Reasons

Question 1

What was the common law position on giving reasons?

Answer 1

o Common law did not recognize a general right to give reasons, where the statute authorising the admin action in question did not require the furnishing of reasons.
→ PRE-1994: The absence of such a provision was the norm.

Question 2

What does Mureinik say on giving reasons?

Answer 2

Providing reasons promotes a ‘culture of justification’.

Question 3

Baxter’s importance of reasons

Answer 3

o Pre-constitutional era, Baxter emphasized the importance of reasons as follows:
1. entails a duty to rationalise the decision.
2. satisfies an important desire on the part of the affected individual to know why a decision was reached.
3. Allows for Rational criticism of a decision
4. serve a genuine educative purpose.

Question 4

Whats the effect of absence of reasons?

Answer 4

Ø The absence of reasons for a decision, prevents an affected person
from protecting his or her administrative justice rights.

Question 5

New Const era on reasons

Answer 5

S 33: ‘Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons.’

Question 6

KOYABE V MINISTER FOR HOME AFFAIRS
on purpose for giving reasons

Answer 6

Purpose of reasons:
* to justify administrative action
* advance the constitutional requirements of ‘fairness, accountability & tranparency.’

Question 7

What’s the importance of giving reasons ito justifications?

Answer 7

An administrator that justifies its actions, by giving reasons, is ‘likely to increase public confidence in the administrative process and enhances its legitimacy.

Question 8

PAJA grounds of
review example for the importance of giving reasons

Answer 8

o Admin action may be judicially reviewed, if the action itself, is not rationally connected to the reasons given for it by the administrator.
o Where there are no reasons, this ground of review will be difficult to invoke, or it may be impossible to use this ground.

Question 9

WHAT IS CONSIDERED TO DETERMINE IF REASONS ARE ADEQUATE

Answer 9

It is important to strike balance between:
* Protecting the administrative justice rights of the individual
* Promoting administrative efficiency.
* PAJA is a Request-driven process.

Question 10

Give the definition of reasons

Answer 10

The explanation for a decision.

Question 11

Give the definition of findings

Answer 11

Findings of fact or law which are essential background to a decision but that are not in themselves a complete explanation for it.

Question 12

Give the definition of information

Answer 12

The same as findings

Question 13

Give the definition of evidence

Answer 13

Means the oral or documentary information provided to the administrator.

Question 14

what does s5(1) ito requesting reasons under section 5 of PAJA?

Answer 14

o Any person whose rights have been materially & adversely affected by administrative action and who has not been given reasons for the action may, within 90 days after the date on which that
person became aware of the action or might reasonably have been expected to have become aware of the action, request that the administrator concerned furnish written reasons for the action.

Question 15

What 2 questions
answered ito s5(1) of PAJA?

Answer 15

a) Who may request reasons?
b) What must that person do in order to obtain reasons?

Question 16

Who may request reasons ito the Consitution?

Answer 16

S 33(2) Constitution:
o Applies the right to everyone “whose rights have been adversely affected by the administrative action.”

Question 17

Who may request reasons ito the s5 of PAJA?

Answer 17

Applies to a person whose pre-existing rights have been adversely affected by an administrative action.
▪ Eg. Student in the university who holds an admission letter to study, will be entitled to request reasons in terms of S 5, if the Registrar decided to terminate his admission, because the student’s existing right to study would be adversely affected by that decision

Question 18

TRANSNET LTD V GOOD BROTHERS on who may request reasons

Answer 18

o The adversely affected right was the right to obtain information which the tenderer reasonably required to enable him to determine whether his right to lawful admin action had in fact been vilolated.
o Without reasons, the respondent is deprived of the opportunity, to which is entitled to consider further action.

Question 19

JOSEPH V CITY OF JOHANNESBURG on who may request reasons

Answer 19

o Material and adversely affected simply means the administrative action has a significant and not a trivial effect.
o Such person must not have been given reasons for the action.
o S 33(2) of the Constitution: Speak of the right to written reasons → Oral reasons will, therefore, not suffice.
o If the reasons are published, such reasons must be adequate and accessible

Question 20

S 5(1) on what a person should do in order to obtain reasons

Answer 20

A person who qualifies to request reasons may, within 90 days after the date on which that person became aware of the action or might reasonably have been expected to have become aware of the action, request that the administrator furnish written reasons for the action.

