Procedural fairness

Question 1

What was the common law position on procedural fairness pre-1994?

Answer 1

§ Administrative actions were considered fair if they complied
with the common law rules of natural justice.
.

Question 2

What is natural justice?

Answer 2

§ Natural justice refers to the fundamental/basic principles of
fair treatment, especially in relation to procedure

Question 3

What did natural justice ensure?

Answer 3

• Essentially ensured that people who were likely to be
  adversely affected by a proposed decision would:
• Know in advance
• Be given adequate opportunity to participate in the decision making by making representations or stating their case to an unbiased decision-maker.

Question 4

What are the two common law rules of natural justice?

Answer 4

§ Audi Alteram Partem
* Mainly applied to cases where someone was deprived of
an existing right (so not mere applicants); and
* Only to judicial and quasi-judicial conduct (unless a
legislative provision expressly or by necessary
implication require the application of the maxim to other
types of administrative action).
§Nemo Judex in sua causa esse debet
* This is the rule against bias.
* It was applied more in judicial and quasi-judicial
contexts, and not to other types of administrative conduct
that were of a legislative or purely administrative nature

Question 5

List the categories of admin action with examples

Answer 5

Law-making nature Generally applicable regulations.

Judicial nature Decisions of an administrative appeals
tribunal like the CCMA.

Quasi-judicial nature Granting of a license to trade.

Ministerial nature Paradoxically implied that they administrator had no discretion – Minister grants permit for camping when presented with an application and a camp fee.

Purely administrative nature
Granting a permit to catch
crayfish as a recreation, not for a living, where the official
exercises some but very limited discretion

Question 6

Describe Procedural Fairness in the Constitutional Era (post 1994)

Answer 6

§ Section 33 of the Constitution provides the right to just
administrative action; and
§ Sections 3 & 4 of PAJA.
* These sections give more detailed content than section 33 of the Constitution as to the requirement of procedural
fairness.

Question 7

Application of Requirement of Fairness

Answer 7

§ Under Section 33 and PAJA the requirements are applied
more generously than under common law.
§ The requirements of fairness now apply to all administrative
action.
§ Sometimes, the requirements of procedural fairness apply to
public power that is non-administrative action , in terms of
the principle of legality in section 1(c) of the Constitution

Question 8

Section 4 of PAJA

Answer 8

In cases where an administrative action materially and
adversely affects the rights of the public, an administrator, in
order to given effect to the right to procedurally fair
administrative action, must decide whether:
§ To hold a public inquiry in terms of subsection (2); or
§ To follow a notice and comment procedure in terms of
subsection (3); or
§ To follow the procedures in both subsections (2) and (3)

Question 9

Importance of Constitution and PAJA Standards of Procedural
Fairness

Answer 9

The requirement of procedural fairness under section 33 of the
Constitution and sections 3 & 4 of PAJA are important, because
they uphold the section 1(d) constitutional principles of:
§ Accountability
§ Responsiveness
§ Openness

Question 10

How are the Section 195 Constitutional Principles upheld?

Answer 10

Impartiality, fairness, equity, absence of bias in the manner in which public administration provides services.
ØResponsiveness to people’s needs and public participation in
policy-making
Ø Accountability of public administration
Ø Transparency of the public administration with timely,
accessible and accurate information

Question 11

New Clicks case

Answer 11

Section 57(1)(b) of the Constitution

• The Democratic government that is contemplated is a participatory democracy which is accountable, transparent and makes provision for public involvement.
• The principle of consultation and involvement has become a distinctive part of our national ethos.
• The right to speak and be listened to is part of the right to be a citizen in the full sense of the word.
• In a constitutional democracy dialogue and the right ot have a voice on public affairs is constitutive of dignity.

Question 12

Drawbacks of Constitution and PAJA Standards of Procedural
Fairness

Answer 12

Procedural fairness standards take time and resources to uphold and fulfil.
Ø Procedural fairness standards may cause administrative paralysis
Ø In relation to decisions affecting large numbers of people, it may be burdensome for administrative officials to:
* Give prior notice of an intended decision
* Listen to and consider representations
* Give notice of the decision taken
* Give notice of opportunities to appeal

Question 13

whats PAJA’s Response to the Drawbacks

Answer 13

Ø Procedural fairness standards will depend on the circumstances of each case.

Ø Joseph & Others v City of Johannesburg and Others
§ There are certain minimum requirements of procedural
fairness, but they can be applied in a flexible manner.
Ø Administrators can tailor the content of procedural fairness depending on the circumstances of the case as a result.

Question 14

Procedural fairness under s3 of PAJA

Answer 14

§ Relates to administrative action affecting an individual.
§ Decisions with a specific impact.

Question 15

Procedural fairness under Section 4 of PAJA

Answer 15

§ Related to administrative action affecting the public.
§ Decisions with a general impact.

