• Constitutional Court• Supreme Court of Appeal• High Court• Special High Courts

– Land Claims Court– Income Tax Court– Labour Court of Appeal

8. Identify the lower courts in the South African legal system.• Magistrate’s Court• Water Court• Divorce Court• Equality Court• Chief ’s Court• Regional Court• Small Claims Court• District Courts• Children’s Court/Juvenile Court• Maintenance Court• Sexual Offences Court

9. Distinguish between a criminal case, a civil case and a constitutional case.• Criminal case deals with an offence committed and possible sentence.• Civil case deals with damages and the amount to be paid.• Constitutional case deals with whether a matter is constitutional or not.

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10. Explain the following with relation to the Constitutional Court of South Africa; 10.1 The composition of the Court

• The Constitutional Court consist of 11 members. • President of Constitutional Court is appointed by the President of South Africa after consultation with the Cabinet and Chief Judge. • Other judges are appointed from a list from the Judicial Service Commission:

– This list must contain competent, independent and able people and have ten names. – To be on list, persons must be a Supreme Court judge; OR – qualified to practise as a lawyer/advocate with 10 years’ experience; OR – have taught law at university for 10 years. – Four are appointed from Supreme Court judges by the president after consultation with Cabinet and Chief Judge – Person must have applicable Constitutional Law knowledge;

• Members represented of race and gender.

10.2 The jurisdiction of the Court/ability regarding constitutional matters • The Constitutional Court is the highest authority regarding Constitutional matters. • Consider matters regarding interpretation, protection and enforcement of the Constitution. • Decide if any laws/bills of Parliament or provincial legislators are unconstitutional. • Decide whether the conduct of an executive organ is unconstitutional. • Decide on disputes between government bodies (e.g NA and NCOP). • Decide if particular matters falls in its jurisdiction • A Constitutional Court decision cannot be appealed in the Supreme Court of Appeal. • Divisions of High Court have same abilities as the Constitutional Court in their jurisdiction but not regarding:

– validity of laws/bills of Parliament – disputes between central government bodies.

10.3 The functioning of the Court • Constitutional Court does not hear evidence or question witnesses. • It considers evidence from other courts or cases presented to them. • They work with written documents/arguments. • They analyse the documents and prepare judgement. • When all evidence has been considered, judges discuss outcome. • Each judge give his/her decision and ruling is made by majority vote. • The reasons for their decision are published. • Constitutional Court sessions are from 1 Feb–31 March; 1–31 May, 1 Aug–30 Sep and 1–30 Nov.

11. Discuss the jurisdiction of the following courts in South Africa: 11.1 Supreme Court of Appeal

• Not a criminal court and cases cannot start here • Functions are to:

– hear appeals from criminal and civil cases from the High Court – impose any sentence and make any order on legal points from lower court

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• Legal capacity: – maintains an appeal (stay with decision of the High Court); – delivers verdicts on what should have happened during a court case; – decides on appeals on constitutional matters from the High Court; – declares an Act or conduct of an office-bearer unconstitutional if confirmed by the Constitutional Court.

11.2 High Court • Has jurisdiction to hear any criminal or civil case and a case can start in this court; • Deals with criminal cases with prison sentence of 15 years or more and fines of R300 000 or more; • Deals with civil claims of more than R100 000; • Deals with matters concerning wills; • Can decide constitutional matters in its jurisdiction except matters that are dealt with only by Constitutional Court; • Can review and hear appeals from criminal and civil cases from lower courts; • Can hear matters concerning a person’s status (adoption/insolvency).

12. Identify three special High Courts in South Africa and briefly explain their jurisdiction.

Circuit CourtsCircut Courts are also part of the High Court. They sit at least twice a year, moving around to serve more rural areas. They can be contacted through the High Court.

Special Income Tax CourtsThe Special Income Tax Courts sit within divisions of the High Court and consists of a judge of the High Court assisted by an accountant of not less than 10 years’ standing, and a representative of the business community.

This court deals with any disputes between a taxpayer and the South African Revenue Service, where the dispute involves an income tax assessment of more than R100 000. Appeals against its decisions are made directly to the Supreme Court of Appeal. Tax disputes involving an assessment of less than R100 000 go the Tax Board.

The Tax Board is chaired by an attorney, advocate or accountant who works in the private sector and is specifically appointed by the President to assist as chairman of the Board. You can contact the Special Income Tax Court through the High Court and the Tax Board through the South African Revenue Service.

Labour Courts and Labour Appeal CourtsThe Labour Courts have the same status as a High Court. The Labour Courts adjudicates matters relating to labour disputes between an employer and employee. It is mainly guided by the Labour Relations Act which deals with matters such as unfair labour practices for example dismissing an employee without giving notice. The Labour Court can order an employer or employee or union to stop committing an unfair labour practice. It can give jobs back to employees who have lost their jobs unfairly, and so on. The Labour Appeal Court hears appeals against decisions in the Labour Court and this is the highest court for labour appeals.

You can contact the Labour court through the High Court or by visiting the Labour Courts website.

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Divorce CourtsDivorce Courts hear any matters relating to divorce. If you need to apply for a divorce, you can visit a Magistrate’s Court in your area.

Land Claims CourtThe Land Claims Court specialises in dealing with disputes that arise out of laws that underpin South Africa’s land reform initiative. These are the Restitution of Land Rights Act, 1994, the Land Reform (Labour Tenants) Act, 1996 and the Extension of Security of Tenure Act, 1997. The Land Claims Court has the same status as the High Courts. Any appeal against a decision of the Land Claims Court lies with the Supreme Court of Appeal, and if appropriate, to the Constitutional Court. The Land Claims Court can hold hearings in any part of the country if it thinks this will make it more accessible and it can conduct its proceedings in an informal way if this is appropriate, although its main office it in Randburg. You can contact the Land Claims Court in Randburg:

Physical Address: Trust Bank Centre Randburg Mall Corner of Hill Street and Kent avenue Randburg 2194

Postal Address: Private Bag X10060 Randburg 2125Tel: 011 781 2291Fax: 011 781 2217/8E-mail: [email protected]

The Water TribunalThe Water Tribunal is an independent body which has jurisdiction in all the provinces and consists of a chairperson, a deputy chairperson, and additional members. It has jurisdiction over water disputes. Members of the Water Tribunal must have knowledge in law, engineering, water resource management or related fields of knowledge. They are appointed by the Minister on the recommendation of the Judicial Service Commission, the body which chooses judges. The Water Tribunal replaced the Water Court in 1998. You can contact the Water Tribunal through the High Court.

13. Discuss jurisdiction and function of the following lower courts in South Africa: 13.1 Magistrate’s Court

• Deals with less serious criminal and civil cases; • Can sentence a person to a maximum of 3 years in prison; • Can impose a fine of R100 000.

Cannot deal with: • murder, rape, treason, terrorism; • divorce; • wills; • matters related to a person’s mental ability.

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13.2 Small Claims Court Cases that can be heard:

• Repayment of monies up to R15 000; • The delivery of movable or unmovable property up R15 000; • The eviction of an occupier of premises if rent is in arrears for up to R15 000; • Form a credit agreement amounting up to R15 000; • Any damages up to R15 000.

Cases not heard in Small Claims Court (matters excluded): • Claims exceeding R15 000; • Claims against the state; • Dissolution of marriages (divorce); • Validity or interpretation of wills; • Claims concerning the status of a person; • Malicious persecution (break-ins); • Breach of promise of marriage.

13.3 Chief and Headman’s Court • Deals with customary issues in terms of customary law; • Chief (headman) or his deputy may decide cases using indigenous law and custom; • Case of African against another African within his area of jurisdiction, for example, disputes over ownership of cattle or lobola.

The procedure in traditional Chief ’s Courts is as follows: • It is an informal and simple court procedure; • No legal representation is allowed; and • A traditional leader presides over the proceedings.

14. Identify four other lower courts and briefly explain each one’s function. Water Tribunal/Water Court

• Independent body which has jurisdiction in all the provinces and consists of a chairperson, a deputy chairperson, and additional members;

• Can hear disputes concerning the use and allocation of water resources; • Appeals against decisions of the Water Tribunal are referred to the High Court.

Divorce Court • Has concurrent jurisdiction with the relevant High Courts regarding divorce.

Equality Court • Deals with complaints about unfair discrimination, hate speech or harassment.

Children’s Court (Juvenile Court) • Child Justice Act (CJA) aims to set up a child justice system for children, under the age of 18, who are suspected to have committed a crime. • The CJA states that:

– A child under the age of 10 years does not have criminal capacity and cannot be arrested and charged for an offence. In such a case, the child will be referred to the Children’s Court.

– A child older than 10 years but younger than 14 years is presumed to lack criminal capacity unless the state proves that he/she has criminal capacity. Such a child can be arrested. – A child above 14, but under 18 years of age, is said to have criminal capacity and can be arrested.

