Procedural Fairness as a Standard of Just Administrative Action Flashcards
What was the common law position on procedural fairness pre-1994?
§ Administrative actions were considered fair if they complied
with the common law rules of natural justice.
.
What is natural justice?
§ Natural justice refers to the fundamental/basic principles of
fair treatment, especially in relation to procedure
What did natural justice ensure?
- 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.
What are the two common law rules of natural justice?
§ 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
List the categories of admin action with examples
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
Describe Procedural Fairness in the Constitutional Era (post 1994)
§ 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.
Application of Requirement of Fairness
§ 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
Section 4 of PAJA
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)
Importance of Constitution and PAJA Standards of Procedural
Fairness
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
How are the Section 195 Constitutional Principles upheld?
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
New Clicks case
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.
Drawbacks of Constitution and PAJA Standards of Procedural
Fairness
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
whats PAJA’s Response to the Drawbacks
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.
Procedural fairness under s3 of PAJA
§ Relates to administrative action affecting an individual.
§ Decisions with a specific impact.
Procedural fairness under Section 4 of PAJA
§ Related to administrative action affecting the public.
§ Decisions with a general impact.