Follow
Publications: 77 | Followers: 0

unit 2.1

Publish on Category: Birds 0

What isestoppel?Estoppelby representation is when a person is precluded from denying the truth of a representation previously made by him / her to another personif the latter, believing in the truth of the representation, acted thereon to his prejudice.A misrepresentation inducing the other party to act, is then regarded as the true state of affairs.However, if a public authority acts by way of a misrepresentation,estoppelcannot be used against him because the misrepresentation cannot be held as true since such a state of affairs will then place the authority in a position where he is ultravires.Turquandrule = presumption of regularity
Doctrineofestoppelisnot applicable toADR’vebodies,since it would have theeffectofgranting powers to these bodies which they do not legally possess. (1)Where the legal effect of anADR’veact amounts to apurely internal irregularity, thecourts have, by relying on the ‘similar’Turquandrule of company lawandthe presumption thatADR’veaction is validestoppedADR’vebodies. (2)The reason that courts in some cases have allowed the doctrine where a purely internal irregularity was present as there was NO prejudice to the public interest
Roodepoort Settlement Committee v Retief–an establishment committeetried to repudiate the sale of certain property on the basisthattwo of the committee membersdidnot qualify as membersat the time when it was decided to buy the property. (1).Thecourt upheld the plea ofestoppelon the basis that theirregularity was a purely internal formalityand that the committee should itself have ensured that the formality was properly complied with. (1)Also conceded that anindividual who has been misled by misrepresentationsregarding the power of theADR’vebody,may suffer serious damage ifestoppelisdenied. (1)
InTrust Bank vanSuid-AfrikavEksteen,HoexterAJcame to the conclusion that itmay sometimes be in the “public interest”to applyestoppelto authoritative bodieson the following basis:the doctrine ofestoppelisfair,it wasdeveloped in the public interest,and when a representative relies on a statutory irregularity,it is the duty of the courts to determine whether it will bein the public interest to allow the party being represented to rely onestoppel. (2)
FACTSPlaintiff (B) claimed payment of money from (A) Defendantitoprovisions ofpara34(1)(c) of the conditions of service of the Southern Free State Development Board.(A) pleaded that abovementioned provision did not apply as (B) service had been terminated on the ground of redundancyitos 15(13)(c)(i) of the Black Communities Development Act 4 of 1984.(B) had himself requested termination of his servicesitos 15(13)(c) of the Act.It was contended on (B)’s behalf that (A) / legal predecessors created the impression towards him thatpara34(1)(c) of the conditions of service applied to declaration of redundancy. Thusestoppelshould be applied.
COURTCourt in Trust Bank held:It is a well know principle of our law that something that would by direct action be unlawfulCannot be made lawful by indirect action.A action that isultravirescannot be clothed with legality by applying the doctrine ofestoppel.The action was dismissed with costs as the (B) knew his employment was being endeditoS 15(13) and he cannot now rely on the provisions of s 34.
Where the allowance of a plea ofestoppelwould result in a party being prevented from performing a duty imposed on him by statute,It is necessary to enquire whether the provision imposing the duty is peremptory and whether the duty is imposed in the public interest.If it is,estoppelcannot succeed.
UNIT 2.1CHAPTER 4 WORKBOOKCHAPTER 4 OF THE TEXTBOOK p 93- p104
IMPORTANT QUESTIONS FOR EXAM:QUESTION 23QUESTION 24QUESTION 25
This rule means where anADR’veauthority has been empowered to perform a particular actandthe performance is accompanied by theexercise of discretion,thenthefunction or task may not be delegatedin the absence ofexpress statutoryauthorisationor necessaryimplication. (l)AnADR’vebodymay exercise the discretion personallyandthen instruct a subordinatebody to implement the decision. (1)In the case ofAttorney-General OFS v Cyril Anderson Investmentsitwas decided that aProvAdministratormaydetermine the conditions of town establishmentand then leave it to thecity council to implementthe conditions. (1)AnADR’veorgan,may appoint someonesuch as an inspectorto determine certain facts on its behalf, but it must still exercise the, discretionary power personally. (1)
