|
The Promotion of Administrative Justice Act〔Act 3 of 2000.〕 (PAJA) is an important piece of South African legislation, and the cornerstone of administrative law in South Africa. == Administrative action == The South African Law Commission’s draft Administrative Justice Bill described the concept of "administrative action" widely: any action or decision performed by an organ of state or any exercise of public power other than executive, legislative or judicial action. The definition of administrative action ultimately enacted in PAJA was "considerably more complicated and qualified."〔Currie and De Waal ''Bill of Rights'' 655.〕 Section 1 of the PAJA defines administrative action as "any decision taken, or any failure to take a decision, by * "an organ of state, when * * "exercising a power in terms of the Constitution or a provincial constitution; or * * "exercising a public power or performing a public function in terms of any legislation; or * "a natural or juristic person, other than an organ of state, when exercising a public power or performing a public function in terms of an empowering provision, which adversely affects the rights of any person and which has a direct, external legal effect, but does not include * * "the executive powers or functions of the National Executive (); * * "the executive powers or functions of the Provincial Executive (); * * "the executive powers or functions of a municipal council; * * "the legislative functions of Parliament, a provincial legislature or a municipal council; * * "the judicial functions of a judicial officer of a court referred to in section 166 of the Constitution or of a Special Tribunal established under section 2 of the Special Investigating Units and Special Tribunals Act, 1996 (Act No. 74 of 1996), and the judicial functions of a traditional leader under customary law or any other law; * * "a decision to institute or continue a prosecution; * * "a decision relating to any aspect regarding the appointment of a judicial officer, by the Judicial Service Commission; * * "any decision taken, or failure to take a decision, in terms of any provision of the Promotion of Access to Information Act, 2000; * * "any decision taken, or failure to take a decision, in terms of section 4(1)." Currie and De Waal write that, "although one begins with the definition of ‘administrative action’, the enquiry into the scope of application of the Act does not end there."〔Currie and De Waal ''Bill of Rights'' 656.〕 Because administrative action as defined is confined to "decisions," "one must also consider the definition of 'decision' in s 1."〔 In turn, because the definition of "decision" confines decisions to conduct "of an administrative nature" in terms of an "empowering provision," "it must be read with the definition of 'empowering provision.'"〔 Finally, because "decision" includes failure to take a decision, the definition must be read with the definition of "failure" (which includes a refusal to take a decision).〔 In summary, an action will qualify as administrative action under the PAJA if it is * a decision * by an organ of state (or a natural or juristic person) * when exercising a public power or performing a public function * in terms of any legislation (or in terms of an empowering provision) * that adversely affects rights; * that has direct, external legal effect; and * that is not specifically excluded by the list of exclusions in the definition of administrative action.〔 抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』 ■ウィキペディアで「Promotion of Administrative Justice Act, 2000」の詳細全文を読む スポンサード リンク
|