Module 5 • Legal functionaries and court officials

Module 5

Legal functionaries and court officials

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Activity 5.1 Page 48

Identify the following legal functionaries in South Africa:1. National Director of Public Prosecution Shaun Abrahams

2. Directors of Public Prosecution for the various High Courts

Dr Silas RamaiteDeputy National Director of Public Prosecutions

Mr Bradley Smith Senior Deputy Director of Public Prosecution

Ms Lebo Baloyi Senior Deputy Director of Public Prosecution

Ms Karin Vorster Senior Deputy Director of Public Prosecution

Ms Trish Matzke Senior Deputy Director of Public Prosecution

Adv AndrewChauke

Director – SouthGauteng

Adv Sibongile Mzinyathi

Director – North Gauteng

Adv Barry MadoloDirector – Mthatha

Adv Ivy Thenga Director –

Northern Cape

Adv Moipone Noko Director –

KwaZulu- Natal

Adv Lungisile Mahlati Director

– Grahamstown

Adv Rodney de KockDirector –

Western Cape

Adv Xolisile Khanyile Director –

North West

3. Master of the High Court

National Office Chief Master: Adv L Basson

Master of the High Court: Bloemfontein: Master: Mr Jan du Plessis Master of the High Court: Bhisho: Master: Mrs Nothemba Mpongoshe Master of the High Court: Cape Town: Master: Ms Z Agulhas Master of the High Court: Durban: Master: Ms Varsha Sewlal Master of the High Court: Grahamstown: Master: Mr SS Moodley Master of the High Court: Johannesburg: Master: Mr L Pule Master of the High Court: Kimberley: Master: Mr Craig Davids Master of the High Court: Mafikeng (Mmabatho): Master: Mr M Modibela Master of the High Court: Mthatha (Umtata): Master: Mr SC Jozana Master of the High Court: Nelspruit: Master: Adv. B Masuku Master of the High Court: Pietermaritzburg: Master: Ms Seetarani Gangai Master of the High Court: Polokwane: Master: Ms FP Mugivhi Master of the High Court: Port Elizabeth: Master: Ms EA Daniels Master of the High Court: Pretoria: Master: Ms N Sigcau Master of the High Court: Thohoyando: Master: Mr TC Rambauli

4. The Registrars of the different High Courts in South Africa

Registrars of High Courts: Eastern Cape: Bisho T Mafala Grahamstown: Mr D Kroqwana Mthatha: Mr S Qalami P.E.: Mr F Fini

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Free State: Bloemfontein: Ms Oshenia M Jingose South Gauteng: Johannesburg: Mr V Pather North West: Mafikeng (Acting) Mr T Selebogo Humeleng Limpopo: Thohoyandou Khathu Madzhiga Northern Cape: Kimberley Mr C Conradie North Gauteng: Pretoria Mr S D Mniki Polokwane: Ms M S Tsweleng Western Cape: Cape Town Ruanne David KZN: Durban NakoNonkcubeko Pietermaritzburg: Ms N Fente

5. Identify the various State Attorney offices and the State Attorney in charge of the office

Bhisho/East London (EC) Head of Office: Mr W Human (Acting) Tel: 043 706 5100 Fax: 043 722 0926/742 4748 Postal Address: Private Bag X 9082, EAST LONDON, 5200 Physical Address: Old Spoornet Building, 17 Fleet Street, East London (Opposite the East London Fire Station) with effect from 2 January 2013.

Bloemfontein(FS) Head of Office:Mr A. Seale Tel: 051 400 4300 Fax: 051 4004 341 Postal Address: Private Bag x 20630, Bloemfontein, 9300 Physical Address: Fedsure Building, 11th Floor, 49 Charlotte Maxeke Street, Bloemfontein, 9301

Cape Town (WC) Head of Office: Ms M.J. Luter Tel: 021 441 9200 Fax: 021 421 9364 Postal Address: Private Bag X9001, Cape Town, 8000 Physical Address: 4th Floor, 22 Long Street, Cape Town, 8001

Durban (KZN) Head of Office: Mr K. Govender Tel: 031 365 2500 Fax: 031 306 2448 Postal Address: Private Bag x 54301, Durban, 4000 Physical Address: 6th Floor , MetLife Building, 391 Anton Lembede Street, Durban, 4000

Johannesburg (GP) Head of Office: Mr K. Lekabe Tel: 011 330 7600 / 7602 Fax: 011 333 4856 Postal Address: Private Bag x 9, Johannesburg, 2000 Physical Address: 12th Floor, North State Building, 95 Market Street (C\O Kruis Street), Johannesburg, 2001

Kimberley (NC) Head of Office: Ms N Gcilitshana Tel:053 807 7800 Fax:053 807 7806/ 086 516 5563 Postal Address: Private Bag X5034, Kimberley, 8300 Physical Address: Cnr Lennox & Chapel Streets, 1st Floor, Woolworths Building, Kimberley, 8300

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Mahikeng (Mafikeng) (NW) Head of Office:Mr J.F. Zwiegelaar Tel: 018 384 0298 / 018 384 0324 / 018 384 0315 / 018 384 0161 / 018 384 0269 Fax: 018 384 0388 / 018 384 0383 Postal Address: Private Bag X51, Mmabatho, 2735 Physical Address: First Floor, East Gallery, Mega City Complex, Cnr Sekame Road & Dr James Moroka Drive, MMABATHO, 2735

Mthatha (EC) Head of Office (Acting): Mr S Tshitshi Tel: 047 502 9900/9918 Fax: 047 531 1009 DOCEX: 23 Postal Address: Private Bag X5259, MTHATHA, 5099 Physical Address: Broadcast House, 94 Sisson Street, Fort Gale, MTHATHA, 5100

Polokwane (LP) Head of Office: Mr Molefi Motshabi Tel: 015 291 3608 Fax: 015 291 4894 Docex: DX 052, Polokwane Postal Address: Private Bag X 9705, Polokwane, 0700 Physical Address: Fermic Building, 65A Landros Mare’ Street, Polokwane, 0700

Port Elizabeth (EC) Head of Office:Mr R.A.L. Crozier Tel: 041 585 7921 Fax: 041 585 2687/ 086 629 4688 / 086 644 5122 Postal Address: Private Bag x 6046, Port Elizabeth, 6000 Physical Address: 29 Western Road, Central, Port Elizabeth, 6001

Pretoria (GP) Head of Office: Mr TT Tshivhase (Acting) Tel: 012 309 1500 Fax: 012 309 1649 Postal Address: Private Bag x 91, Pretoria, 0001 Physical Address: Old Mutual Centre, 8th Floor, 167 Andries Street, Pretoria, 0001.

Thohoyandou (LP) Head of Office: Mr Chuene Tel: 015 962 2238 Fax:015 962 1175 / 086 629 2241 Postal Address: Private Bag x 5085, Thohoyandou, 0950 Physical Address: High Court Building, Mphephu Drive, Old Parliament Building, Ground Floor, Thohoyandou, 0950

See more at: http://www.justice.gov.za/contact/cnt_stateatt.html#sthash.kp0kWugB.dpuf

6. The President of the Supreme Court of Appeal President: Hon L Mpati Deputy President Hon M S Navsa (Acting)

7. The Magistrate/s in the area where you live Each area to find own magistrate

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8. The Registrar of Deeds in your area or area closest to where you live Chief Registrar of Deeds: Pretoria: Ms Carlize Knoetsen Acting Registrar of Deeds: Mr Magheku Registrar: Bloemfontein: David Mngcolwani Western Cape: Mr Kasavel Pillay Northern Cape: Mr Kasavel Pillay Johannesburg: Ms Makaziwe Mahlangu Kimberley: Ms Unita Frazenburg King Williams Town: Mr Johann Badenhorst Mpumalanga: Mr Rendani Mukhakhululi Pietermaritzburg: Mr Sifiso Nzuza Mthatha: Mr Nkululeko Mantanga North West Ms Mosenki Lemme Pretoria: Adv Audrey Gwangwa

9. The Registrar of Companies www.registercompanies.co.za will give all necessary information.

10. The President of the Constitutional Court Chief Justice Mogoeng Mogoeng

Activity 5.2 Page 48

1. Discuss the functions and responsibilities of the following legal functionaries in South Africa:

1.1 National Director of Public Prosecution • Chief State Prosecuter in Higher Courts; • Decides whether a case is going to be prosecuted or not; • NDPublic Prosecutor cannot prosecute all cases and may refer cases to other courts; • Serious trials (case) the NDPublic Prosecutor will prosecute himself; • Refer case to the various High Courts.

1.2 State Attorney • Handle matters for the state represents the state in trials and defends the state; • Matters of central government and provincial legislators; • Does same work as ordinary attorney, but only for the state; • Compile documents, contracts, receive monies and acts in civil and criminal court cases for the State; • May act for a foreign power when on agreement between South Africa and another state is reached.

1.3 Master of the High Court • Handles deceased estates in his judicial area; • Ensures all documents and formalities are processed and the estate divided according to last will; • If disputed, the duty of the Master is to decide, for example, heirs cannot be found, meaning not clear; • Interest of all concerned must be protected, especially minors or unborn children; • If both parents of a minor dies, a trustee is appointed; • Supervision of trusts; • Deals with insolvent persons; • Supervises the administration of companies and close corporations.

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1.4 Registrar of Deeds • Registers immovable property in name of new owner; • Registers mortgages (money by bank to buy house); • Cession of registered mortgages (paid of bank loan); • Registers lease-holds or long leases and cancellations; • Anti-nuptial contracts (marriage contracts); • Deeds of lease and mineral rights awarded by government; • Personal or land servitudes; • Sub-letting and notarial deeds; • General plans of land and plots; • Notarial prospecting contracts.

1.5 Public Protector The Public Prosecutor will investigate if it is suspected that:

• state funds were distributed illegally; • maladministration by officials or the abuse of power; • somebody was illegally and improperly, directly or indirectly enriched or disadvantaged:

– in connection with matters of the state; – by a government employee; – at the cost of the state.

• If matter is reported, the Public Prosecutor must immediately start investigation and report it:

– to the leader of Parliament; – within 7 more days to the Speaker of Parliament; – Speaker must inform Parliament within 7 days after start of next session.

• If Public Prosecutor feels a crime was committed, he/she can inform the NDPP to prosecute.

