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Administrative & Regulatory Law

Administrative & Regulatory Law Advocates


What is Administrative & Regulatory Law?

Administrative law is traditionally regarded as that body of law that regulates the legal relations of public authorities, whether with private individuals and organisations or with other public authorities. However, it is probably more accurate to speak of administrative law as regulating the activities of bodies that exercise public powers or performing public functions, irrespective of whether those bodies are public authorities in the strict sense. The Constitutional Court has described administrative law as “an incident of the separation of powers under which the courts regulate and control the exercise of public power by the other branches of government”. What gives a particular power or function a public rather than a private character is thus an important issue for administrative lawyers. It arises in all sorts of contexts, from privatisation to tenders and from permits and licenses to plans and approvals.

The field of administrative law overlaps to a considerable extent with constitutional law, which is also concerned with organs of state and their interaction with citizens. But administrative law differs from constitutional law in its emphasis on one particular branch of the state system: the public administration, and on a particular activity of the state: administrative action. In contrast to constitutional law, administrative law is less about the high policy-making organs of the executive like the Cabinet, the President and the Deputy President and, at provincial level, the Premiers and Executive Councils and more about the implementation of these policies and the carrying out of legislative functions by bureaucrats. It covers all government departments such as Housing, Education, Finance, Health, Home Affairs and Trade and Industry, whether at national, provincial or local government level. It also covers local government administrations, the security forces and the many parastatals like Telkom, Eskom and Transnet.

In this sense, then, administrative law concerns the conduct of the bureaucracy in carrying out the daily functions of the state which necessarily involve the application of policy, usually after its translation into law, with direct and immediate consequences for individuals of groups of individuals. These types of bureaucratic decisions are measured against the provisions of the Promotion of Administrative Justice Act, No. 3 of 2000 (“PAJA”).

Regulatory law is a narrow part of administrative law. It is that part which applies to legislated regulators of specific sectors, businesses or professions. Regulatory law is about how these regulators apply their rules to day-to-day situations, and how the rules are applied to those that they regulate. Typical regulators are the Medical Schemes Council, the Health Professions Council, the Pension Funds Adjudicator, the Law Society, environmental authorities, the Financial Services Conduct Authority, town planning authorities, competition authorities, the banking regulator etc. Ultimately the decisions taken by these regulators are governed by administrative law. This is where the manner in which a regulator’s power has been exercised gets measured against legislation for lawfulness.