We assist businesses in all areas of Administrative Law
Administrative Law is the law relating to the exercise of public power and functions. In other words, it pertains to the powers and functions of government and other public bodies. These powers and functions must comply with an array of requirements under the broad headings of lawfulness, reasonableness, and procedural fairness. At times, these principles also regulate the actions of private entities.
Administrative Law is primarily concerned with the daily business of government: the implementation of legislation and the exercise of delegated powers, typically by way of regulations.
Administrative Law is also at play in matters involving public procurement (tenders), the provision of education and health services, transport, the protection of the environment, and all forms of licensing.
Our experienced Administrative Law specialists provide advice and formal opinions on the legality of the actions of government and other bodies exercising public power and functions, such as the performance of statutory functions, the issuing of regulations and the contracting for goods and services in the field of public procurement. We also provide strategic advice on the enforcement of rights, taking into account the available remedies.
A sound understanding of the legal principles governing the exercise of public power or performance of public functions by any entity – whether state or private – is essential to effective public-sector participation.
- Raisa Cachlia, Caveat Panel Member
Administrative LawS & Regulations
A labyrinth of statutory and regulatory instruments are applicable to the field of administrative law. The 1996 Constitution provides the overarching framework that governs the exercise of all public power. The right to just administrative action in section 33 of the Constitution – as given effect to in the Promotion of Administrative Justice Act, 2000 – regulates the exercise of administrative power specifically. Other significant provisions are section 195, which contains the basic principles governing public administration and section 217, which governs public procurement. Legislative instruments such as the Public Finance Management Act, 1999 the Local Government: Municipal Finance Management Act, 2003 and related legislation are also integral to the practice of administrative law.
Public FinancE and Investment Management
The financial management of public funds involves a chain of administrative processes from proper authorisation to procurement and delivery of the goods and services. To achieve proper financial management, the governance structure of the public entity connected to the investment facility or fund needs to be established with a clear approval process, delegation of authority and sufficient supervision and oversight including the audit process. In addition, best practice financial management includes procedures such as segregation of funds, reconciliation processes and a sufficient monitoring and evaluation framework to track the performance of the fund and the impact of the deliverables. The new focus on financial sustainability and blended finance (public and private finance) used in public development funds and investments, requires a sophisticated approach to finance structuring requiring both public and private investment insights.
Legal Advice for Administrative Law
Clients benefit from legal assistance on administrative law matters including:
- Whether – and if so, how – they can contract with government.
- The legality of government’s decisions.
- Their eligibility to receive a license in accordance with legislation or regulations.
Administrative law advice can take the form of a formal opinion, a memorandum or advice by email. Our team also assists with license applications in accordance with various types of legislation.
Frequently asked questions on Administrative Law
Administrative law is foremost about good governance, and thus the legal principles governing the exercise of public power or performance of public functions by any entity, whether the state or a private body. On a more particular level, the field is concerned with ensuring that administrative actions, as defined in the Promotion of Administrative Justice Act, 2000 are performed lawfully, reasonably and procedurally fairly.
Public procurement is regulated by administrative law. For example, the award of a tender qualifies as administrative action for the purposes of the Promotion of Administrative Justice Act and will thus be regulated by the administrative law standards of lawfulness, reasonableness and procedural fairness in that legislation.
The best practice financial management of public and donor funds is critical for the delivery of development objectives of any government or multilateral organisation.
- Kerry Kopke, Caveat Panel Member
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Approaching government with an unsolicited offering is fraught with uncertainty,