1.6 Magistrate • Presiding officers at the lower courts; • Are civil servants who started their career as a Public Prosecutor; • Must have a law degree or diploma; • Takes an oath but they are not immune to criminal and civil suits.

1.7 Clerk of the Court Their duties are to: • issue procedural documents; • receive fines; • take exhibits into safekeeping; • display exhibits in court as evidence; • collect fines; • manage general administration in court; • not take part in court proceedings.

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2. Explain who can lodge a complaint to the Public Protector.• Government at any level, central, provincial and local government;• State-owned enterprises;• Any person performing public functions and is an employee of the state, for example,

policemen, electoral officer or parastatal companies such as Eskom and Telkom;• Statutory councils, for example, Human Sciences Research Council.

3. Briefly explain how and where the following legal representatives represent the client: 3.1 Attorney – Any court 3.2 Advocate – High Court 3.3 Family Advocate – Magistrate’s Court, Family Court, Divorce Court

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Module 6

Doctrines of law and the Rule of Law

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Activity 6 Page 53

1. Discuss the doctrine of sovereignty by explaining what it means and how it developed.• Sovereignty is an independent authority over a geographical area, for example, state.• It is the highest authority in a state that is not subject to any other authority.• In the 16th century, Bodin defined sovereignty as the absolute power of the state.• He claimed sovereignty is a supreme power and isn’t restricted by laws, except by God.• Hobbes stated that sovereign power is above everything, even religion.• In the 17th century, Louis XIV used sovereignty to be free from the law.• He had sovereign power and no one had any legal power over him – could do as he

pleased.• Thomas Smith in England said sovereignty belonged to Parliament, not the king/queen.• The nation is ruled by means of vote and election of Parliament.• Sovereignty means the ultimate decision rests with the people.• In South Africa, Parliament is the highest legislative authority and therefore sovereign.• Parliament is however bound by certain rules and is subject to the Constitution.

2. Montesquieu wrote: ‘When the legislative and executive powers are united in the same person, or in the same body of magistrates there can be no liberty..’ Explain the doctrine of the division of powers as applied in South Africa.• Government is divided into three authorities.• These authorities can control one another to stop abuse of power and promote civil

liability.• Three powers are: – Legislative authority (make laws) for example, NA – Executive authority (carry out execute laws) ministers, departments – Judicial authority (judge if law was broken) for example, courts.

3. The Rule of Law means that nobody is above the law. Explain this statement and how the Rule of Law protects the citizens.• The state may not execute its powers arbitrarily.• Individual liberty should be upheld.• Everybody in the state is equal before the law.• No person may be punished if a law of the state was not broken, and• The breach of law must be established in a court of law.• Nobody is above the law and everybody is ruled by the same law and through the same

courts.• The Constitution protects the rights and property of individuals and corporations.• People are protected against arbitrary governance, dictatorship and mob rule.• It aims to ensure a stable government.• It aims for economic and social development of society.

4. What are the conditions that the state must take into account in an emergency situation before they take action or declare war?• If the danger is so bad that ordinary laws does not protect the citizens;• The action must be in proportion to the emergency, for example, if someone hits you,

you can hit back, but cannot shoot them.

Module 7

Civil liability of the state

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Activity 7 Page 56

Discuss the articles of law with relation to civil liability of the state and make reference to the conditions with regard to the suit against the state.• Any claim against the state, if the claim is against an official of the state, and there is

grounds for the claim, should be tried in a court of law.• The claim can arise from any contract lawfully entered into on behalf of the state that was

broken; or• Any unlawful act or wrongdoing by an official of the State when acting in his/her official

capacity.• A lawsuit on the basis of the above must be instituted against the executive authority of the

state institutions, for example, minister of the relevant department.• The claim against the state must be for an amount and cannot be against a defendant or

government property.• The claim will then be settled or not according to the verdict of the court.• If the claim is awarded by the court it must be paid within 30 days of the date of the order

or in the period agreed upon by the two parties.• There are certain conditions with regard to the institution of a claim:

– The state can only be held liable regarding the action or neglect of an official of state/department;

– The official must have been acting as an official of the department;– The official must have committed the unlawful act within the scope of his/her official

powers/functions; and– The applicant, or his/her legal representative must within 7 days they indicated to start

proceedings against the relevant executive authority, must serve a copy of the summons to the State Attorney.

Module 8

Administrative Law and the principle of legality

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Activity 8 Page 67

1. Briefly explain the following with regard to Administrative Law: 1.1 What is Administrative Law? There is two types of Administrative Law namely: • General Administrative Law that governs the administration in general. It is the:

– general rules and principles that all administrators must follow; and – remedies for people affected by administrative decisions, where administrative powers have not been properly used or where requirements in the law have not been followed.

• Particular Administrative Law is the body of law governing specific areas of the administration, for example, the law relating to refugees and immigration, vehicle licensing, state tendering procedures, land-use planning or civil aviation.

1.2 Is Administrative Law part of Public or Private Law? Explain your answer. Administrative law is part of Public Law. It rules the organisation, powers and actions of the administration of the state.

1.3 Explain judicial review as part of Administrative Law. When sitting in review of a decision, the court will only look at the method in which the decision was arrived at.

2. Discuss what is meant by the principle of legality. Section 33 of the Final Constitution explains the principle of legality as follows:

(1) everyone has the right to administrative action that is lawful, reasonable and procedurally fair;(2) everyone whose rights have been adversely affected by administrative action has the right to be given written reasons; and(3) 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.

3. Identify what administrative bodies have to do to apply the principle of legality. • Administrative actions must be lawful or pursue a lawful aim. • Administrative action must comply with the rules of natural lawfulness and the law. • Administrative action must be fair. • Administrative action must be reasonable. • Administrative action must be in the public interest. • Administrative action must comply with both the law and common law. • Administrative action may not be executed in an arbitrary way. • Authority of government bodies may not cause extreme hardship. • Nobody may be intently wronged. • No discrimination is allowed against individuals or groups. • Administrative bodies must act, with respect for the principles of equality, proportionality, justice, impartiality and good faith.

Module 9

Sources of Administrative Law

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Activity 9 Page 73

1. List six sources of Administrative Law.• The Constitution• Legislation (statutes)• Legal verdicts or precedent (court decisions)• Common law• Customs or administrative practices• Indigenous law• Works of modern authors

2. Discuss the constitution as a source of Administrative Law.• Most important legal rules regarding the political system;• Prescribes the government institutions at national level;• Defines and limits the authority of government institutions and bodies;• Determines the relationship between government and citizens;• Most important part of legal system of South Africa and contributes to Administrative

Law.

3. Discuss legislation as a source of Administrative Law and all the organs that are a part of this source of Administrative Law.

Legislation can be explained as:• law by legislative institution that has the power to do so;• known as statutes, acts, ordinances, regulations and proclamations;• laws on marriage, insolvency, criminal procedure, company law, civil liability, etc.;• courts have to apply legislation that is in force – if a person allegedly broke a law, the

case may end up in court who judges the matter and determines if a law was broken.

Different sources of legislation: Constitution

• Most important legal rules regarding the political system;• Prescribes the government institutions at national level;• Defines and limits the authority of government institutions and bodies;• Determines the relationship between government and citizens;• Most important part of legal system of South Africa and contributes to Administrative

Law.

Parliament• Laws originate in Parliament, thus Parliament is a source of Administrative Law.• Laws passed in Parliament describe the composition and function of admin bodies.• Minister or President promulgates subsidiary legislation to enhance Parliament legislation.• Laws promulgated for establishment of organs to execute laws.

Provinces• Provinces authorised by Parliament legislation to issue laws (ordinances).• Ordinances rules powers and functions of Provinces authorities and officials.• Provinces can issue Ordinances regulating to entertainment, traffic, town planning,

races, etc.

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Module 9 • Sources of Administrative Law

Proclamations• President can issue Proclamations according to Parliament legislation;• Is subsidiary legislation and is issued in terms of existing legislation;• Premier of Provinces can also issue Proclamations, for example, date of election.

Regulations include: • by-laws by municipalities;• rules of city councils;• rules of wage councils;• rules of licence boards.

4. Judicial review is also a source of Administrative Law. Please explain how judicial review influence Administrative Law.

Courts jurisdiction is to protect citizens Give court right to review legislation against the constitution If court find legislation unconstitutional, can declare law invalid Court can also review administrative actions Higher courts can review verdicts of lower courts and change it

5. Common law is also a source of Administrative Law and mainly developed from Roman-Dutch Law and British Law.

5.1 Which common law principles are derived from Roman-Dutch Law? • Rules regarding the interpretation of law; • Rules regarding the compensation by the state; • Rules regarding the legal powers of legislative actions; • Rules determining the invalidity of an action which is in conflict with a stipulation of law; • Rules for procedures where admin bodies don’t have procedures.

5.2 Which common law principles are derived from British Law? • Royal prerogative; • The ultra-vires doctrine; • The division of administrative action into quasi-judicial and purely admin actions; • Rules determining liability or the state

6. Briefly explain what is meant by administrative practices and which conditions administrative practices (customs) must fulfill to be recognised by a court of law.

The court requires that an administrative practice (custom) must fulfil the following conditions before it can become a legal rule:• It must have existed for a long time;• It must be observed generally by the community in which it applies;• It must be reasonable; and• It content and meaning must be certain and clear.

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7. Explain how the writings of modern authors may influence our law.• Academics and lawyers write books and articles on the law which are useful sources in

which to find law.• If a problem is experienced in law, easiest way to find solution is to consult a textbook

on the particular subject or problem.• Authors explain the legal position with respect to legislation, common law and case law.• Authors also criticise the law, speculate on it and offer solutions.• Opinions of modern authors can also lead to amendments of legislation.• Courts refer to academic writers in areas of new legal development.