ATTORNEY –GENERAL, OFS v CYRIL ANDERSON INVESTMENTS (PTY) LTD 1965 (4) SA 628 (A)The respondent was convicted of contravening certain conditions of title in respect of his property in terms of the Townships Ordinance.He was the owner of aerfin a township in WelkomHe conducted business from theerf- unlawfully and wrongfully as this was notauthorisedby the conditions of the ordinance.The conditions were approved by the Administrator and registered against theerven.The main argument for the Respondent (relevant hereto) was that the condition providing the following:that theervenshall be used solely or mainly for such special industrial purposes and for purposes incidental theretoas may be approved in writing by the council {D(a)}Was ultravires
LEGAL QUESTIONIs the condition D(a) ultraviresin so far as itpuportsto delegate powers to the Municipal Council of Welkom toauthorisethe special industrial purposes for which certainervenmay be usedJUDGMENTThe Administrator may, under the powers conferred by the ordinance, impose conditions designed to restrict or control purposes for whichervenmay be usedThe question is if the Administrator, when imposing such conditions is required to do so HIMSELF, or if he may delegate that power to local authority as he has done in this matter
The maximdelegatusdelegarenonpotestis based upon the assumption that ,Where the legislature has delegated powers and functions to a subordinate authority,It intended that authority itself to exercise those powers and to perform those functions,And not to delegate them to someone else,And that the power delegated does not include the power to delegate.Not every delegation of delegated powers is hit by the maxim, BUTOnly such delegations as are notEXPRESSLY or by NECESSARY IMPLICATION,Authorisedby the delegated powers
NBThe power to impose conditions designed to restrict the purposes for whichervenmy be used is an implied power flowing from the wide powers of the OrdinanceCourt cold find no authority in the Ordinance that the Administrator’s powers should be regarded as limited in the sense thatAdministrator must himself determine and describe the restrictions.The power to restrict the use ofervenMUST include the power to delegate to some appropriate authority (such as the local authority)The power to control or restrict the purposes for whichervenmay be used.
DECISIONThe condition D(a) falls within the powers conferred upon the Administrator.Thus it is NOTultraviresAppealsuceeds
In the case ofBEF v CAPE TOWN MUNICIPALITY 1983 2 SA 387 (C)The administrator delegated it’s powers in terms of the Townships OrdinanceTo the city engineerThe engineer then delegated this power to assistant-quantity surveyorTHE COURT HELDDelegation to the quantity surveyor was in conflict with the rule and thus unlawful.
Question 24: Discuss the delegation of powers within the relationship ofdeconcentrationanddecentralisation.Givean example of both forms of delegation. (15)Purpose behind the delegation of power is tofacilitate the division oflabourwithin the administration. (1)Genrlrule: where adiscretionary powerhas been granted to aparticular body/officialbecause of his/her specific knowledge or expertise, thispower may not be delegated.(1)
ADMINISTRATOR CAPE v ASSOCIATED BUILDINGS 1957 2 SA 317 (A)The powers delegated to the Provincial Secretary under section the Ordinance,Include that of taking decisions which the Administrator can take in respect of townshipsAnd the Secretary canauthorisethe Under-Secretary to take certain decisions on his behalfExample of:DECONCENTRATION
UNIVERSITY OF PRETORIA v MINISTER OF EDUCATION 1948 4 SA 79 (T)Act 13 of 1930 statesRector of University of Pretoria shall be appointed by the University councilIn the manner prescribed by the University Statutes framed under the actRegulation 11 of the Statutes provided that the Rector shall be appointed by the council subject to the approval of the Minister of EducationJUDGMENTThe Minister does not have the authority to appoint the Rector of a universityHe had to approve the decision of the council, BUTCould not substitute his decision for that of the council
Question 25:Does the delegation of power by way of mandate amount to a contravention of the prohibition onsubdelegation? Discuss. (5)Thegeneral ruleis that where adiscretionary poweris granted to an official because of hisparticular knowledge or expertise, hemay notsubdelegatethis power to another. (1)In the case of delegation by mandate thesuperior body takes the decision and then instructs a lower body or official to implement it. (1)This simple form of delegation by way of instructiondoes not contravene the prohibition onsubdelegationandusually occurs within the same hierarchy such as a state department(2)
Question 28:DoesADR’velaw apply to the actions of the following bodies? Discuss the question with reference to case law:Voluntaryassociations such as jockey clubs and rugby clubs?CARR V JOCKEY CLUB 1976 2 SA 717TheHealth Professions Council of SA?SA MEDCAIL and DENTAL COUNCIL v MCLOUGHLIN 1948 2 SA 255 (A)TheJohannesburg Stock Exchange?DAWNLAAN BELEGGINGS v JOHANNESBURG STOCK EXCHANGE 1983 2 SA 344 (W)

0

Embed

Share

Upload

Make amazing presentation for free
unit 2.1