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UNIT 1.3

UNIT 1.3. 2012/07/30. PAGES 73 – 92 BURNS QUESTIONS 11 – 20 WORKBOOK.

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UNIT 1.3

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  1. UNIT 1.3 2012/07/30 PAGES 73 – 92 BURNS QUESTIONS 11 – 20 WORKBOOK

  2. Question 10: (READ)In Van Huyssteen v Minister of Environmental Affairs and Tourism, ISCOR wished to erect a steel mill near the Langebaan Lagoon. To do so, the land had to be rezoned by the provincial administration of the Western Cape. As the steel mill would be close to a very sensitive nature reserve, an environmental impact assessment was required; in addition, a board appointed by the national Department of Environmental Affairs had to investigate the impact of the proposed mill. The environmental impact assessment was done by the CSIR. Amidst great public resistance and before the completion of the investigation by the board appointed by the Department of Environmental Affairs, the Western Cape Administration approved the rezoning. Mr Van Huyssteen, who owns land in the proxim­ity of the Langebaan Lagoon, is one of the objectors. Answer the following questions: (a) How many organs of state are involved in this case? Substantiate your answer. (6) (b) Does the rezoning by the Western Cape Administration constitute “ADR’ve action”? (3) (c) Does the investigation by the board appointed by the Dept of Environmental Affairs, constitute ADR’ve action? (3) (d) Does Mr Van Huyssteen’s action against the Western Cape Administration constitute ADR’ve action? (2) (a) The provincial administration is an organ of state. S239 spec­ifically includes an administration as an organ of state. (1) The Department of Environmental Affairs is also an organ of state — section 239(1) The board appointed by the Department of Environ­mental Affairs is also an organ of state — it is a functionary appointed in terms of legislation and it is performing a public function. (1) The CSIR is probably also an organ of state — it is a functionary in so far as it performs public functions. (1) The information does not clearly indicate whether ISCOR is an organ or state or not — it probably is in so far as it performs a public function. (1) Mr van Huyssteen is clearly not an organ of state — he is a private person. (1) (b) Yes. It is an action by an organ of state (the administration) which has been performed in terms of a statute. (1) The relationship is one of inequality. (1) The Western Cape Administration has exercised Govt authority. (1) (c) Yes. The board is an organ of state appointed by the department. (1) Therefore, the performance of its functions also constitutes ADR’ve action (1) since the board exercised its authoritative power. (1) (d) No. This is a court case (litigation) which is not ADR’ve ac­tion. (l) The Constitution expressly excludes courts from the defini­tion of “organ of state”. (l)

  3. SOURCES (p 17 – 31) Question 11: List the sources of ADR’ve law. (4) (1) legislation (2) case law (3) common law (4) ADR’ve practice (less NB source)

  4. Question 12: Is it of importance toADR’ve law to distinguish between original and subordinate legislation? (8) After April 1994, sovereignty of the Constitution. All legislation, including original legislation, can be tested for constitutional validity. (1) However, in ADR’ve law one may still distinguish between original and derived legislation: derived legislation,such as ministerial regulations, still regarded as ADR’ve legislative acts, must therefore comply with the provisions of section 33 of the Constitution (ADR’ve justice). (1) Municipal by-laws – no longer regarded as derived/delegated legislation . Constitution gives municipal councils the power to promulgate legislation directly. Further, municipal councils are democratically elected legislative institutions – their legislation therefore regarded as original Before 1994 NB to distinguish between original and subordinate/delegated legislation . The importance lay in the fact that the courts could not speak on the validity of original legislation,  parliamentary acts, --> sovereignty of parliament. (2) Subordinate legislation --> ministerial regulations and municipal by-laws, had to comply with the requirements for valid ADR’ve action and their validity could be tested by the High Court. (2)

  5. Question 13: Is it still necessary to take note of the status of provincial ordinances in ADR’ve law? (5) SCA in Middelburg Municipality v Gertzenheld that provincial ordinances = original legislation (in the same way as parliamentary legislation) BEFORE 1994 validity of these ordinances could not be tested by the courts, except to determinewhether the council which promulgated the ordinance, had acted intra vires—within its powers. (2) RESULT It is no longer necessary to take note of the status of provincial ordinances Its validity can however be tested today on basis of Constitutional supremacy. - certain ordinances, eg dealing with nature conservation still exist today. (1) NOW

  6. Question 14: Is there any merit in the view that ADR’ve law amounts to nothing more than a sound knowledge of the interpretation of statutes? Discuss briefly. (3) Because legislation is the most NB source of ADR’ve law, the interpretation of statutes plays a cardinal role in determining the ambit and scope of ADR’ve powers. (1) To equate ADR’ve law withstatutory interpretation means that the other sources of ADR’ve law are disregarded. It also fails to provide a solution to all ADR’ve problems. (1)

  7. DOCTRINE OF PRECEDENT / (STARE DECISIS) • In terms of this doctrine a court is required to follow the decisions of a higher court. (1) CONSTITUTIONAL COURT SUPREME COURT OF APPEAL HIGH COURT MAGISTRATES’ COURT

  8. CONSTITUTIONAL COURT • The highest court in constitutional matters is the Constitutional court. This court is bound by its own decisions, unless the previous decision was incorrect. (1) • many of the actions of state organsaffect the fundamental rights of the individual – • cases end up in the Constitutional Court, • the decisions of this court are very NB to ADR’ve law, and must naturally be followed by other courts in the country. (l) Supreme Court of Appeal The Supreme Court of Appeal is the next in the hierarchical chain of the courts and other courts, excl Const Court - bound by its decisions. (1) judicial precedent plays an NB role as a source of ADR’ve law, since the SA courts are empowered to review ADR’ve action. (1)