Module 10

Administrative relationships

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Activity 10 Page 78

1. Identify the two types of Administrative Law relationships and explain each one briefly. Give examples of each type of relationship.• Private Law relationship:

– Individuals (legal person) are involved in legal relationship, for example, buying a house and signing a contract;

– It is a relationship between two persons or a person and a company.• Administrative Law relationship:

– One subject must be invested with government authority;– The government body must be invested with government authority, for example,

when the state buys land from a private individual or award a contract to a company.

2. Explain what the object is in an Administrative Law relationship. Object = the purpose or issue of the Administrative Law relationship, for example, if the

government buys land from a farmer the land is the object.

3. Explain what the subject is in an Administrative Law relationship. Subject is the individual or organisation or government that enters into a legal relationship

with another legal subject.

4. Explain the two types of subjects that can be found in an Administrative Law relationship.

Private subject = any private person (individual), private company or business Administrative subject = a government body or institution entering into a legal relationship

5. To determine whether an administrative body is a government organ, two tests may be performed. Identify these tests and explain how each one is applied.

Formal test: Ask the following questions:

• Was this body instituted by government?• Was the authority and duties established by legislation?• Was the organisation slotted into the hierarchy of power?• Is there a higher authority that influences the behaviour of the lower organ, for example,

a traffic department is a government organisation, but is subordinate to the city council.

Material test: Ask the following questions:

• What is the nature of activities of the organ?• Does it provide services to the public?• Is the organisation a bearer of government authority?• If all tests are passed and this one fails it is not a government body.

Module 11

Internal governmental relations and delegation of authorities

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Activity 11 Page 83

1. Identify and explain the types of administrative control relations that can be found in government bodies.

Internal relationship:• Develop when two government organisations in the same power base oppose each other,

for example, the Director-General and minister of same department come into conflict.• Determine whether higher organisation (minister) gave orders to lower organisation.• Determine if higher organisation has authority to change actions of lower organ.• If Licencing Board grants trading licence, then city council cannot later take licence

back.

Independent control relationship:• One organisation has authority to approve the actions or the other authority.• The two organs function independently, for example, the premier and city council.• The premier cannot order the city council to act or not to act, but he can approve or not

approve actions of the city council.

2. Distinguish between the internal and independent control relationships in government bodies.

See question 1.

3. Explain what is meant by the delegation of powers or functions.• A person or body holds the power and authorises another person or body to perform a

function on their behalf.• The delegator stays responsible for the actions of the delegate.• Power is delegated from higher to lower body.

4. List the three types of delegation.• Mandate• Deconcentration• Decentralisation

5. Discuss the three types of delegation or identify their differences. Mandate

• Simplest form of delegation;• Higher organisation decides and instruct lower organisation to do something;• Higher organisation stays responsible as instruction was carried out in its name;• Minister instructs the Director-General to build houses. Director-General must carry it

out but if it is not built, the minister must explain in Parliament.

De-concentration• Certain powers and functions are transferred from higher to lower organ;• Lower organisation again delegate functions to people below;• The delegate does everything in name of the delegant, for example, the Director-General

acts in the name of the minister;• Higher organisation can at any time withdraw delegation and do task themselves;• The higher organisation must exercise control over the lower organisation, for example,

reports.

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Module 11 • Internal governmental relations and delegation of authorities

Decentralisation• Powers and functions are transferred to an autonomous organisation;• The organisation performs the functions in it’s own name (e.g. Northlink College);• The higher organisation has no right to interfere after delegation, for example, the

minister appoints board of experts to grant licences. Minister cannot issue licences.• The higher organisation (minister) is still in control by appointment of the members of

the board.• Higher organisation must have control mechanisms in place.

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Module 12

Administrative proceedings

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Activity 12 Page 90

1. List the different types of administrative proceedings found in government organs.• Legislative administrative proceedings• Judicial administrative proceedings• Purely administrative proceedings• Multilateral admin proceedings:

– Collective labour agreements– Contract with officials– Agreement for the supply of services– City and town planning

• Unilateral admin proceedings:– Mechanical admin proceedings– Limited discretion.

2. Discuss legislative administrative proceedings.• The decisions taken by legislative bodies to carry out administrative action, for example,

if a city council sets down building regulations, it is a legislative administrative proceeding.

• Legislative functions are performed by an elected legislative body and not subordinate legislation.

• Legislative powers of an administrative organisation are set out in the Constitution and cannot be delegated, but powers and activities can be delegated.

• Constitution, Schedule 5 lists which Provincial legislatures may make laws.• Constitution, Schedule 4 lists which Municipal councils may make laws.• Decisions by legislative bodies determine the administrative proceedings; the activities

carried out by the administrative organs or bodies of government.• Legislative administrative proceedings only be repealed, amended or promulgated if

correct legislative administrative prescriptions were followed.

3. Explain judicial administrative proceedings.• There is remedies for people if administrative powers havn’t been properly used or where

requirements of the law have not been followed.• Any person whose rights have been materially and adversely affected by administrative

action can request written reasons for the action.• If the administrator fails to furnish adequate reasons for an administrative action, the

person may institute proceedings in a court or a tribunal for the judicial review of an administrative action.

4. When does a court or tribunal have the power to judicially review an administrative action?• The administrator who took it:

– was not authorised to do so by the empowering provision;– acted under a delegation of power which was not authorised by law; or– was biased or reasonably suspected of bias;

• The action was procedurally unfair;• The action was materially influenced by an error of law;• The action was taken:

– for a reason not authorised by the empowering provision;– for an ulterior purpose or motive;

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Module 12 • Administrative proceedings

– because irrelevant considerations were taken into account or relevant considerations were not considered;

– because of the unauthorised or unwarranted dictates of another person or body;– in bad faith; or– arbitrarily or capriciously;– the action itself contravenes a law or is not authorised by law;

• The action concerned consists of a failure to take a decision;• The action is so unreasonable that no reasonable person could have so exercised the

power or performed the function; or• The action is otherwise unconstitutional or unlawful.

5. Identify the tests that Wiechers recommends to determine whether a certain proceeding is a judicial proceeding.• A verdict by tribunal or court must be final and binding.• A verdict must not be subject to higher approval.• A dispute or disagreement must exist between bodies that are justifiable, for example, if a

home owner does not agree with the valuation of his home, it is a disagreement.• Test based on the working method of the organ.• Test is based on the nature of the admin organ’s final decision or action.

6. List the purely administrative proceedings.• Multilateral administrative proceedings• Unilateral administrative proceedings

7. Discuss the different purely administrative proceedings. Multilateral administrative proceedings:

• Co-operation between more the one subject in and individual relationship: Government and individual:

– Collective labour agreement;– City and town planning;– contract with officials;– agreement for the supply of services.

Unilateral administrative proceedings:• Called decrees – has the force of a law• Completely prescribes proceeding, where nothing is left to discretion;• There are two types:

– Mechanical admin proceedings – can be delegated (any official can do it)– Limited discretion – cannot delegate;

• Only liquor licencing board can issue licence.

8. What is the difference between mechanical administrative proceedings and limited discretion?• Mechanical administrative proceedings – may be delegated without authorisation, for

example, renewal of vehicle licence can be done by any official;• Limited discretion – not delegated. Executed within limits of prescribed discretion.

Only qualified official can test and award driver’s licence.

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Module 13

Judicial control

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Activity 13 Page 94

1. Identify the forms of control that exist regarding administrative proceedings.• Internal control• Control by Parliament• Investigation by Public Protector or parliamentary official• Control by judiciary (courts)

2. Discuss statutory appeal and identify the types of appeal that can be found in South Africa.• Appeal from lower court to High Court• Appeal from High Court to Supreme Court of Appeal• Appeal by a statutory body against a liquor licencing board if licence was not awarded

3. Briefly explain what is meant by judicial review.• Revision of cases from lower courts by means of notice of motion• Common Law revision of proceedings of admin authorities allowed by legislation• Revision of proceedings of statutory bodies• Revision of proceedings of voluntary bodies by courts if they exceed their authority

4. List the forms of judicial review found in South Africa.• Revision of cases from lower courts by means of notice of motion• Common law revision of proceedings of administrative authorities where law creates a

revision or appeal• Revision of proceedings of statutory bodies (Licence Boards) of which all administrative

proceedings are subject to common law revision• Courts can also review the proceedings of voluntary associations and bodies if they

exceeded their authority or in case of an irregularity.

5. Explain what the term ‘mandamus’ means.• An order from a superior court, to any administrative body (government authority), to

do what that body is obliged to do or not to do under law• Cannot be issued to compel an authority to do something against statutory provision• Means an administrative body is compelled to carry out its statutory duty• A command to do an administrative action or not to take a particular action,

6. When will a court issue a declaration of rights?• When there is an obvious legal dispute or uncertainty with an administrative organ• Court can issue a declaration of rights to solve the dispute• Court will not issue a declaration of rights for a purely academic dispute.

Module 14

Interpretation of laws

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Activity 14 Page 98

1. Explain what is meant by the interpretation of laws.Deals with the principles and rules used to determine the correct meaning of legislative provisions to be applied in a practical situation.

2. Identify the fundamental rules of interpretation.• The interpreter must interpret the law literally.• Words must be taken to have their usual meaning.• Common words must be interpreted in their common usage.• The interpreter may not step outside the wording of the law.• Each word must have meaning.

3. Briefly explain each fundamental rule of interpretation.• The interpreter must interpret the law literally:

– this rule concentrate on the literal meaning of the words of the law– will indicate the legislator’s intention.

