Ch. 6 - Procedural Fairness

Question 1

Prior to 1994 when were decisions considered fair?

Answer 1

If they complied with the rules of natural justice:

• Audi alteram partem (hear the other side)
• Nemo judex in sua causa esse deet (no one should be a judge in their own cause)

Question 2

What is the position today?

Answer 2

The rules of natural justice remain in place because they are protected by the right to just administrative action in s33 of the C and PAJA.

• However, they have been supplemented
• And the requirements of fairness are now more generously applied than under the common law (with no classification of functions)

Question 3

What is the problem with procedural fairness standards?

Answer 3

They take time and resources to uphold and fulfil, possibly to the extent of causing ‘administrative paralysis’.
- Thus, what fairness demands will depend on the circumstances of each case.

Question 4

Which section of PAJA is applicable to procedural fairness?

Answer 4

Section 3 - procedural fairness iro decisions that affect individuals

Question 5

What are the procedural requirements that MUST be complied with ito s3(2)(b)?

Answer 5

1. Adequate notice of proposed administrative action
2. A reasonable opportunity to make representations
3. A clear statement of the administrative action taken
4. Adequate notice of any review or internal appeal
5. Adequate notice of the right to request reasons
   Ito 3(3) some situations require more demanding requirements:
6. An opportunity for the affected person to obtain assistnace, and in serious or complex cases, legal representation
7. An opportunity for the affected person to present and dispute information and arguments, including in person (as opposed to in writing)

Question 6

When does section 3 apply?

Answer 6

When the administrative issue:

1. Affects any person
2. Has a material and adverse effect, and
3. Affects rights or legitimate expectations
   - But, substantive values and factors that inform the need for admin justice ought to determine whether s3 applies, rather than highly technical and abstract conceptual analyses of terms.

Question 7

How did the CC interpret the ‘materiality qualification’ in s3?

Answer 7

To mean that admin action will attract the standards of procedural fairness unless it has a ‘trivial’ effect (Joseph case).

Question 8

Which case extended the scope of application of procedural fairness under s3?

Answer 8

The Joseph case
- The CC extended the meaning of ‘rights’ by holding that the term includes ‘legal entitlements that have their basis in the constitutional and statutory obligations of government’.

Question 9

What is a legitimate expectation?

Answer 9

• It is less than a right
• It entails the expectation of a fair procedure being followed or of a certain outcome being afforded the expectant party
• The expectation must have a reasonable basis, having arisen from an undertaking given by an administrator or an administrator’s long-standing practice.

Question 10

Case and requirements for a legitimate expectation

Answer 10

Phillips case

1. The expectation must be ‘reasonable’
2. The representation giving rise to the expectation must be:
   a. Clear, unambiguous and devoid of relevant qualification
   b. Induced by the decision-maker, and
   c. One which it was competent and lawful for the decision-maker to make.

Question 11

What does s3(2)(a) state regarding procedural fairness?

Answer 11

It must be applied in a flexible manner.

Question 12

Discuss ‘flexibility’

Answer 12

It allows a context sensitive application of the requirements of procedural fairness on a case-by-case basis.

Question 13

Discuss ‘adequate’

Answer 13

Adequacy of notice is a relative concept, such that what is ‘adequate’, both in relation to the form and timing of notice, will depend on the circumstances of the case.
- POPCRU case

Question 14

Discuss ‘a reasonable opportunity to make representations’

Answer 14

• The opportunity must usually be afforded BEFORE a decision is taken.
• It enables the decision-maker to hear all points of view so as to arrive at an objectively justifiable conclusion.
• What is ‘reasonable’ will depend on the circumstances of the case, but typically, representations will be in writing.
• In order for the representations to be meaningful, it is accepted that the administrator must disclose to the affected person info that will inform the admin’s decision-making, such as -
• • Provisions in legislation or contract
• • Policy considerations that will be relied upon
• • Adverse or prejudicial info in the admin’s possession

Question 15

Discuss ‘a clear statement of the admin action’

Answer 15

• This is after the decision has been taken, those affected by it should be advised, in clear terms, of the decision.
• A clear statement ought to set out:
  a. What was decided
  b. Who the decision-makers were
  c. On what legal and factual basis the decisions were taken

Question 16

Discuss ‘notice of any right of review or internal appeal and notice of the right to request reasons’

Answer 16

• Decision-makers need not inform affected persons that they can pursue a judicial review
• If some other review or internal appeal is available, the decision-maker ought to advise affected persons of how long they have to pursue the review or appeal, where and with whom the review or appeal should be pursued, and any other formal requirements of the review or appeal.
• The administrator is not obliged to provide reasons, the obligation is that the affected person be informed of his right to request reasons.

