SCENARIO AND QUESTIONS (ADMINSTRATIVE LAW)

Q. 1

Mrs Opikopi is a citizen of a warravaged country in West Africa. She fled her country of birth, moving gradually southwards and entered South Africa after a long journey. Mrs Opikopi applies for asylum at the Department of Home Affairs in terms of section 21(1) of the Refugees Act 130 of 1998. Pending the outcome of her application for asylum,she was granted an asylum seeker interim permit in terms of the Act, which allows her to stay temporarily in South Africa. Later, however, her application for asylum is rejected by the authorised refugee status determination officer without any input by Mrs Opikopi. No reasons were given, but it later transpired that the rejection was based on the informal notes of the refugee reception officer working in the refugee reception office. From these notes the impression might be created that the decision had been influenced by certain irrelevant factors suggesting bias on the part of the administrator. You are an advisor working at a nongovernmental organisation called Consortium for Refugees and Migrants in South Africa (CRMSA). Mrs Opikopi approaches you to determine how your organisation might be able to assist her in her current predicament:

a. What various elements of the definition of administrative action to the set of facts? and plz advice Mrs OPikopi on whether she is the subject of an individual or general administrative law relationship.

b. Mrs Opikopi would like to challenge the administrative decision in court. She has a nephew who is a practicing attorney who has volunteered to provide her with free legal advice during the court proceedings. The Refugees Act, however, makes provision for the review of administrative decisions by the Standing Committee and an appeal to the Appeal Board for a decision by a refugee status determination officer.With reference to relevant case law, and legislation advise Mrs Opikopi on the most appropriate avenue to challenge the decision. In your answer provide reasons on why you have chosen that route.

c. Please advise her on whether the following qualify as administrative action. You should state "Yes" or "No", provide the relevant provision of law and give reasons.

The President signs the new Basic Condition of Employment Amendment Act on the 3rd of February 2020.

The President hosts a party in which he welcomes the ambassador of Egypt.

The appointment of Judge Hlope by the Judicial Service Commission.

The Premier of the Northern Province refers the NHI Health Bill back to the provincial legislature for consideration of its constitutionality.

The Director of Public Prosecutions refuses to institute proceeding against Jack Moose for tax evasion.

Q.2 Mr Donogood is an exconvict who has managed to secure a job as a truck driver transporting fruits from the Eastern Cape to Gauteng. He was the victim of ahijacking and his wallet that contained his drivers' licence was stolen. Since then he has been the recipient of many traffic fines for driving without a valid licence. He has approached the Watloo Licencing Department in Pretoria for a replacement. He stands in the queue to pay the R120 that is necessary for him to be issued with the licence but realizes that he has forgotten his bank card and requests to go and get it from the car. When he arrives at the car, he remembers that he actually left it at home. He quickly rushes to collect it and is back within an hour. When he arrives at the Licensing Department the official hands him a letter notifying him that he will not be issued with a licence. In the letter there is no mention of the reasons as to why his licence replacement has been unsuccessful.

Mr Donogood is an exconvict; can he request reasons? (10)

Suppose for this question only, AND Mr Donogood is permitted to apply for reasons in terms of PAJA. Advise Mr Donogood on the steps he should take to request reasons.

Compare, prohibitory, mandatory and structural interdicts and advise when each would be used in administrative law.

Q.3 The Legal Aid Board is an organisation that is committed to providing free legal assistance to indigent members of the community who earn less than R7 500 a month. To date, they have provided free legal advice to more than three million people.Due to the increased demand for these services and a dwindling revenue, they have opted to make changes to the manner in which legal services are provided. In an internal memorandum circulated to the Legal Aid Board staff, a new structure is adopted. It is only individuals earning lessthan R2 500a month who are eligible to get free legal advice. Since then, many people have been turned away without receiving any advice.

A. Advise on whether the action of the Legal Aid Board violated procedural rights. In your answer:

Identify the section of PAJA that is relevant in this present scenario.

Discuss the procedures that they should have followed before such a decision was taken.

Advise on whether this decision can be judicially reviewed

Q.4 Compare standing under the common law, under S38 of the Constitution and under PAJA. aND include the following:

A description of the concept of standing.

An explanation of the rationale for a standing requirement.