O presente trabalho tem por objetivo demonstrar que um agente público no exercício de suas atribuições, por força das circunstâncias operacionais, algumas vezes atua como um agente político, conforme conceitos estabelecidos pela doutrina do Direito Administrativo. Esse agente público é Cândido Mariano da Silva Rondon, engenheiro militar; as circunstâncias são os trabalhos realizados no âmbito das Comissões Construtoras de Linhas Telegráficas nos estados de Mato Grosso, Amazonas e no Território do Acre; o agente político é o idealizador e executor de um serviço de proteção aos índios, pioneiro espaço público de discussão em torno das relações sociais com os povos indígenas. / The objective of this paper is to demonstrate that a public agent in order to accomplish assignments, due to operational circumstances, sometimes acts like a political agent, as the concepts established by Administrative law doctrine. This public agent is Cândido Mariano da Silva Rondon, military engineer; the circumstances are the services performed by the Telegraphic Commissions in the states of Mato Grosso, Amazonas and in Acre Territory; the political agent is the creator and executor of an indian protective service, pioneer public space for discussion of social relations with the Indian nations.

LL.D. / Due to a democratic policy of transparency, responsibility and accountability, government organisations in the 'new' South Africa will have to properly and thoroughly plan and manage all facets of the national economy. Planning of land rights, - development and environmental conservation is necessary to manage the housing shortage, industrial and agricultural development and the principles of the Development Facilitation Act and the reconstruction and development programme. Town-, regional- and environmental conservation planning (especially managing of natural resources) is of vital importance. The role of the community, public participation, opinions and input is vital and desirable. New legislation in terms of town- and regional planning matters is however not completely in place. Administrative law, particularly the administrative justice stipulation in the constitution, plays an important and integral role in terms of the duties of town planning tribunals, developmental facilitation tribunals, town councils, ministers, provincial premiers and members of executive committees' powers and functions. The relevant legislation in Gauteng Province is the Development Facilitation Act, Town planning and Townships Ordinance (Tvl), the Local Government Transition Act,' the Gauteng Removal of Restrictions Act, 2 town planning schemes and the Environmental Conservation Act. This list is not a numerus clausus and will be discussed further below. The basis and practical area of application of all this legislation is administrative law. The administrative justice stipulation in the Constitution plays a vital and essential role in the implementation and execution of such legislation.

Phénomène séculaire, la pollution a pris une nouvelle ampleur au début des années 1970. Cette transformation a conduit l’État à mettre en place un dispositif de protection visant à prévenir ou réparer les dommages susceptibles d'en résulter. A une période où il faisait par ailleurs l'objet de nombreuses contestations, le droit administratif s'est alors trouvé confronté à un nouvel objet. L'étude des évolutions issues de cette rencontre révèle d'abord que les équilibres du droit administratif institutionnel ont été ajustés. L'institution étatique, largement attendue, s'en trouve revalorisée. Et les relations administratives sont redéfinies. Au sein de l'appareil administratif, l’État central est renforcé. Dans ses relations avec ses administrés, le pouvoir administratif s'est au contraire ouvert, favorisant sa démocratisation. Par ailleurs, les mouvements du droit administratif substantiel ont été modérés par l'appréhension de cette nouvelle mission. Du fait de sa dimension collective, la lutte contre la pollution se prête mal à la subjectivisation du droit administratif. Quant à la tendance à la contestation de l'autonomie du droit administratif, elle est également limitée. La transversalité de l'objet pollution favorise l'ouverture du droit administratif aux autres disciplines. Pour autant, l'intégration des sources extra-juridiques reste maitrisée et les effets de l'exercice de cette nouvelle mission en termes de banalisation du droit administratif sont mesurés. / Although an age-old phenomenon, pollution has gained a new momentum throughout the l 970's. This development prompted the State to institute a plan to prevent or repair potential subsequent damages. At a time when it had already aroused many disagreements, administrative law then had to deal with a new matter. Balances of institutional administrative law were adjusted. The value of the state institution highly expected, was reasserted. And the administrative relations were redefined. Within the administrative institution, the unitary state was reinforced. On the contrary, the administrative power opened up towards its citizens, thus fostering its democratization. Besides, substantial administrative law, apprehensive of this new mission, tempered its movements. Due to its collective nature, pollution abatement does not lend itself to subjectivization of administrative law. While individual interests still hold an important place, the protection plan and its guarantees are based on the administrative action. The propensity to contest the autonomy of administrative law is also limited. The transversal essence of the pollution topic encourages administrative law to embrace other disciplines. Nevertheless, the integration of sources unrelated to law remains under control and the fulfilment of this new mission has moderate consequences in terms of trivialization of administrative law.