Question 16

Conflicts of law

Answer 16

Ø Where empowering legislation imposes specific procedural
fairness standards that fall short of the PAJA standards, the
empowering legislation must be read with PAJA.

Question 17

Failure to Comply with Section 3 or 4 of PAJA

Answer 17

Ø Section 6(2)(c) of PAJA
§ A court or tribunal has the power to judicially review an
administrative action if the action was procedurally unfair.
Ø Section 6(2)(a)(iii) of PAJA
§ A court or tribunal has the power to judicially review an
administrative action if the administrator who took it was
biased or reasonably suspected of bias.

Question 18

s3 of PAJA

Answer 18

Ø (1) Administrative action which materially and adversely affects the rights or legitimate expectations of any person must be procedurally fair.

Ø (2)(a) A fair administrative procedure depends on the circumstances of each case.
Ø (2)(b) In order to give effect to the right to procedurally fair administrative action, an administrator, subject to subsection (4), must give a person referred to in subsection (1):
§ (i) Adequate notice of nature and purpose of the proposed administrative action
§ (ii) A reasonable opportunity to make representation.
§ (iii) A clear statement of the administrative action
§ (iv) Adequate notice of any right of review or internal
appeal
§ (v) Adequate notice of the right to request reasons in terms of section 5.

Ø (3) In order to give effect to the right to procedurally fair administrative action, an administrator may, in his or her or its discretion also give a person referred to in subsection (1) an
opportunity to:
§ (a) Obtain assistance and in serious and complex cases legal
representation
§ (b) Present and dispute information and arguments
§ (c) Appear in person

Question 19

How do we apply section 3 of PAJA
(Ito s3(3) of Paja)?

Answer 19

Ø Section 3(3) of PAJA
§ Provides that in some situations, more demanding, stringent
or rigorous procedures may be required in respect of
administrative action that affects a person/individual.

Question 20

Whats the approach that must be adopted when applying s3 of PAJA?

Answer 20

A substantive approach must be adopted in determining
whether section 3 of PAJA is applicable to administrative
action, rather than a formalistic approach that considers the
highly technical and abstract conceptual analyses of terms
such as legal effect and rights.

Question 21

What should consideration be given to when applying s3 of PAJA?

Answer 21

substantive values and factors that inform the need for administrative justice in particular cases.

These include:
* The role of procedural fairness in affirming the dignity of all those affected by public action.
* Raising the quality of decision making
* Achieving a culture of accountability, openness and transparency, especially in public administration.
* Fostering trust in state administration and more generally democracy.

Question 22

To whom does s3 of PAJA apply?

Answer 22

§ Section 3 of PAJA applies to:
* A natural person/individual
* That is specifically impacted by an administrative action.
§ Section 3 of PAJA also applies to:
* A juristic person
* That is specifically impacted by an administrative action.
§ This makes it difficult to distinguish between individuals and
groups for the purpose of Section 3 and 4 of PAJA.

Question 23

What are the material and adverse affects of s3 of PAJA?

Answer 23

The administrative action will be subject to the
standards of procedural fairness, unless it has a trivial affect.
§ This narrows the interpretation

Question 24

Joseph v City of Johannesburg on material and adversely affects

Answer 24

The Constitutional Court interpreted the materiality
qualification to mean that administrative action will be
subject to the standards of procedural fairness unless it has a trivial effect.

Therefore the rule is as follows:
§ Trivial Effect = Action not subject to Administrative Action
§ Non-trivial effect = Action is subject to Administrative
Action.

Question 25

What are rights/legitimate expectations?

Answer 25

§ A legitimate expectation is:
* Something less than a right
* Can arise in respect of a merely “privilege or benefit
which it would be unfair to deny a person without giving
him a hearing (Walele v City of Cape Town)

Question 26

What doe rights/legitimate expectations entail?

Answer 26

• Entails an expectation of:
  ¨ A fair procedure being followed; or
  ¨ A certain outcome being afforded the expectant
  party

Question 27

what are the conditions of a legitimate expectation under common law?

Answer 27

§ Under common law a legitimate expectation must:
* Have a reasonable basis; and
* Arise from:
¨ An undertaking given by an administrator; or an administrator’s long-standing past practice

Question 28

What are the requirements for a legitimate
expectation according to National Director of Public
Prosecutions v Phillips in the constitutional era

Answer 28

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

Question 29

Procedural fairness under s3(1) of PAJA

Answer 29

• Where a legitimate expectation is disappointed (not satisfied) without a fair procedure being followed, the decision giving rise to the disappointment of the legitimate expectation may be set aside on the grounds of
  procedural unfairness since the person was not given the opportunity to participate in the decision leading to the disappointment of the expectation.

Question 30

Walele v City of Cape Town on s3(1) of PAJA

Answer 30

Section 1 of PAJA and Section 3(1) of PAJA must be
read together to confer the rights to procedural
fairness on persons whose legitimate expectations
have been adversely affected/disappointed.