Admin law

Procedural fairness
Common law 1994- decisions were considered fair if they compiled with the ‘rules of natural
justice’. These rules ensured that people adversely affected by decisions would know about
the decision and an opportunity to state their case and influence the outcome of the
decision to an unbiased decision-maker.
Requirements of fairness as demanded by the rules of natural justice remain in place post-
Apartheid, as they are protected by the right to AA in section 33 and PAJA. However they
have been supplemented, particularly in relation to admin action affecting the public.
Further requirements of fairness are now more generously applied than under common law.
At common law rules of procedural fairness were applied in a restrictive manner with
reliance on the classification of functions
Under the Constitution and PAJA, the requirements of fairness apply to all AA, and
sometimes even when the exercise of PP does not amount to admin action, in terms of the
principle of legality. The problem with procedural fairness standards is that they take time
and resources to uphold and fulfil, possibly to the extent of causing “administrative
paralysis” at the expense of efficiency1. What fairness demands, will depend on the
circumstance of each case.2

Procedural fairness in the constitutional era

Section 33- All administrative decisions are subject to procedural fairness standards.
When an AA is taken in a manner that does not comply with the standards imposed by
sections 3 or 4 or when it falls foul of the rule against bias, the action will be reviewable in
terms of section 6(2) of PAJA, and could be set aside as invalid in terms of section 8.
Section 6(2)(c)- courts power to judicially review admin action that was procedurally unfair
Section 6(2) (a)(iii) – review AA that was biased or reasonably suspected of bias.

Procedural fairness under PAJA

Section 3 of PAJA: Procedural fairness in respect of decisions that affect individuals
Procedural requirements of admin action that affects a person under S3(2)(b): 5
requirements

 Adequate notice of proposed administrative action

 A reasonable opportunity to make representations
 A clear statement of the administrative action taken
 Adequate notice of any review or internal appeal
 Adequate notice of the right to request reasons.

1
Joseph v Johannesburg
2
Zondi v MEC
Section 3(3) provides that in some situations, more demanding procedures may be required
in respect of admin action that affects a person such as: 2 demanding procedures

 An opportunity for the affected person to obtain assistance and in serious or

complex cases, legal representation, and
 An opportunity for the affected person to present and dispute information and
arguments, including in person (as opposed to in writing)
When does section 3 apply?
Section 3(1): Procedural fairness requirements apply when AA at issue
1. Affects any person
2. Has a material and adverse effect
3. Affects rights or legitimate expectations
Any person (Includes juristic person)
When it has a specific impact, rather than a more general impact on the public at large, or a
group or class of the public.
Materiality
Section 1 of PAJA does not have the materiality requirement, Section 3’s materiality
qualification is potentially significant, as it could be interpreted so as to result in a
substantial narrowing of the application of procedural fairness standards to a limited type of
administrative decision making. This is a problem because it may limit the constitutional
values of openness, accountability and responsiveness. However it may help reduce burden
imposed on the state administration that these standards entail.
Joseph- Con court has interpreted the ‘materiality qualification’ in section 3 of PAJA to mean
that AA will attract the standards of procedural fairness unless it has a ‘trivial effect’.
Rights and legitimate expectations
Rights
Rights in Section 1 includes common law rights, such as rights attaching to individuals under
the law of property, contractual rights, as well as constitution rights. 3
Joseph meaning of rights under S3 – Con court further extended the meaning of ‘rights’
under s3(1) by holding that the term includes ‘legal entitlements that have their basis in the
constitutional and statutory obligations of government.
Legitimate expectations
A legitimate expectation is something less than a right 4. It entails the expectation of a fair
procedure being followed or of a certain outcome being afforded the expectant party. First
recognised under the common law in Administrator Transvaal v Traub.

