UNIT 1.3
2012/07/30
PAGES 73 – 92 BURNS
QUESTIONS 11 – 20
WORKBOOK
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?
(d)
(3)
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)
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)
Question 12: Is it of importance to ADR’ve law to distinguish between original and
subordinate legislation?
(8) sovereignty of the
After April 1994,
Constitution.
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)
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
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
Gertzen held that provincial
ordinances = original legislation (in
the same way as parliamentary
legislation)
RESULT
BEFORE 1994
validity of these ordinances could
not be tested by the courts, except
to determine whether the council
which promulgated the ordinance,
had acted intra vires—within its
powers. (2)
Its validity can however be tested today on basis of Constitutional
supremacy.
- certain ordinances, eg dealing with nature conservation still exist today.
(1)
NOW
It is no longer necessary to take note of the status of provincial ordinances
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 with statutory 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)
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
CONSTITUTIONAL COURT
Supreme Court of Appeal
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 organs affect 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)
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)
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)
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
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?
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.
BROADWAY MANSIONS (PTY) LTD v PRETORIA CITY COUNCIL
1955 (1) SA 517 (A)
The court decided that town planning schemes were lesislation
Question 20:
May estoppel be 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
•Doctrine of 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 estopped
ADR’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
•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)
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)
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.
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 vires cannot 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.
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.