Le terme compétence est couramment utilisé en droit administratif. Cependant, si les questions de répartition font couler beaucoup d'encre, la compétence est peu traitée en tant que telle. Cette thèse propose de mettre en lumière les interactions entre compétence et droit administratif. La première partie analyse son influence originelle sur le droit administratif en définissant la compétence et les liens qu'elle entretient avec le pouvoir, l'attribution, la capacité, le savoir-faire, la souveraineté, l'institutionnalisation, la propriété, les prérogatives de puissance publique, l'objectivité et l'habilitation. En tant que « pouvoir de vouloir encadré par le droit», la compétence comporte deux facettes indissociables que sont l'habilitation à agir et la détermination du champ matériel de celle-ci, construisant ainsi les contours du droit administratif. La seconde partie est consacrée à l'influence réciproque du droit administratif sur la compétence par l'analyse de la compétence dans les mutations de cette branche du droit. Les évolutions de la relation entre l'État et les collectivités territoriales, le débat opposant la clause générale de compétence et la spécialisation, le développement de la contractualisation, l'apparition de techniques dynamiques de répartition des compétences telles que la délégation, l'expérimentation ou la subsidiarité, les débats sur l'efficacité et la flexibilité, permettent d'avoir un regard renouvelé sur la compétence. L'étroite relation entre le droit administratif et la compétence se trouve ainsi mise sur le devant de la scène afin de conclure à l'imbrication majeure qui les lie et fait du droit administratif le droit de la compétence. / The term « jurisdiction » is commonly used in administrative law. However, even though we may find several records on the jurisdiction allocation matter, the competence issue itself is not often treated. The purpose of this thesis is to highlight the interaction between jurisdiction and administrative Jaw. The first part analyzes its original influence over administrative law, by defining jurisdiction and how it's related to power, jurisdiction allocation, capacity, know­how, sovereignty, institutionalization, ownership, public authority prerogatives, objectivity and empowerment. As a « will power framed by the law », the jurisdiction has two inseparable facets, which are the power to act and the determination of the material scope, thus building the outline of administrative law. The second part of the thesis is devoted to the interplay of administrative law and jurisdiction, analyzing jurisdiction within the mutations of this branch of law. Changes in the relationship between the State and local governments, the debate opposing the general competence clause and specialization, the development of contracting, the emergence of dynamic jurisdiction allocation techniques such as delegation, experimentation or subsidiarity, as well as the debate on effectiveness and flexibility allow to renew the jurisdiction approach. The close relationship between administrative law and jurisdiction is thus put into the spotligh.t, showing the major interlocking that binds them and allows the conclusion that administrative law is the law of jurisdiction.

Cizojazyčné resumé My diploma thesis deals with the issue of the administrative consideration and indeterminate legal terms. In first chapter are mentioned theoretical fundamentals of administrative consideration and analysis of application principles. There are also described main conceptual features - provision of law as a legal basis, freedom in decision making proces and possibility to choose an optimal solution of the issue, conclusion, that discreation is not an inherent attribute of decission making proces within public administration, limits of dicretion, which can be deduced from provision of law (concretised limits) and basic principles of public law (general limits) and finally legal requirements for reasoning for the decision, based on administrative consideration. Second chapter describes indeterminate legal terms. At first text clarifies process of interpretation and subsumption facts under such terms, explains reasons and consequences of using this terms in law regulations. Chapter three deals with very common phenomenon - coexistention of administrative consideration and indefinite legal terms in one legal provision. Author analyses relations between them and then reccomend, with respect to judicial conclusions, how to carry out the process of aplication properly. In chapter four author...

