LEG_2601 Questions With Answers.
Question 1
1.1)Public Law Relationship
- Public law is law governing the relationship between individuals (such as citizens and
companies) and the state.
- It is an unequal (↕ vertical) relationship, because one of the parties holds on authoritative
pos...
1.1)Public Law Relationship
- Public law is law governing the relationship between individuals (such as citizens and
companies) and the state.
- It is an unequal (↕ vertical) relationship, because one of the parties holds on authoritative
position
- Public law aims to protect the public interest
- Public law comprises of constitutional law, administrative law, tax law and criminal law, as
well as all procedural law.
Private Law Relationship
- Private law is that part of a civil law legal system which is part of the jus commune that
involves relationships between individuals, such as the law of contracts and torts (as it is
called in the common law), and the law of obligation (as it is called in civil legal systems)
- It is a horizontal (↔ equal) relationship, meaning that the parties are on equal footing
- The persons (also called “parties”) act in their own (private) capacity to further their own
interests
1.2) Four Sources of South African Law
- The constitution – the supreme law of the country
- Legislation (acts of the national and provincial legislatures, governmental regulations)
- Common law
- International law
1.3)The term ‘heritage resource” refers to any place or object of cultural significance. The cultural
Heritage Impact Assessment must be undertaken if a development will have an impact on a
heritage resource.
In the context of developments which threaten heritage resources, the Act provides for a
National Heritage Resources Authority and for Provincial Heritage Resources Authorities. These
authorities are responsible for protecting and managing certain categories of heritage resources
and they are the authorities that must make the decision on whether to permit the
development.
A person who wishes to undertake certain types of development that will an impact on a
heritage resource must include an assessment of the impact on the heritage resource in
question in his or her application.
1.4)The environment is held in public trust for the people,
- The beneficial use of environmental resources must serve the public interest and the
environment must be protected as the people’s common heritage
- Kidd (Environmental law 2008 act 11) states that the public-trust doctrine adopted in South
Africa resembles “trusteeship” rather than public trust
, - Public trust refers to a state-held resource which must be held for the benefit of the general
public, referring to the free use of, or access to, such a resource by the general public
- The principle of trusteeship, in contrast, entails that the trustee should protect the
environment on behalf of future generations.
1.5)“Well-being” is regarded in the wider sense which includes spiritual or psychological
characteristics and an individuals need to be able to connect with nature.
Question 2
2.1)
• To be performed “lawfully” the action must comply with all the requirements of the law.
This means that the relevant prescriptions of the constitution, other legislation and case law
(e.g., the sources of law) must be complied with. Any administrator must act within the
powers conferred on him or her by the empowering legislation (the legislation that confers
the powers). In the enabling legislation we find instructions relating to the scope and
content or nature of administrative power. If any administrator exceeds the statutory
powers laid down in the enabling legislation, we say that the action is ultra vires (which is
unlawful).
• A “reasonable” administrative action is a decision based on the consideration of all the
relevant and objective facts and circumstances. A reasonable decision is therefore a decision
based on reason and not based on, for e.g., subjective opinion. A reasonable decision is a
suitable and necessary decision in the circumstances and reflects that the administrator has
weighed up the advantages and disadvantages before reaching the decision. In terms of
PAJA, an unreasonable administrative action is so unreasonable that no reasonable person
could have so exercised the power or performed the function.
• The obligation to comply with “fair procedures” requires that both parties involved in the
case have the opportunity to present their side of the story to the presiding officer, and that
the presiding officer must be objective and impartial when making a decision on the matter.
These are known as the rules of natural justice, which has been included in PAJA.
2.2) Besides their powers, which include:
• Questioning suspects
• Issuing written notices where people refuse to answer questions
• Inspecting and copying any relevant book or document, as well as taking photographs and
samples relevant to any investigation,
EMIs also have the following specific powers:
• May issue a compliance notice if a person has not complied with a term or condition of a
permit, authorisation, license or the provisions of environmental legislation.
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