Procedural Pre requisites Flashcards
What three purposes does natural justice serve?
Baxter advocates that the principles of natural justice serve three purposes, namely:
- To facilitate accurate and informed decision-making;
- Ensure that decisions are made in the public interest; and
- To make provision for an important ‘process value’
What is the significance of procedural fairness in admin law?
One of the essential elements of administrative action in terms of s 33(1) is that it is procedurally fair. Fairness per se may be a relative concept. However, when dealing with administrative action, semblance of fairness does require fairness in terms of various concepts, not least of which is that both parties, alternatively all parties who may have an interest in the outcome of a matter are granted an opportunity to be heard and that the decision maker has no personal interest in the matter. Procedural fairness is a principle of good administration.
What principle of natural justice was emphasized in Cooper v Wandworth?
In Cooper v Wandsworth Board of Works, it was Erle CJ who stated that greater, as opposed to fewer, advantages could be gained from hearing the other side. The principle of audi alteram partem as ‘process value’ is best captured with reference to the Instruction of Ptahhotep, which reads as follows:
If you are a man who leads, Listen calmly to the speech of one who pleads; Don’t stop him from purging his body Of that which he planned to tell. A man in distress wants to pour out his heart More than that his case is won. About him who stops a plea One says: “Why does he reject it?” Not all one pleads can be granted, But a good hearing soothes the heart.
What is the significance of the nemo iudex in sua causa?
The nemo iudex in sua causa principle expressed as a ‘process value’ is also best captured by the heralded dictum of Lord Stewart in R v Sussex Justices, ex parte McCarthy that ‘justice should not only be done, but should manifestly and undoubtedly be seen to be done’.
What was referred to in the Minister v Bechler case?
In Minister v Bechler, Tindall ACJ referred to the resilient strength of the principles of natural justice as follows:
“…those fundamental principles of fairness which underly or ought to underly every civilized system of law.”
What significance has the principles of natural justice played in our Constitutional dispensation?
Baxter refers to the principles of natural justice as administrative fairness in action.
During the oppressive period of parliamentary sovereignty in South Africa, the Legislature was in a position by means of ouster or privative clauses to limit the application of natural law principles under the guise of deference to the Executive.
Consequently, South African administrative law in particular imported the doctrine of legitimate expectation in the Traub case permitting the courts to deport from a puritanical ‘natural law’ approach to a broad notion of procedural fairness which culminated in the expressive constitutional right to procedurally fair administrative action now enshrined by s33(1) of the Constitution and given effect to by the provisions of s3 (procedurally fair administrative action affecting any person) and s6(2)(c) (judicial review of administrative action that was procedurally unfair) of PAJA.
How is fairness determined?
As stated by Conradie JA in Metro Projects v Klerksdorp Local Municipality, fairness must be decided on the circumstances of each case.
In this regard see also the matter of Janse van Rensburg NO v Minister of Trade and Industry. Decisions made by administrators, acting either as officials or tribunals, are made in and under circumstances that may differ completely to a formal court procedure.
Cognizance of this fundamental difference is important for a reviewing court to take into account as a result of which one finds a more flexible approach to fair procedural administrative action articulated by the process as set out in section 3(2)(b)(i)-(v) of PAJA thereby giving effect to the right to procedurally fair administrative action contained in s33(1) of the Constitution.
In terms of PAJA, what are the requirements for procedural fairness?
Section 3(2)(b) of PAJA sets out the requirements of a procedurally fair hearing as follows:
“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 the nature and purpose of the proposed administrative action;
(ii) a reasonable opportunity to make representations;
(iii) a clear statement of the administrative action;
(iv) adequate notice of any right of review or internal appeal, where applicable; and
(v) adequate notice of the right to request reasons in terms of section 5.”
The word ‘must’ in s3(2)(b) makes it clear that the requirements of the section are peremptory or obligatory, however, s4(a) permits of a departure of these requirements where such departure would be ‘reasonable and justifiable in the circumstances’.
What must administrators take cognizance of when required to make decisions in terms of a statute?
When administrators are required to make a decision in terms of any statute, such statute would need to be consistent with the requirements set out in PAJA, alternatively where there is no legislation in place in terms of which administrative decisions are to be taken, then the administrator is under a duty to apply the PAJA provisions.
In Zondi v MEC for Traditional and Local Government Affairs, the Constitutional Court confirmed that decision-makers entrusted with authority to make administrative decisions in terms of any statute are required to do so in a manner that is consistent with PAJA, therefore enabling legislation must be read together with PAJA.
How has the doctrine of legitimate expectation developed in our law?
DEVELOPMENT OF THE DOCTRINE OF LEGITIMATE EXPECTATION
Legitimate expectation as accepted into our law by the Traub case is significant in so far as it extended the principle of natural justice beyond what Hoexter refers to as the ‘traditional sphere’ in terms of which we only view whether there has been any prejudice to existing rights.