Question 17

Discuss the elements required for s3(5) - ‘fair, but different procedure’

Answer 17

In order for an admin to rely on this provision:

1. An empowering provision must provide for a procedure to be followed
2. The contemplated procedure may differ from that set out in s3(2)
3. The different procedure must still be fair
4. The admin must follow the different procedure

Question 18

Which legislative provision applies to procedural fairness iro decisions that have a general impact?

Answer 18

Section 4 of PAJA.

Question 19

Does s4 envisage one-on-one engagement?

Answer 19

No, unlike s3.

- S4 demands various ways, sometimes by way of invitation to the public, or by notice in a national newspaper

Question 20

When does s4 apply?

Answer 20

Like s3, when rights are ‘materially and adversely’ affected by administrative action. The distinguishing trigger being that the impact on rights must be on ‘the public’ rather than on a person.

Question 21

Discuss ‘the public’ ito s4

Answer 21

• s1 provides that public includes any group or class of the public.
• When its impact is ‘equal and impersonal’, rather than merely specific
• Could also be if it has a significant public effect
• Scalabrini case

Question 22

Discuss the requirements of s4

Answer 22

An administrator taking a decision that will have a material and adverse general impact on the public may:

1. Hold a public inquiry
2. Follow a notice and comment procedure
3. Hold a public inquiry AND follow a notice and comment procedure
4. Follow a different but fair procedure prescribed by an empowering provision, or
5. Follow any other procedure that gives effect to section 3

Question 23

Discuss ‘a public inquiry’

Answer 23

• A formal hearing, in a public forum, where an administrator or a panel of administrators receives representations in relation to a decision that will have a general impact
• If deciding to hold a public inquiry, the admin must decide whether the conduct the inquiry himself or appoint a panel of suitably qualified person to conduct the inquiry; then the public must be invited to attend and participate
• It must be publicised effectively
• Afterwards, it is necessary for a written report to be compiled, recording the reasons for any decision to be taken or recommended.
• The report must be published in the Gazette and conveyed to those members of the public affected by the decision

Question 24

Discuss ‘a notice and comment procedure’

Answer 24

• Admins must issue a proper invitation to participate in the procedure, which must be publicised effectively.
• The invitation will be to give written comments on a proposed decision by a certain date
• Once received, the admins concerned are required to consider the comments and decide whether or not to take the intended decision, with or without changes, in light of the comments received.

Question 25

Discuss the consequences of a failure to follow a fair procedure as required by ss3 and 4

Answer 25

• In the event of admin action without complying with the demands of s3 and s4, his conduct will be reviewable into s6(2)(c) of PAJA on the grounds that it was PROCEDURALLY UNFAIR, and will typically be set aside as invalid.
• Allpay Consolidated: the court held that the determination of the procedural fairness of an admin decision is independent of the outcome of the decision.
• This means that the admin action can be found invalid, because of procedural irregularities regardless of whether the action would have been the same

Question 26

Discuss the ‘rule against bias’

Answer 26

1. In common law it was the nemo judex rule
2. In our constitutional era, the rule is recognised in s6(2)(a)(iii) of PAJA (the grounds of review of admin action)
3. An admin’s conduct may be set aside ito the rule against bias when he had in fact prejudged a decision and has thus actually failed to approach the decision with an open mind, or when he has created the impression, perception, apprehension or suspicion in the eyes of a reasonable person, on reasonable grounds, tha he might have been biased.
4. It will often be difficult to prove than an administrative is actually biased; thus, the reasonable impression, perception, apprehension or suspicion of bias, rather than a ‘real likelihood of bias’ will be enough to trigger the review ground.

Question 27

In which ways can an admin be actually biased, or may create a reasonable apprehension of bias?

Answer 27

1. The admin stands to gain financially from a particular outcome
2. A family member or friend stands to benefit from a decision he takes
3. Before a particular issue came before the admin, he already formed and expressed a firm view on that issue, such that no matter the submissions, he will not change her view
   4 The admin’s allegiance to the views or policies of the institution render him incapable of making an impartial decision