• Words must be taken to have their usual meaning:– Words must be interpreted according to its grammatical and literal meaning;– According to the trade or profession of which the words are part of.

• Common words must be interpreted in their common usage:– If the law applies to a common situation, the application should also be common.– If the wording of a regulation says ‘no person shall’ it should mean exactly that.

• The interpreter may not step outside the wording of the law– no additions or subtractions from the words used in legislation are allowed.

• Each word must have meaning:– means that to every word a meaning must be assigned;– no word or sentence should be regarded as unnecessary or redundant.

4. Distinguish between the golden rule of interpretation and literal interpretation.

Golden rule of interpretation Literal interpretation of laws

The true INTENTION of the LEGISLATOR should be followed.

The meaning of the legislator as presented by the WORDS of the law should be followed.

Module 15

Aids in the interpretation of laws

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Activity 15 Page 104

1. Identify and briefly explain the internal aids regarding the interpretation of laws. Preamble/Preface:

• Preamble states the reason for legislation;• It shows the meaning of the legislator;• Identifies the objects of the act.

Long title/elaborated title:• Short summary of the subject matter of the law;• Info in the long title is used to determine the purpose of legislation.

Chapter and article headings:• Headings of chapters which the interpreter can refer to;• Used for doubtful parts in the law;• Used by courts to determine purpose of legislation if rest is unclear.

Addenda/Schedules:• Occur at end of law;• Used to shorten and simplify the content;• Forms or lists or schedules at end of legislation.

2. Identify and briefly explain the external aids regarding the interpretation of laws. The source of the article

• Determines if law is based on Roman-Dutch or British Laws.• A law based on Roman-Dutch Law must be interpreted that way.• Laws must also be interpreted in correlation with common law not against it.• When our law use same word as in British Law, the court does not have to follow

interpretation of English court.

Peripheral circumstances• This sheds light on the meaning of a stipulation of the law or the law itself.• If the meaning of the law is unclear, refer to the circumstances (meaning of intention)

• The circumstances to consider is those which counted when the law was approved, not after.

3. List five provisions regarding the interpretation of laws as stipulated in the Interpretation Act 33 of 1957.• Stipulations only valid for the explanation of laws in force at passing of Act;• Definition of words in Act valid for any law in which word are used;• If the word ‘persons’ is used in law it includes individual, company or group of people;• If the word ‘month’ is used it is a calendar month from first to last day of month;• If number of days are stipulated, the first day is excluded and the last day included.

Sundays and public holidays are excluded.

Practice examination papers and memoranda

54

N6 Municipal Administration Lecturer Guide

EXEMPLAR PAPER 1

Questions

SECTION A

Question 11.1 State which court has jurisdiction to try the following cases; Write only the answer next to the question number (1.1.1 – 1.1.5) in the ANSWER BOOK. 1.1.1 John bought an entertainment system from ABC furnishers to the value of R4 000.00. After a week he realises that the DVD player has a defect and wants to claim his money back. 1.1.2 After a fight in a bar, it is established that Sydney provoked the fight. He is charged with assault with the intention to do grievous bodily harm. 1.1.3 Clide wishes to appeal against the decision of the high court (Supreme Court) after he was found guilty of first-degree murder. 1.1.4 Jub-Jub was found guilty of reckless driving and driving under the influence of alcohol. The case was heard at the Protea Magistrate’s court and Jub-Jub wishes to appeal against the decision of the magistrate. 1.1.5 Jan and Vitoria have been married for 20 years in community of property. Vitoria caught Jan and Sophia in a compromising situation and she is filing for a divorce. (5 × 2) (10)

1.2 Give ONE word for the following descriptions. Write only the answer next to the corresponding number (1.2.1 – 1.2.5) in the ANSWER BOOK. 1.2.1 These rules are valid for the entire country and not a part only. 1.2.2 The police official who maintains order in court and display exhibits 1.2.3 This phenomenon is directed at the fact that an administrative organisation is compelled to perform a statutory duty. 1.2.4 This branch of law regulates the transactions of commerce and industry. 1.2.5 The manner in which cases are reviewed from the lower to the High Court. (5 × 2) (10)

1.3 Choose the word(s) from those given in brackets. Write only the word(s) next to the question number (1.3.1 – 1.3.11) in the ANSWER BOOK. 1.3.1 Judges are appointed from the ranks of (advocates/magistrates) who have served the period of learnership. 1.3.2 A state is defined as a (unit/legal person) which consist of people living in it. 1.3.3 According to the doctrine of (division of powers/national sovereignty) there must be trilateral division of powers. 1.3.4 The (Clerk of the Court/Sheriff ) is responsible for issuing procedural documents in the lower court. 1.3.5 The major function of the (State Attorney/Public Protector) is to protect the interest of the state by acting for all government departments and administration in civil cases. 1.3.6 The (Constitutional court/Supreme Court) hears appeals from all the divisions of the courts. 1.3.7 (District Courts/Circuit Courts) are part of the High Court. They sit at least twice a year moving around to serve more rural areas. 1.3.8 (Private Law/Public Law) regulates the relationship between private entities and private individuals.

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1.3.9 (Regional Magistrate’s Court/District Court) can sentence a person who has been found guilty of serious criminal offence, which includes murder or rape, and imprison the accused for life. 1.3.10 The presiding officer in the Small Claims Court is the (Magistrate/Commissioner). 1.3.11 The (Public Protector/Commission) investigates cases of maladministration and corruption on behalf of the state and determines if a case should be prosecuted or not. (11 × 2) (22)

1.4 Complete the following sentences by filling in the missing word(s). Write only the word(s) next to the question number (1.4.1 – 1.4.4) in the ANSWER BOOK. 1.4.1 In South Africa the judicial powers is vested in the ... 1.4.2 … seize the property of the sentenced debtor. 1.4.3 The unwritten laws which exist in any community by unspoken consent are known as ... 1.4.4 … is when the higher organisation instructs the lower organisation to act on their behalf, and can withdraw authority at any time. (4 × 2) (8) [50] TOTAL SECTION A: 50

SECTION B

Answer any FIVE questions in this section.

Question 22.1 Constitutional Law orders the wielding and division of government authority in a state. Explain this statement. (10 × 1) (10)2.2 Traditional subjective laws are distinguished by means of objects. Briefly explain and give examples of these objects. (5 × 2) (10)2.3 Name the various sources of South African Constitutional Law on which the court will base their findings. (5 × 1) (5)2.4 What is meant by an Administrative Law relationship? (5 × 1) (5) [30]

Question 33.1 Describe, with the aid of examples, the internal relationship and the independent control relationship. (7 × 1) (7)3.2 Discuss the test which Wiechers recommends to determine if a proceeding is a judicial proceeding. (8 × 1) (8)3.3 The law stipulates specific rules according to which words and sentences must be interpreted to establish the judicial meaning of words. State and explain the fundamental rules for interpretation of law. (15 × 1) (15) [30]

Question 44.1 Give a brief description of the principle of legality and indicate the application thereof in Administrative Law. (8 × 2) (16)4.2 In order to establish whether an administrative legal government body is a body of the state, a number of tests must be applied simultaneously. Name and explain these tests. (5 × 2) (10)4.3 Name and discuss TWO types of statutory appeals that exist. (4 × 1) (4) [30]

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Question 55.1 Write explanatory notes on the delegation of administrative powers and give examples. (5 × 3) (15)5.2 Discuss the liability of the state due to administrative proceedings. (5 × 2) (10)5.3 List five subsections of Public Law. (5 × 1) (5) [30]

Question 66.1 Briefly explain the following aids in interpretation of the law: 6.1.1 The preface 6.1.2 The long title 6.1.3 Appendices (3 × 4) (12)6.2 The Rule of Law is an important principle which is fully accepted in Constitutional Law. Briefly explain this statement. (6 × 2) (12)6.3 Explain the doctrine of sovereignty. (6 × 1) (6) [30]

Question 77.1 Explain the following sources of Administrative Law: 7.1.1 Legal verdicts/Judicature 7.1.2 Common law 7.1.3 Administrative practices (3 × 4) (12)7.2 Briefly explain the contribution that was made by the Roman Dutch and the British Laws. (10 × 1) (10)7.3 Write explanatory notes on the Small Claims Court under the following headings: 7.3.1 Powers and functions 7.3.2 Legal capacity of the court. (2 × 4) (8) [30] TOTAL SECTION B: 150 GRAND TOTAL: 200

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EXEMPLAR PAPER 1

Answers

SECTION A

Question 11.1.1 Small Claims Court1.1.2 Magistrates Court1.1.3 Supreme Court of Appeal/Appeal Court1.1.4 High Court1.1.5 Divorce Court/Magistrate’s Court (5 × 2) (10)

1.2.1 Common law1.2.2 Court orderly1.2.3 Mandamus1.2.4 Mercantile Law1.2.5 Revision/Review (5 × 2) (10)

1.3.1 advocates1.3.2 legal person1.3.3 division of powers1.3.4 Clerk of the Court1.3.5 State Attorney1.3.6 Supreme Court1.3.7 Circuit Courts1.3.8 Private Law1.3.9 Regional Magistrate’s Court1.3.10 Commissioner1.3.11 Public Protector (11 × 2) (22)

1.4.1 courts/judicial authority1.4.2 Bailiffs/Sheriffs of the Court1.4.3 customs1.4.4 Decentralisation/Mandate (4 × 2) (8) [50] TOTAL SECTION A: 50

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SECTION B

Question 2

2.1 • State is defined as a legal person which consists of people living in a certain area under a common authority. • Characteristics of a state are: – a community of people – a certain piece of land (with borders) – authority over the nation (people) by government. • We see state as legal person and the president, ministers and government bodies as organs acting on behalf of the state (legal person). • Organisation of state determines how authority is divided and wielded. (10 × 1) (10)

2.2 • Cases: physical material things, for example, property laws • Personal property: your character, good name • Immaterial property: inventions, trademarks • Performance: – Means human conduct – Law on performance is called the law of demand – A contract between two parties where one (A) will perform a task for payment by (B) – B can demand that A finish the painting before payment – B has to pay A if he finished the painting of the house – This includes appointment contracts. (5 × 2) (10)

2.3 Sources of South African Constitutional Law: • Legislation • Common law • Verdicts/judicial precedent • Traditions/customs • Authors • Textbooks • Foreign law (5 × 1)

2.4 Administrative Law relationship: • Private Law relationship: – Individuals (legal persons) are involved in legal relationship, for example, buy a house and sign a contract – It’s a relationship between two persons, or a person and a company. • Administrative Law relationship: – One subject must be invested with government authority. – The government body must be invested with government authority, for example, when state buys land from a private individual or awards a contract to a company.