The extension now brings about an enquiry as to whether the affected person held any legitimate expectation of ‘a certain outcome that will entitle him or her to a fair hearing in the circumstances’.
The appeal to ordinary common sense and logic drives one to comprehend the extension justified on the basis of abandoning a formalistic test confined simply to the notion of prejudice to a wider-all embracive value-based notion of whether there is any particular reason why fairness requires that a hearing be given before a decision is made in a case, as was acknowledged by the court in SARFU when it questioned ‘whether the duty to act fairly would require a hearing in those circumstances’. This is a sense, is resonant of the principle of legality. Legitimate expectation is now expressly captured and contained in s3(1) of PAJA.
When does section 4 of PAJA play a significant part?
ADMINISTRATIVE ACTION AFFECTING THE PUBLIC
Section 4 of PAJA applies whenever administrative action ‘materially and adversely affects the rights of the public’. The term ‘public’ is defined in s1 of PAJA to mean ‘any group or class of the public’.
Both ss3(1) and 4(1) refer to ‘materially’ but only s3(1) refers to ‘legitimate expectation’.
Does this mean that ss 3 and 4 are mutually exclusive, alternatively, how and to what extent are they to be linked?
The court in Zondi stated that in as much as the provisions of s3 of PAJA are of general application, so too are the provisions of s4. Accordingly, s4 must be ‘read together’ with the enabling legislation in question.
In the New Clicks case where enabling legislation failed to specify the procedure to be followed in the making of regulations, Chaskalson CJ noted that: ‘[t]he relevant requirements are therefore those stipulated by s4(1) of PAJA’. An administrator is vested with discretion to hold a public enquiry in terms of subsection (2) of s4. The administrator’s choice in this regard, it must be noted, is exempt from being considered ‘administrative action’ for purposes of PAJA in terms of s1(ii), as read with s6(1) of PAJA. Since the decision is not administrative and thus non-reviewable it would appear that the decision to invoke s4 is voluntary. However, as Hoexter correctly points out, nothing would prevent a litigant from relying on the principle of legality either to force an administrator to make a decision under s4(1) or to review a decision that has been made in terms of s4(1). The precise link between ss3 and 4 remains debatable. It is an important debate since if a hearing is conducted in terms of s(4) of PAJA to what extent, if any, must it also comply with the requirements of s3 of PAJA?
What significance does fairness play with regards to the principle of legality?
FAIRNESS AND THE PRINCIPLE OF LEGALITY
The dismissal of the head of the National Intelligence Agency was found by the court in Masetlha v President of the RSA to be governed more by the principle of legality and rationality than the LRA or even PAJA.
Application of the audi alteram partem principle as an essential ingredient of legality was recognised in the matter of Albutt v Centre for the Study of Violence and Reconciliation concerning the appropriate procedural exercise by the state President of his prerogative in terms of s 84(2)(j) of the Constitution. Essential to the ingredient of exercising rationality was an act on the part of the administrator to hear both sides.
What section of PAJA gives recognition to the principle of nemo iudex in sua causa?
NEMO IUDEX IN SUA CAUSA
Section 6(2)(a)(iii) of PAJA grants a court the power to review administrative action where the administrator or tribunal ‘was biased or reasonably expected of bias’. The nemo principle is premised on sound notions of common sense.
First, that decisions are more likely to be sound where the decision-maker is unbiased and second, the public will have more faith in the system of administrative justice where justice is not only done but seen to be done.
Simply put, the rule against bias, has to do with the rule of good and sound administration.
What test do the courts use to determine bias?
THE TEST FOR BIAS
It is presumed judicial officers are impartial when adjudicating matter. Initially our law required a ‘real likelihood’ of bias, as opposed to a mere ‘reasonable suspicion’.
Both tests found articulation by Greenburg J in City and Suburban Transport v Local Board Transportation, Johannesburg.
The test that ultimately came to be accepted in our law is the less onerous one of having to prove ‘reasonable suspicion’.
However, in S v Roberts, Howie JA, preferred qualifying the test by asking whether the judicial officer, or administrator, might (not ‘would’) be biased.
The Constitutional Court has indicated its apparent preference of ‘apprehension’ of bias as a form of terminology in favour of ‘suspicion’ of bias as is apparent from the SARFU case.
In conclusion, what can be said of the importance of procedural pre requisites in admin law?
CONCLUSION
The procedural pre-requisites for lawful administrative action are expressed in the mechanisms contained in terms of ss 3 and 4 of PAJA. The right to be heard and receive an impartial hearing, as ancient as such rights are, have evolved to be captured in our modern day legislation and accorded constitutional recognition and protection. Procedural fairness and the right to have an administrative decision reviewed for want of lack of compliance with a fair procedure will always need to be determined with regard to the circumstances as well as the principle of legality of each case.