L’identification du contrat administratif est connue pour être une notion bâtie par la jurisprudence. Les critères d’identification de la notion ont été certes apportés par le Conseil d’État au début du XXe siècle, et la jurisprudence conserve encore aujourd’hui une importance indéniable dans la matière. La multiplication des qualifications légales, depuis le début du nouveau millénaire, pose cependant question. Il serait tentant de voir dans cet essor un bouleversement de la notion de contrat administratif. Ces changements auraient toutefois pour conséquence une perte de sens qui ne pourrait entraîner qu’une disparition à terme, voire paver la voie à une unification du contentieux des contrats, le contrat administratif ayant perdu toute spécificité. Or c’est cette spécificité qui justifie l’existence d’un corps de règle spécial – le régime du contrat administratif – et d’un juge spécial, le juge administratif. Envisager le problème en ces termes est tentant, mais ne reflète que partiellement la réalité. Il faut en effet rappeler que les qualifications légales sont très tôt intervenues dans la définition du contrat administratif, et qu’elles ont cohabité avec les critères tirés de la jurisprudence jusqu’à la période contemporaine. Malgré les apparences, c’est toujours le cas. Les qualifications légales les plus récentes n’ont pas remis en cause la spécificité du contrat administratif. Celui-ci est toujours identifié en fonction de sa nature particulière, et seul son champ d’application change. Critères jurisprudentiels et qualifications légales partagent en effet une même conception du contrat administratif, fondée sur la proximité avec l’intérêt général. Loin d’être affaiblie, la notion de contrat administratif révèle donc sa permanence. Seule recule de fait l’intervention de la jurisprudence en son sein, hormis dans l’application des textes. / The identification of administrative contract is known as a concept constructed by case law. The concept criteria were made by the Conseil d’État in the early twentieth century, and judicial authorities still retain an undeniable importance in the matter. The proliferation of legal qualifications, since the beginning of the new millennium however raises questions. It is tempting to see in this development a disruption of the concept of administrative contract. These changes, however, would result in a loss of direction which may result in an eventual disappearance, or even pave the way for unification of contractual disputes, administrative contract having lost all specificity. Yet it is this uniqueness that justifies the existence of a special rule body - the regime of administrative contract - and a special judge, the administrative judge. To consider the problem in these terms is tempting, but only partially reflects reality. It must be remembered that the legal qualifications were very early part in the formulation of administrative contract, and they cohabited with the criteria derived from case law to the contemporary period. Despite appearances, this is still the case. The most recent legal qualifications did not question the specificity of administrative contract. It is yet identified according to its special nature, and only its scope changes. Jurisprudential criteria and legal qualifications indeed share the same conception of administrative contract, based on the proximity to the public interest. Far from being weakened, the concept of administrative contract thus reveals its permanence. Only backs away the intervention of case law within it, except in the enforcement of written law.

South Africa’s employment law has undergone more frequent and dynamic changes than any area of the law, in recent years. The ability of employers and employees to regulate their respective rights and duties vis-à-vis each other by independent agreement has been progressively whittled down by statutory intervention. In so limiting the capacity of parties to the employment relationship to regulate the nature of their relationship, South Africa has followed development in Western industrialised nations. Against this background, the drafters of the Labour Relations Act1 (LRA), as amended, proposed a comprehensive framework of law governing the collective relations between employers and trade unions in all sectors of the economy. The LRA2 created a specialised set of forums and tribunals to deal with labour and employment related matters. It established Bargaining Councils, the Commission for Conciliation Mediation and Arbitration (CCMA), the Labour Court (LC) and the Labour Appeal Court (LAC). It also created procedures designed to accomplish the objective of simple, inexpensive and accessible resolution of labour disputes. In redesigning labour law, the legislature decided that some disputes between employers and employees should be dealt with by arbitrators and others by judges. It is this distinction that resulted in the creation of the CCMA and the Labour Court to perform arbitration and adjudication respectively. The result of adjudication is generally subject to appeal to a higher court. The result of arbitration is generally subject to review. Arbitration was given statutory recognition in South Africa by the Arbitration Act3. That Act provides a framework within which parties in dispute may if they wish appoint their own “judge” and supply him or her with their terms of reference tailored to their needs. With the foregoing in mind, the purpose of this work is the provision of a selection of landmark cases that dealt with the review function of CCMA awards. This selection 1 Act 66 of 1995 as amended comprises of landmark judgments of the different courts of the land. The study uses, as it departure point, legislative framework to elicit the extent to which review is extended to the litigants. Apart from looking at the legislative provisions towards review grounds, reference is made to specific landmark judgments that have an effect on this subject in order to provide a comprehensive and explicit picture of how CCMA arbitration awards may be taken on review. This study focuses on substantive law developed by the Labour Court, High Court, Supreme Court of Appeal and finally the Constitutional Court. This is informed by the very nature and scope of the study because any concentration on procedural and evidentiary aspects of review could lead to failure to achieve the objectives of the study. It looks at specific South African case law, judgments of the courts and the jurisprudence in the field of employment law so that the reader is presented with a clearer picture of recent developments in addressing review of arbitration awards. The concluding remarks are drawn from a variety of approaches used by the authorities in the field of employment law in dealing with review of CCMA arbitration awards and issues for further research are highlighted.

It is generally agreed that a criminal justice system reflects the values of the society within which it exists. The presence of patriarchal social values will likely affect the response of the criminal justice system to intimate violence. While the perpetration of violence against another is a violation of an important social norm, patriarchal values may function to discount the seriousness of such an act, if the violence is perpetrated by a man against his girlfriend or wife. This discount of seriousness may lead to less severe punishment for men who assault their intimates than to men who assault nonintimates. The purpose of the present study was to test the hypothesis that men who are convicted of committing serious assaults against female intimates receive more lenient punishment than men who are convicted of committing serious assault against nonintimates. Punishment was defined as sentencing outcomes, i. e. type and length of sentence. The sentences of offenders convicted of felony assaults as the major offense and subject to sentencing guidelines in Oregon in 1993 were examined. Chi-square tests were used to compare the sentence types of intimate and nonintimate violence offenders. Two-tailed !-tests and multiple linear regression were used to examine the relationship between victim-offender relationship and length of sentence. It appears that the presence of Oregon's sentencing guidelines, rather than victim-offender relationship, had the greatest effect upon the severity of punishment. This finding suggests that the guidelines may be responsible for minimizing the impact of patriarchal values on sentencing decisions in serious assault cases.