Question 3

3.1 Internal relationship • Develops when two government organs within the same power base oppose each other, for example, the Director-General and minister of same department come into conflict.

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• Most important issue is whether the higher organisation (minister) gave orders to the lower organisation (Director-General) and if he has authority to change actions of the orders within his sphere of power. • If Licencing Board grants trading licence, then city council cannot later take licence back.

Independent control relationship: • One organisation has authority to approve the actions or the other authority. • The two organs function independently e.g. Premier and City Council, for example, the Premier cannot order City Council to act or not to act, but he can approve or not approve the actions of the City Council. (7 × 1)

3.2 Test of Wiechers to determine if a proceeding is a judicial proceeding: • The verdict passed by administrative organisation must be final and binding. • Verdict must not be subject to confirmation of higher authority. • Dispute between parties must exist of which certain issues must be judicial (can be solved by court), for example, someone applies for a licence and it is granted – there can be no dispute. • A homeowner may dispute the evaluation of their property and end up in court. • Test is based on the method of working and how it’s done. • Government organisations can only act it its judicial capacity in investigating and considering a dispute by using existing legal rules (Administrative Law). • The test is based on the nature of the administrative organ’s final decision of the action. (8 × 1) (8)

3.3 Rules according to which words and sentences must be interpreted: • The interpreter must interpret the law literally: – Must understand and interpret legal terms according to their grammatical and literal meaning. • Words must be taken to have their usual meaning: – Words of the law must be first and major source of information; – Words must be understood according to: - Common practice at the time - Trade of which they are part. • Common words must be interpreted in their common usage – If prescription of law is for common situations, the application should be common. • The interpreter may not step outside the wording of the law: – Not deviate from original literal interpretation. • Each word must have meaning: – Intention of legislator must be gleamed from the words of the law. (15 × 1) (1) [30]

Question 4:

4.1 Principle of legality: (8 × 2) • Administrative actions must comply with the rules of natural lawfulness. • Legislation must be in the public interest. • The government body must pursue a lawful aim. • Any tacit authority must be granted according to the principle of legality. • Administrative actions must comply with both the law in general and also with common law. • Nobody may be apparently wronged.

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• Powers of the government body may not be executed in an arbitrary way (misused). • Authority may not cause extreme hardships. • No discrimination against individuals or classes is allowed.

4.2 Test to determine if administrative body is body of the state: Formal test: Ask the following questions: • Was this body instituted by government? • Was the authority and duties established by legislation? • Was the organisation slotted into the hierarchy of power? • Is there a higher authority which influences the behavior of the lower organisation, for example, the traffic department is a government organisation but is subordinate to the city council.

Material test: Ask the following questions: • What is the nature of activities of the organ? • If the work has nothing to do with the supply of services to the public it can be assumed that it is not a government body • Is the organisation a bearer of government authority? If all tests are passed and this one fail it is not a government body. (5 × 2) (10)

4.3 Two types of statutory appeal: (2 × 2) • Appeal from the lower court to High Court/Supreme Court of Appeal • Appeal by statutory body (Liquor Licence Board) (4 × 1) (4) [30]

Question 5:

5.1 Delegation of administrative powers: • Simplest form of delegation. • Higher organisation decides and instruct lower organisation to do something. • Higher organisation stays responsible as instruction was carried out in its name. • For example, Minister instructs the Director-General to build houses. Director- General must carry it out but if it is not built the Minister must explain in Parliament.

De-concentration: • Certain powers and functions are transferred from higher to lower organ. • Lower organisation again delegate functions to people below. • The delegate does everything in name of the delegant. • For example, Director-General acts in the name of the Minister. • Higher organisation can at any time withdraw delegation and do task themselves. • The lower organisation acts in the name of the higher organ. • The higher organisation must exercise control over the lower organisation e.g. reports.

Decentralisation: • Powers and functions are transferred to an autonomous organ. • The organisation performs the functions in it’s own name (e.g. Northlink College) • The higher organisation has no right to interfere after delegation, for example, the Minister appoints board of experts to grant licences. Minister cannot issue licences as well. • The higher organisation (Minister) is still in control by appointment of the members of the board • Higher organisation must have control mechanisms in place. (5 × 3) (15)

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5.2 Liability of the state: • Any suit against state can be tried in court. • Does not matter if it is from contract closed with state or unlawful act of official. • Lawsuit can be initiated against minister of the department. • Claim for an amount. • Claim will either be settled or not.

Conditions: • Liability of state or department are limited to action or neglect of official. • There is a set time limit to initiate suit. • State must be held responsible on behalf of official. • No difference between state and officials. • Official acting as official – be on duty. • Official commit unlawful act within her duties. (5 × 2) (10)

5.3 Five sub-sections of Public Law

• International Law • Constitutional Law • Administrative Law

• Criminal Law • Procedural Law

(5 × 1) [30]

Question 6:

6.1 6.1.1 Preface • Refers to the general set-up to portray the true meaning of the legislator • Key to determining the thoughts of legislator during coding of law • If words are unclear will go back to preamble (4)

6.1.2 Long title • Short description of the subject of the law • Referred to if there is uncertainty about meaning of article • Only applied if words of law are unclear (4)

6.1.3 Appendices • Reduce the contents of the articles • Contain lists/definitions • Can contain charts (4) (12)

6.2 Rule of Law • Important principle in judicial system • State may not execute powers arbitrarily (not misuse their powers) • Individual liberty is upheld (rights of individuals) • Everybody is equal before law • Principles that law rules and not person or body • No person punished or rights interfered with if law was not broken • Breach of law must be established in court of law • Nobody is above the law • All citizen’s rights and freedoms are guaranteed by the Constitution. (6 × 2) (12)

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6.3 Doctrine of sovereignty: • In every state there is highest authority which is not subject to anything or anybody. Such authority is called sovereign. • Sovereignty started in 17th century under Louis XIV who used it to be free from the law. • This view caused that subjects (people) had not legal power over Louis XIV. • Bodinus, a French writer, felt that sovereign power can do as it pleases without responsibility to anyone and only answerable to God. • Thomas Smith claimed that sovereignty belonged to Parliament, not king/queen. • English view was that Parliament is not ruler, but nation ruled by means of vote and election. • Thus the doctrine of national sovereignty developed. • King and Queen are officials not rulers and can be dethroned if they abuse power. • Sovereignty means the ultimate decision rests with the people. • This was accepted by old Voortrekker states and is valid till today in South Africa. • In South Africa, Parliament is highest authority and therefore sovereign. • Parliament is however bounded by certain rules and subject to the Constitution. • No law passed in Parliament be declared invalid in a court of law except Constitutional Court. (6 × 1) (6) [30]

Question 7:7.1 7.1.1 Legal verdicts • ‘Legislative function’ of court (when deciding on administrative principles) set guidelines for further laws. • In SA courts have authority to review administrative actions. • E.g. DHET cannot transfer a teacher without consulting with the teacher – the rule of natural lawfulness must apply. • The authority to review of a court leads to development of legal rules with regards to Administrative Law. • Means a higher court can review cases and verdicts of lower courts, and may change it. • Legal verdicts can thus influence Administrative Law. (4)

7.1.2 Common law Common law is unwritten legal rules which is called unwritten Administrative Laws.

From Roman Dutch Law comes: • Rules regarding the interpretation of law • Rules regarding the compensation by the state • Rules regarding the legal powers of legislative actions • Rules determining the invalidity of an action which is in conflict with a stipulation of law • Rules for procedures where administrative bodies don’t have procedures.

From British Law comes: • Royal prerogative • The ultra-vires doctrine • The division of administrative action into quasi-judicial and purely administrative actions • Rules determining liability or the state. (4)

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7.1.3 Administrative practices Common law sprouts from practices with legality that becomes legal rules.

Admin practice must fulfil certain conditions: • Long established • Reasonable and sure • Used generally • Applied consequently (4) (12)

7.2 Roman-Dutch Law • By end of 15th century Roman and Dutch Laws merged. • Roman-Dutch Law was formed which was the best of both systems. • It was a systematic legal system. • A group of jurists (legal officials) wrote down the Roman-Dutch Law. • Roman Law was used where Dutch Law did not exist (Roman Law was used for the cases which they did not have Dutch Law). • That system came to South Africa in 1652 when Jan Van Riebeeck set foot in the Cape of Good Hope. • This system was taken by the Voortrekkers into the rest of the country.