  9. Do courts merely interpret the law or do they also create law. The most generally accepted view is that the courts do create law. -> Sec 39 Constitution requires courts to develop common law / customary law when interpreting legislation And promote the spirit & objects of Bill of Rights SEC 172 Directs the Constitutional Court & Other Higher Courts to declare unconstitutional administritave action invalid. E.g. the incorporation of the doctrine of legitimate expectation into our law. (1)

  10. IMPURE LEGISLATION • Certain administrative measures are regarded as LEGISLATION • They are of GENERAL APPLICATION • Don’t possess all characteristics of legislation with regard to acceptance & promulgation. • Functions in the same way as subordinate legislation iro its effect, application & interpretation. • It rests on requirement of AGREEMENT • Best examples of impure administrative legislation 1. Collective industrial agreements • 2. Town Planning Schemes

  11. S v PREFABRICATED HOUSING CORPORATION (PTY) LTD & ANOTHER 1974 (1) SA 535 (A) • FACTS • Appeal concerns the validity of an industrial agreement that was • Made by Pietermaritzburg & Northern Areas Council for the Building Industry (Council) • Promulgated by the Minister on 5th April 1968 under Industrial Conciliation Act for the Northern Natal building industry • In the Government Gazette of that date. • The agreement was declared binding for 3 years and then extended until 14 April 1972. • Court had to decide weather an invalid provision in the agreement rendered the agreement as a whole invalid or if that provision was severable from the rest of the agreement, and the other parts thereof could stay in tact. • RELEVANT LEGAL QUESTION • Is an industrial agreement a contract between parties OR an example of subordinate, domestic legislation?

  12. DECISION • The document under consideration is termed under the Act and is in industrial parlance an “agreement” • It is said to be “negotiated” or “entered into” • Technically it IS NOT A CONTRACT in the legal sense. • The agreement only becomes effective if and when the Minister deems it expedient to declare it binding by notification in the Gazette. • Thus – An Industrial agreement is not a contract, but a piece of subordinate, domestic legislation • Made in terms of the Act, by the industrial council and Minister. • Thus the test to be applied regarding severability is that applicable to statutes.

  13. BROADWAY MANSIONS (PTY) LTD v PRETORIA CITY COUNCIL 1955 (1) SA 517 (A) The court decided that town planning schemes were lesislation

  14. Question 20: May estoppelbe raised against an ADR’ve authority? Discuss, with reference to case law. • What is estoppel? • Estoppel by representation is when a person is precluded from denying the truth of a representation previously made by him / her to another person • if the latter, believing in the truth of the representation, acted thereon to his prejudice. • A misrepresentation inducing the other party to act, is then regarded as the true state of affairs. • However, if a public authority acts by way of a misrepresentation, estoppel cannot be used against him because the misrepresentation cannot be held as true since such a state of affairs will then place the authority in a position where he is ultra vires. • Turquand rule = presumption of regularity

  15. Doctrineof estoppel is not applicable to ADR’ve bodies, since it would have the effect of granting powers to these bodies which they do not legally possess. (1) • Where the legal effect of an ADR’ve act amounts to a purely internal irregularity, the courts have, by relying on the ‘similar’ Turquand rule of company law • and the presumption that ADR’ve action is valid estoppedADR’ve bodies. (2) • The reason that courts in some cases have allowed the doctrine where a purely internal irregularity was present as there was NO prejudice to the public interest

  16. Roodepoort Settlement Committee v Retief – • an establishment committee tried to repudiate the sale of certain property on the basis that two of the committee members did not qualify as members at the time when it was decided to buy the property. (1). • The court upheld the plea of estoppel on the basis that the irregularity was a purely internal formality and that the committee should itself have ensured that the formality was properly complied with. (1) • Also conceded that an individual who has been misled by misrepresentations regarding the power of the ADR’ve body, may suffer serious damage if estoppel is denied. (1)

  17. In Trust Bank van Suid-Afrika v Eksteen,Hoexter AJ • came to the conclusion that it may sometimes be in the “public interest”to apply estoppel to authoritative bodies on the following basis: • the doctrine of estoppel is fair, • it was developed in the public interest, • and when a representative relies on a statutory irregularity, • it is the duty of the courts to determine whether it will be • in the public interest to allow the party being represented to rely on estoppel. (2)

  18. BEKKER v ADMINISTRATEUR, ORANJE – VRYSTAAT 1993 (1) SA 829 (O) • FACTS • Plaintiff (B) claimed payment of money from (A) Defendant ito provisions of para 34(1)(c) of the conditions of service of the Southern Free State Development Board. • (A) pleaded that abovementioned provision did not apply as (B) service had been terminated on the ground of redundancy ito s 15(13)(c)(i) of the Black Communities Development Act 4 of 1984. • (B) had himself requested termination of his services ito s 15(13)(c) of the Act. • It was contended on (B)’s behalf that (A) / legal predecessors created the impression towards him that para 34(1)(c) of the conditions of service applied to declaration of redundancy. Thus estoppel should be applied.

  19. COURT • Court in Trust Bank held: • It is a well know principle of our law that something that would by direct action be unlawful • Cannot be made lawful by indirect action. • A action that is ultra virescannot be clothed with legality by applying the doctrine of estoppel. • The action was dismissed with costs as the (B) knew his employment was being ended ito S 15(13) and he cannot now rely on the provisions of s 34.

  20. DURBAN CITY COUNCIL v GLENMORE SUPERMARKET & CAFE Where the allowance of a plea of estoppel would result in a party being prevented from performing a duty imposed on him by statute, It is necessary to enquire whether the provision imposing the duty is peremptory and whether the duty is imposed in the public interest. If it is, estoppel cannot succeed.

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