Question 21

Explain the concept of the 90-day period

Answer 21

o The 90 day period starts from either the date on which the requester became aware of the decision or might have reasonably have been expected to become aware of the action.

Question 22

What are the writing requirements?

Answer 22

Ø The request must be:
§ In writing; and
§ Addressed to the administrator concerned; and
§ Sent to the administrator by post, fax or e-mail or hand
delivered.

Question 23

Indication of administrative action acc to Regulation 27

Answer 23

Ø A request must:
§ Indicate the administrative action which affected the rights of the person making the request, and which rights of the person were materially and adversely affected by the administrative
action

Question 24

Details needed in the Request

Answer 24

Ø The Request must contain:
§ Personal details
§ Contact details of the requester

Question 25

General rule on Reduction or Extension of 90 Day Period

Answer 25

The 90-day period may be reduced or extended for a fixed period,
by agreement between the parties or failing which, by a court or tribunal on application by any of the parties concerned.

Question 26

Sikutshwa v MEC for Social Development on the reduction/extension of 90 day period

Answer 26

LQ: Can the 90 day period be reduced?

Decision:
that an administrator cannot with impunity wait
until the 90-day period has all but expired before furnishing reasons that she is obliged to provide.

On the contrary, the
administrator must furnish the reasons sought as soon as they are available.

Question 27

Jikeka v South African Social Security Agency on the Reduction or Extension of 90 Day Period

Answer 27

§ Contains a contrasting approach than in Sikutshwa
§ The court held:
* The legislature intended the administrator to have a period of 90 days within which to furnish reasons when it promulgated
section 5(2) of PAJA, unless circumstances warranted a
reduction in terms of section 9, or else section 9 would not
have been promulgated.

• Section 5(2) accordingly is a bar to the institution of
  proceedings prior to the expiration of the 90 day period unless by way of an application or by agreement;
• The proceedings can accordingly only be instituted after the expiration of the 90 day period provided for in PAJA, unless an agreement has been reached to reduce the time period or an application has been brought in terms of section 9(1), failing which it can be dismissed on the baiss of it being prematurely launched.

Question 28

What regulation administers how person may request for reasons

Answer 28

Regulations on Fair Administrative Procedures: Regulation 27

Question 29

what does s5(2) of PAJA state?

Answer 29

o The administrator to whom the request is made must, within 90 days after receiving the request, give that person adequate reasons in writing for the administrative action

Question 30

S 9 of PAJA

Answer 30

Also applies to this 90-day period
→ It may be reduced or extended, by agreement

Question 31

Regulations of Fair Administrative Procedures– Reg 28:

Answer 31

o Require the administrator to whom a request is made, to acknowledge receipt of the request, and either to accede to the request and furnish the reasons in writing or decline the request.
o The essential element of this duty is that the reasons must be adequate (as per the Constitution).

Question 32

S 5(3) of PAJA

Answer 32

If administrator fails to furnish adequate reasons for admin action, it must, in the absence of proof to the contrary, be presumed in any proceedings for judicial review that the admin action was taken without good reason.

Question 33

Case law on failure to give reasons
[supporting s5(3) of PAJA]

Answer 33

WESSELS V MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT
o In the circumstances, the responsible Minister’s failure to furnish reasons… cannot be seen other than proof, that the admin action was taken without good reason. Court set aside the decision

Question 34

S 2 OF PAJA as departure from requirements of s5 of PAJA

Answer 34

o Allows the Minister to exempt an administrator from the requirements of S 5, OR
o To vary such requirements in ‘order to promote an efficient administration and if it is reasonable and justifiable in the circumstances.’ (not yet utilised)

Question 35

S 5(4) OF
PAJA as departure from requirements of s5 of PAJA

Answer 35

o Provides that an administrator may depart from the requirement to furnish adequate reasons, IF it is reasonable and justifiable in the circumstances, and must forthwith inform the person making the request of such a departure

Question 36

Factors to be taken into account ito s5(4) of PAJA

Answer 36

i. The objects of the empowering provision;
ii. The nature, purpose and likely effectof the admin action concerned;
iii. The nature and the extent of the departure;
iv. The relation between the departure and its purpose;
v. The importance of the purpose of the departure; and
vi. The need to promote an efficient administration & good governance

Question 37

S5(4) OF PAJA ON THE REGULATIONS ON FAIR ADMINISTRATIVE PROCEDURES

Answer 37

o If an administrator declines a request for reasons i.t.o. S 5(4)(a), they must give reasons, in writing to the person who made the request, why the request was declined.
▪ There may be reasons other than those contemplated in S 5(4), for an administrator declining to give reasons, for example:
> The requester is not a person whose rights have been adversely affected, OR s/he has already been given reasons.