British Law • In 1826, English Government instructed Bigge to examine legal system in the Cape Colony. • He recommended that British Law replace Roman-Dutch Law. • Old Council of Justice was to be replaced by Supreme Court with British judges. • This was fruitless – in 1934 the Carted of Justice ruled that Roman-Dutch Law was valid law. • Thus Roman-Dutch Law was modified with British Law. • The Voortrekkers carried Roman-Dutch Law into SA. • British Law contributed to Mercantile Law, Company Law, Insurance Law, etc. • British textbooks was made available and judges studied in British Law. (10 × 1) (10)

7.3 Small Claims Court powers and functions: 7.3.1 Legal capacity of court • Chairman of court is Commissioner of small claims • Civil servant may not be appointed as Commissioner • Must be advocate or practising lawyer • Parties appear for themselves • May not receive legal aid and minor must be assisted by parent or guardian (4)

7.3.2 Cases that can be heard: • The delivery or transfer of movable goods with the value of R15 000. • The eviction of an occupier of premises if rent is less than R15 000 • From a credit agreement amounting to a maximum of R15 000. • Where claim of value is a maximum of R15 000. • For a counter claim of a maximum of R15 000.

Cases not heard in Small Claims Court: • Dissolution of marriages (divorce) • Validity or interpretation of wills • Compensation regarding libel • Malicious persecution (break-inns) • Unlawful industrial theft • Unlawful arrest and seduction • Breach of promise of marriage (4) (8) [30] TOTAL SECTION A: 150 GRAND TOTAL: 200

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EXEMPLAR PAPER 2

Questions

SECTION A

Question 11.1 Complete the following sentences by using the words provided in the list below. Write only the word(s). Write only the word(s) next to the question number (1.1.1 – 1.1.16) in the ANSWER BOOK.

mandamus; Constitutional Law; Administrative Law; respondent; Clerk of the Court; Criminal Law; local, plaintiff, judge; Private Law; applicant; court orderly; civil; national law; interdict; defendant; Law of Evidence; Magistrate; criminal; provincial, state.

1.1.1 The Supreme Court can consist of a/an (a) … division and a/an (b) ... (4) 1.1.2 The presiding officer in the Supreme Court is the … (2) 1.1.3 The person who maintain order in the court is known as the ... (2) 1.1.4 The person instituting a claim is the (a) ... and the person against whom the claim is instituted is the (b) ... (4) 1.1.5 Public Law comprises of (a) … , (b) … and (c) … (6) 1.1.6 The … is defined as a legal person who consists of people living in certain areas under common authority. (2) (20)

1.2 Indicate whether the following statements are TRUE or FALSE. Choose the answer and write only ‘true’ or ‘false’ next to the question number (1.2.1 – 1.2.10) in the ANSWER BOOK. 1.2.1 A Public Prosecutor appears on behalf of the plaintiff in a civil case. 1.2.2 A Magistrate appears on behalf of the state in a criminal case. 1.2.3 The Director of Public Prosecutions is responsible for all criminal cases in his/her provinces, as such all the prosecutors are under his/her control. 1.2.4 The Small Claims Court has jurisdiction to hear any criminal case involving less than R15 000, unless both the person suing and the person being sued agree to limit the claim to less than R15 000. 1.2.5 The Legal Aid office in South Africa is an autonomous body established by the Legal Aid Act of 1969. 1.2.6 According to the doctrine of national sovereignty, in every state there must be a body or an institution in which the highest authority rests. 1.2.7 Administrative Law refers to the rules valid for the entire country and not a certain part only. 1.2.8 Constitutional Law organises and rules over the power of an organisation and the actions of civil servants. 1.2.9 In the case of decentralisation, the lower body may transfer powers to a higher organ. 1.2.10 The principle of legality means that all actions of an administrative organisation should be permitted by law. (10 × 2) (20)

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1.3 Give ONE word/term for each of the following descriptions. Write only the word/term next to the question number (1.3.1 – 1.3.5) in the ANSWER BOOK. 1.3.1 The function of this court is to concern itself with the care and welfare of the children. 1.3.2 This is the manner which cases are brought from lower court to a higher court for revision purposes. 1.3.3 This is a completely prescribed, where nothing is left to the own discretion of the administrative body. 1.3.4 This branch of law regulates the relationship between the state and subjects. 1.3.5 The legal functionary appointed by the state to handle the deceased estate and who makes recommendations to the court regarding custody access and guardianship. (5 × 2) (10) [50] TOTAL SECTION A: 50

SECTION B

Answer any FIVE questions in this section.

Question 22.1 Give a brief description of the principle of legality and indicate the application thereof in Administrative Law. (9 × 1) (9)2.2 Name the different sources of Administrative Law and indicate the contribution of each source. (4 × 4) (16)2.3 Distinguish between the golden rule of interpretation and of literal interpretation. (5 × 1) (5) [30]

Question 33.1 Briefly explain the fundamental rules for interpretation of law. (4 × 3) (12)3.2 Write explanatory notes on the delegation of administrative powers and give some practical examples. (6 × 3) (18) [30]

Question 44.1 Name and discuss various types of ‘administrative proceedings’. (12)4.2 Briefly distinguish between the doctrine of national sovereignty and the doctrine of trilateral division of powers. (9 × 2) (18) [30]

Question 55.1 Distinguish between objective sense and subjective right and indicate the objects which an individual has rights against. (9 × 2) (18)5.2 Which requirements should a custom comply with, before it can be regarded as a source of law? (6 × 2) (12) [30]

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Question 66.1 In order to establish whether an administrative body is a legal body of the state, a number of tests must be simultaneously applied. Name and briefly explain such tests. (5 × 2) (10)6.2 Discuss the liability of the state due to administrative proceedings. (5 × 2) (10)6.3 Distinguish between internal relationship and independent control relationship. (3 × 2) (6)6.4 Name FOUR forms of control regarding administrative proceedings. (4 × 1) (4) [30]

Question 77.1 Briefly explain the following aids in the interpretation of statutes: 7.1.1 Appendices (4 × 1) (4) 7.1.2 Long title (4 × 1) (4) 7.1.3 Preamble (5 × 1) (5)7.2 South Africa courts can only exercise their jurisdiction of appeal if allowed by the law of Parliament or regarding facts of legal questions. Explain TWO kinds of statutory appeal and give examples. (4 × 2) (8)7.3 Briefly explain any THREE categories of Public Law. (3 × 3) (9) [30]

TOTAL SECTION B: 150 GRAND TOTAL: 200

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EXEMPLAR PAPER 2

Answers

SECTION A

Question 11.1 1.1.1 (a) provincial (b) local (4) 1.1.2 judge (2) 1.1.3 court orderly (2) 1.1.4 (a) plaintiff (b) defendant (4) 1.1.5 (a) Constitutional Law (b) Administrative Law (c) Criminal Law (d) Law of Evidence (Any 3 × 2) (6) 1.1.6 state (2) (20)

1.2 1.2.1 False 1.2.2 False 1.2.3 True 1.2.4 True 1.2.5 True 1.2.6 True 1.2.7 False 1.2.8 False 1.2.9 False 1.2.10 True (10 × 2) (20)

1.3 1.3.1 Juvenile Court/Children’s Court/Family Court 1.3.2 Revision/Review/Appeal 1.3.3 Mechanical administrative proceedings 1 3 4 Public Law 1.3.5 Master of the Supreme Court or Master of the Court Master of the High Court or Magistrate (5 × 2) (10) [50] TOTAL SECTION A: 50

SECTION B

Question 22.1 Principle of legality: (9 × 1) • Administrative actions must comply with the rules of natural lawfulness. • Legislation must be in the public interest. • The government body must pursue a lawful aim. • Any tacit authority must be granted according to the principle of legality. • Administrative actions must comply with both the law in general and also with common law. • Nobody may be apparently wronged. • Powers of the government body may not be executed in an arbitrary way (misused). • Authority may not cause extreme hardships. • No discrimination against individuals or classes is allowed. (9 × 1) (9)

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2.2 Sources of Administrative Law and contribution of each source: (4 × 4) Constitution • Constitution: the most important legal rules regarding the political system • Parliament: Laws originate in Parliament • Provinces: Are authorised by Parliament who give them power to manage the province • Proclamations: The president can issue a proclamation e.g. date of election • Regulations: include by-laws, rules of city councils, wage councils, liquor licence boards, etc. (4)

Legal verdicts and judicature: • Courts decide on administrative principles and can set guidelines for further laws. (4)

Common law: From Roman-Dutch Law: • Rules regarding the interpretation of laws • Rules regarding the compensation by the state • Rules determining invalidity of an action in conflict with the law • Rules regarding procedure to be followed by administrative bodies From British Law • Royal prerogative • Ultra vires doctrine • Division of administrative actions (4)

Administrative practices: Practice must be: • long established • reasonable to be considered • used generally • recognised by people (4) (16)

2.3 Distinguish between golden rule and literal rule of interpretation: (5 × 1) Golden rule of interpretation: • True meaning of the legislator should be followed Literal rule of interpretation: • Meaning of legislator as presented by wording of the law

Golden rule does NOT apply to strict literal BUT meaning of legislator. (5 × 1) (5) [30]

Question 33.1 Fundamentals rules of interpretation: • Interpreter must interpret the law literally. ‘Words of law’ are the major source of information. Words of law should be given their original meaning.

• Words must be taken to have their usual meaning. Words of law given their ordinary meaning and used for the trade they are part of .

• Common words must be interpreted in the common usage. If prescription is for common usage, application should also be ‘common’. ‘No person shall’ means that in common usage.

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• Interpreter may not step outside the wording of the law. Court will not deviate from literal interpretation. No deviation from the words of the law. Words of statute should never be added or subtracted without necessity.