Section 16 A (2) (d), (e) and (f) of the South African Schools Act, Act 84 of 1996 assumes that a school principal has specialised knowledge in interpreting legislation, dealing with disciplinary matters pertaining to learners, educators and support staff, and making disciplinary decisions. The legal framework of the Promotion of Administrative Justice Act, Act 3 of 2000, as well as section 33 of the Constitution of the Republic of South Africa, Act 108 of 1996, affects disciplinary decision making in education. The need to understand how legislation affects disciplinary decision making is important, because s ection 16 A of the South African Schools Act, Act 84 of 1996 assumes that education managers have the requisite knowledge and understanding of the law when dealing with disciplinary decision making. Disciplinary decisions taken by education managers fall in the domain of administrative law. The Promotion of Administrative Justice Act, Act 3 of 2000, forms the foundation for administrative action that is lawful, reasonable and fair. Since this Act is relatively new, and education managers have a lack of education law knowledge in general, it can be argued that principals might struggle to take disciplinary decisions that are lawful, reasonable and fair. Thus, there is a need to answer the following question: What are the legal requirements that should be considered in taking disciplinary decisions that are lawful, reasonable and fair and how can these disciplinary decisions be made more effectively? The purpose of the study was to understand the context and content of Section 33 of the Constitution of the Republic of South Africa, Act 108 of 1996, the Promotion of Administrative Justice Act, Act 3 of 2000, and Section 16A of the Schools Act , Act 84 of 1996 and how they would positively influence disciplinary decision making in South African education. The main research question was: What are the legal requirements that should be considered in taking disciplinary decisions that are lawful, reasonable and fair and how can these disciplinary decisions be made more effectively? Chapter 2 answered the research question of which decision-making processes could assist the education manager to take disciplinary decisions that are lawful, reasonable and fair. It was established that principals make frequent use of the rational model for decision making. However, the more comprehensive data-driven decision-making model was proposed. This not only focuses on a single disciplinary decision, but on the cause and trends of all transgressions that exist in a school. This model enables a principal to draw up a plan of action to deal with the cause of the problem. After analysing the applicable legal framework, the concepts of lawful, reasonable, and fair were defined and interpreted in Chapter 3. An administrative action is lawful when an administrator is duly authorised by law to exercise power. Reasonableness has two elements, namely rationality and proportionality. Rationality means that evidence and information should support a decision an administrator takes, while the purpose of rationality is to avoid an imbalance between the adverse and beneficial effects. The approach to fairness has changed since the pre-democratic era. The main components that are linked to procedural fairness are the common-law principles of audi alteram partem, and nemo iudex in sua causa. The qualitative approach was followed in this study to shed light on the perceptions of the participants on the meaning of the legal concepts of lawful, reasonable, and fair in disciplinary decision making, and their understanding of the legal framework of this study. Furthermore, this study sought answers to which decision-making processes could assist the education manager, as well as to the advantages of having a disciplinary coordinator to assist education managers in making lawful, reasonable and fair disciplinary decisions. Convenience and purposeful sampling was used because the schools were conveniently located. Four secondary school principals in Cape Town were chosen, as well as two officials from the Western Cape Department of Education. The reason for purposive sampling was that two of the four schools that were selected had to have a discipline coordinator. Semi-structured interviews were held with the abovementioned principals and officials to answer the main research question. The following information emerged from the semi-structured interviews which were incorporated in the data-driven, decision-making model of school improvement. Some of the findings were: i. Animosity exists between some school principals and the Western Cape Education Department (WCED). There is a lack of communication between the WCED and principals, as well as a lack of training on disciplinary decision making. ii. It was also established that principals made common mistakes related to the interpretation of legislation or applicable regulations. iii. A good practice emanating from the study is a paper trail of all interventions kept by schools. iv. Principals tend to use only the South African Schools Act as a legal framework for disciplinary decision making. v. Principals need to focus on strategies to address the link between bad behaviour and poor academic performance. vi. A discipline coordinator can assist the principal in maintaining discipline, investigating transgressions, organising disciplinary hearings, and in disciplinary decision making. Decision making, lawfulness, reasonableness, and fairness were combined in this research to establish the legal requirements that should be considered in taking disciplinary decisions that are lawful, reasonable and fair, and how these disciplinary decisions can be more effective for the sole purpose of school improvement. / Thesis (PhD)--University of Pretoria, 2014. / tm2015 / Education Management and Policy Studies / PhD / Unrestricted

Thesis (LLM.) -- University of Limpopo, 2007 / Refer to document