Question 38

S 5(5) OF PAJA:

Answer 38

o Administrator, when empowered by any empowering provision, to follow a procedure which is fair but different from provisions of S 5(2), may follow that different procedure.
> Regulations on fair administrative procedures: Regulation 28

Question 39

List the PREREQUISITES FOR REASONS

Answer 39

1. The reasons must contain the statement of decision.
2. The administrator’s findings on the facts, must be provided.
3. The reasons must not consist solely of the administrator’s conclusion, but the administrator’s
   reasoning process must be explained.
4. The reasons must not be merely a reiteration of the empowering provision.
5. The reasons must be worded in clear and unambiguous language.
6. Reasons must be intelligible and informative from the outset, not only with the benefit of hindsight.
7. If reasons refer to an extraneous source (e.g., applicable statutory provision), that extraneous source must be identifiable to the reasonable reader.
8. The reasons must be of appropriate length and level of detail.

Question 40

Explain the standard of adequacy of reasons

Answer 40

o Reasons that are inadequate are not reasons at all.
> This means that a requester who has been furnished with inadequate reasons, qualifies as a person
entitled to request reasons i.t.o. S 5(1), because they have not been given reasons.
o Adequacy suggests a fitness for purpose.

Question 41

WHAT IS THE PURPOSE OF REASONS IN THE CONTEXT OF PAJA & S 33 OF THE CONSTITUTION?

Answer 41

o To ensure that the person affected by admin decision knows why and how decision was made,
> So they can evaluate whether to let the matter rest,
> Make another application OR
> Challenge the decision if it contains an evident flaw.
» The adequacy of the reasons must place the affected person in such a position.

Question 42

general rule on the procedure and remedy for failure to be given reasons

Answer 42

A requestor faced with a refusal to give adequate reasons or any reasons at all, may make an application to court, for an order directing the administrator to give reasons.

Question 43

S 8(1) of PAJA Procedure and remedy for failure to be given reasons

Answer 43

o A court or tribunal, in proceedings for judicial review, in terms of S 6(1), may grant any order that is just and equitable, including orders–
(a) directing the administrator–
(i) to give reasons; OR
(ii) to act in the manner the court or tribunal requires.

Question 44

2009 Regulations setting out rules, regarding the procedure for AA

Answer 44

• An appropriate remedy to cure an inadequate statement of reasons is an order, compelling the delivery of reasons, that are up to the required standard.
• Adequacy of reasons must be seen in the context of whether they explain how the administrator reached the decision, if in a flawed way or not, allowing the requestor to weigh up his/her options

Question 45

What does INCONSISTENT SETS OF REASONS entail?

Answer 45

o An administrator may provide further or additional reasons on affidavit, if an application for the review of the decision is brought.
o What if these reasons are different from those that were initially given?

Question 46

De Ville on INCONSISTENT SETS OF REASONS

Answer 46

JUDICIAL SERVICE COMMISSION V CAPE BAR COUNCIL
o The reasons furnished upon request and subsequent reasons furnished in the review proceedings or on affidavit must be consistent.
o The latter reasons may be more detailed, but there should be no factual inconsistencies, including reasons mentioned for the first time at a later stage.

Question 47

MINISTER OF ENVIRONMENTAL AFFAIRS & TOURISM V PHAMBILI FISHERIES

Answer 47

o Schutz JA stated that adequacy–
‘Requires that the decision-maker, should set out his understanding of the relevant law, any findings on fact, on which his conclusions depend (especially if those facts have been indispute), and the
reasoning processes, which led him to those conclusions. He should do so in clear and unambiguous language, not in vague generalities or the formal language of legislation. The appropriate length
of the statement covering such matters will depend upon considerations such as the nature and importance of the decision, its complexity and the time available to formulate the statement. Often,
those factors may suggest a brief statement of 1 or 2 pages only.’
> The reasons provided must be true.
> Requirement of reasons is a constitutional one and must be invoked.
> Absence of reasons does not invalidate the administrative action, but it will be presumed that the decision was taken without good reason.