• Each word must have a meaning. Legislator must choose words carefully and not include idle or senseless words. (4 × 3) (12)

3.2 Delegation of administrative powers: Mandate: • Simplest form of delegation • Higher organisation decides and instruct lower organisation to do something • Higher organisation stays responsible as instruction was carried out in its name • For example, Minister instructs the Director-General to build houses. Director- General must carry it out but if it is not built the Minister must explain in Parliament.

De-concentration: • Certain powers and functions are transferred from higher to lower organisation. • Lower organisation again delegates functions to people below. • The delegate does everything in name of the delegant. • For example, Director-General acts in the name of the Minister. • Higher organisation can at any time withdraw delegation and do task themselves. • The lower organisation acts in the name of the higher organ. • The higher organisation must exercise control over the lower organisation e.g. reports.

Decentralisation • Powers and functions are transferred to an autonomous organ • The organisation performs the functions in its own name (e.g. Northlink College) • The higher organisation has no right to interfere after delegation. • For example, Minister appoints board of experts to grant licences. Minister cannot issue licences as well. • The higher organisation (Minister) is still in control by appointment of the members of the board. • Higher organisation must have control mechanisms in place. (6) (18) [30]

Question 44.1 Types of administrative proceedings: Legislative administrative proceedings • Deals with administrative rules, proclamations, regulations and decrees • For example, city council sets down building regulations

Judicial administrative proceedings: • No administrative organisation has purely judicial proceedings • Have judicial bodies, for example, Water Court

Purely administrative proceedings: • Not legislative of judicial of nature

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Multilateral administrative proceedings: • Co-operation of consent of more the one subject in and individual relationship. between government and individual, for example, the Collective labour agreement • City and town planning; contract with officials • Agreement for the supply of services

Unilateral administrative proceedings: • Called decrees; a complete prescribe proceeding, where nothing is left to discretion • For example, Mechanical administrative proceedings – can be delegated • Limited discretion – not delegated

Mechanical administrative proceedings: • Organisation exercise no discretion • For example, sum of money for vehicle licence (amount set) • Rubber stamp proceeding which is precisely prescribed

Limited discretion: • Executed within limits of a narrowly prescribed discretion • For example, Magistrate may issue or refuse a liquor licence. If there are errors, proceedings the invalid. (12)

4.2 Distinguish between national sovereignty and trilateral division of powers: Doctrine of sovereignty: • Highest authority which is not subject to anything or anybody. • Started in 17th century under Louis XIV who used it to be free from the law. • Bodinus, French writer, felt that sovereign power can do as it pleases without responsibility to anyone and only answerable to God. • This view caused that subjects had not legal power over Louis XIV. • In England, Thomas Smith claimed that Sovereignty power belonged to Parliament and not to the king/queen. • English view was that Parliament was not ruler, but nation ruled by means of vote and election of Members of Parliament. • Thus the doctrine of national sovereignty developed. • King and Queen are official and are responsible to the nation – if power is abused they can be dethroned, for example, Sovereign means ultimate decision rests with people. • In South Africa Parliament is highest authority and therefore sovereign. • Parliament is however bound by certain rules. • No law passed in Parliament can be declared invalid in a court of law except Constitutional Court.

Division of powers: • Montesquieu developed doctrine of division of powers. • Government is divided into three authorities. The three authorities can control one another to restrain abuse of power and promote civil liability: – Legislative authority (make laws) for example, National Assembly – Executive authority (carry out – execute laws) ministers, departments – Judicial authority (decide if law was broken) for example, courts (9 × 2) (18) [30]

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Question 55.1 Distinguish between objective sense and subjective right: Objective sense: • Legal rules which order society – statutory and common law • Laws, ordinances and regulations which order our daily lives • Laws regarding transfer of property, marriage, speed limits, functioning of courts, etc. • Rules regarding everyday life, commerce and industry • “The law” which objectively controls our day-to-day lives to guarantee order.

Subjective right: • Relationship between an individual and an article to which the individual has a right for example, house, material, physical things and the subjective rights regarding those things, for example, Property Law

Examples • Personal property (person’s character) • Immaterial property = spiritual property, for example, trademark, artworks • Performance – human conduct – person perform – get paid (9 × 2) (18)

5.2 Requirements a custom should comply with: • Long established: existing of a long time • Reasonable: not contrary to the law or public interest; not oppressive, damaging or unfair • Definite: Enough witnesses must prove that such a custom exists • Constant observance: Observed and practiced by an entire community or part of community; Community must acknowledge custom (6 × 2) (12)

Question 66.1 Test to determine if administrative body is legal body: Formal test: Ask the following questions • Was this body instituted by government? • Was the authority and duties established by legislation? • Was the organisation slotted into the hierarchy of power? • Is there a higher authority which influences the behaviour of the lower organisation, for example, the traffic department is a goverment organisation but subordinate to the city council.

Material test: Ask the following questions: • What is the nature of activities of the organ? • If the work has nothing to do with the supply of services to the public it can be assumed that it is not a government body • Is the organisation a bearer of government authority? If all tests are passed and this one fail it is not a government body. (5 × 2) (10)

6.2 Liability of the state: • Any suit against state can be tried in court. • Doesn’t matter if it is from contract closed with state or unlawful act of official • Lawsuit initiated against minister of department • Can claim for an amount • Claim may be settled or not.

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Conditions: • Liability of state or department is limited to action or neglect of official • Set time limit to initiate suit • State must be held responsible on behalf of civil servant • No difference between state and officials • Official acting as official • Official commits unlawful act within her duties (5 × 2) (10)

6.3 • Develops when two government organs within the same power base oppose each other. • For example, Director-General and Minister of same department come into conflict. • Most important issue is whether higher organisation (Minister) gave orders to the lower organisation. • If it has authority to change actions of the orders within it’s sphere of power, for example, if licencing board grants trading licence, then City Council cannot later take licence back.

Independent control relationship • One organisation has authority to approve the actions or the other authority • The two organs function independently e.g. premier and City Council • For example, the Premier cannot order City Council to act or not to act, but he can approve their activities or not (3 × 2) (6)

6.4 Four forms of control: • Internal control • Control by Parliament • Investigation by the Public Protector of parliamentary official • Control by civil servants (4 × 1) (18) [30]

Question 77.1 7.1.1 Appendices • In which repeat concepts are defined • Definitions to which original law refers • Law more manageable (4)

7.1.2 Long title • Short description of subject to the law • Referred to if uncertainty about meaning of article of law • Only used if meaning of words of law is unclear (4)

7.1.3 Preamble • Considerance and reflects true meaning of legislator • Determine thoughts of legislator during the coding of the law • One only refer to preamble if words of law is unclear (4)

7. Kinds of statutory appeal • Appeal from lower court to High Court (Supreme Court) – For example, person appeals against liability settlement or sentence • Appeal by a statutory body (non-judicial) – For example, Liquor Licence Board did not award licence and applicant appeals (4 × 2) (8)

73


7.3 International Law • Deals with the relationship amongst states, for example, law of war/peace.

Constitutional Law • Orders the organisation and establishment of the state organs • Deals with the composition, authority and functions of state organs • Powers and functions of presidents, ministers, departments, state officials, etc.

Administrative Law • Deals with the activities of the state bodies • Deals with the authority and functions of state bodies • For example, deals with workings of licensing board when applying for liquor licence.

Criminal Law • Deals with acts of people which is criminal – seen as criminal cases • What punishment must be conflicted according to law, for example, theft, assault, murder, etc.

Procedural Law • Organises the relationship between courts (state) and the suitors • Lays down the procedures which the suitors must allow in court Procedural Law is divided into: – Civil Procedural Law (claim for medical fees after accident) – Criminal Procedural Law – Law of Proof (any 3 × 3) (9) [30]

TOTAL SECTION B: 150 GRAND TOTAL: 200

74


SUBJECT WORK SCHEME AND ASSESSMENT PLAN

PROGRAMME AND LEVEL

SUBJECT AND LEVEL

SUBJECT CODE

DATE

YEAR/SEMESTER/TRIMESTER YYYY/SS (E.G. 2012/S1)

SUBJECT LECTURER

Index

Nr. Table of Contents Page

1 Purpose of Subject Work Scheme

2 General Information

3 Prescribed Text Book

4 Other Learning Resources

5 Year/Semester/Trimester Plan

6 Formative Assignments

7 Summative Assessment Plan

75

Subject Work Scheme and Assessment Plan

1. PURPOSE OF THE SUBJECT WORK SCHEME

This subject Work Scheme provides a structure of the subject content and syllabus. It can be used as a framework to reach learning outcomes and to better student-performance. The Subject Work Scheme must be consulted regularly to stay alert of learning objectives and outcomes and to prepare yourself for the lectures.

2. GENERAL INFORMATION

Course :

Subject :

Subject code :

Lecturer :

Study year :

Subject credits :

Offering time :

Lecturing time : × (hours) per week

3. PRESCRIBED TEXTBOOK(S)

Name: :

Edition: :

ISBN: :

Author: :

Publisher: :

76


4. OTHER LEARNING RESOURCES You can do research using the undermentioned sources to better your knowledge and understanding

and to broaden your perspective of the subject.

1. Name:

Edition: ISBN: :

Author: Publisher: :

2. Name:

Edition: ISBN: :


3. Name:

Edition: ISBN: :


77

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78

N6 Municipal Administration Lecturer Guide5.

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79

6. F ORMATIVE ASSESSMENT PLAN AND SUPPORTING TASKS

TaskNumber

Detailed Description of Formative Task/ Activity/Assignment and Topic/Learning Material Range e.g. Pg 5-10

Resources needed to complete the task e.g. Graph Paper, Work Sheet

Proposed Date to Complete

Actual DateCompleted

1.

2.

3.


80


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