3
Grey marine v minister of public works
4
Walele
In the constitutional era, the requirements for a legitimate expectation were enumerated in
NDPP v Phillips:

 The expectation must be reasonable

 the representation giving rise to the expectation must be:
 Clear, unambiguous and devoid of relevant qualification
 Induced by the decision-maker and
 One which it was competent and lawful for the decision-maker to make
Under s3(1) of PAJA where a legitimate expectation is disappointed without a fair procedure
having been followed, the decision giving rise to the disappointment of the legitimate
expectation may be set aside on the grounds of procedural fairness. Premier Mpumalanga
v Executive committee is a pre-PAJA case that set aside a decision that disappointed a
legitimate expectation on the grounds of procedural fairness.
Walele- Section 3(1) of PAJA confers the rights to procedural fairness on persons whose
legitimate expectations had been adversely affected on the basis that the more specific
provision, section 3(1), had to be read as supplementing the more general provision Section
1.
The requirements of section 3 and how they apply
Flexibility
Importantly section 3(2) (a) tells us that the requirements of procedural fairness contained
in section 3 must be applied in a flexible manner.
Flexibility is crucial as it allows a context sensitive application of the requirements of
procedural fairness on a case-by-case basis.
Joseph- The flexibility inherent in section 3 means that, the courts will have a discretion as
to whether or not to enforce even section 3(2) (b) requirements in appropriate cases.
However, administrators would be ill –advised to overlook the requirements of section 3(2)
(b) in the normal course. If an administrator believes that a departure from the
requirements of section 3(2) is appropriate, he or she should expressly invoke section 3(4),
which reinforces the idea of flexibility by allowing administrators to depart from the
requirements of section 3(2) (b) where it is reasonable and justifiable to do so, taking into
account all relevant factors.
Factors include:

 Likely effect or impact of AA

 Urgency of the matter
 Need to promote an efficient administration
Requirements of Section 3
Section 3(2) (b)
Adequate notice
Person affected by administrative action must be formed before of the intended action.
Notice ensures you have the opportunity to engage before the intended action is
implemented.
Adequacy is a relative concept in relation to the form and timing of the notice, both depend
on the circumstances of each case. Police v Minister of Correctional Services
A reasonable opportunity to make representations
Opportunity to make representations must be afforded before a decision is taken5.
The reason for representations is not necessarily that the representations will be accepted,
but because they may have an important influence on the decision. The purpose of an
opportunity to make representations includes managing the impact of a decision on those
adversely affected.
What is reasonable will depend on circumstances of the case but typically the opportunity
afforded is to present representations in writing (listening to each individual would be a
burden on administrators). Section 3(3) administrators have the discretion to give affected
persons the opportunity to do more than just make written representations.
Section 3(3) opportunities to do more than written representations: (for illiterate people or
where documents are complex)

 Obtain assistance and in serious more complex cases legal representation

 Presenting and disputing information and arguments
 Appearing in person.
Timing for opportunity to make representations- The more complex the matter, the longer
the opportunity to make representations especially where a decision will be made based on
vast amounts of information. Urgency can make the period for representations shorter.
Meaningful representations- Administrator must disclose to the affected persons
information that will inform the administrator’s decision-making. This includes:

 Provisions in legislation or contracts that will inform the administrator’s decision

 Policy considerations that will be relied upon in making the decision, and
 Adverse or prejudicial information in the administrator’s possession.
A clear statement of administrative action

 What was decided

 Who the decision-makers were, and
 On what legal and factual basis the decision was taken.
A statement of this kind would enable a person affected to launch a meaningful appeal or
review in respect of the administrative action taken.
Notice of any right of review or internal appeal and notice of the right to request reasons

5
Sokhela v MEC Agriculture
The final requirements of procedural fairness in S3(2) (b) of PAJA demand that decision-
makers must inform affected persons that they are entitled to ask for reasons for the
decision in terms of section 5 of PAJA, and of any internal or statutory review procedures or
any appeal procedures available in respect of the decision. Need not to inform affected
person they can pursue judicial review in terms of section 6 PAJA.
A fair but different procedure Section 3(5)
Elements:

 An empowering provision must provide for a procedure to be followed

 The contemplated procedure may differ from that set out in section 3(2)
 The different procedure must still be fair
 The administrator must follow the different procedure
Procedural routes that an administrator may adopt under PAJA:

 Procedure set out in 3(2) supplemented by procedural steps in sections 3(3) where
circumstances may require.
 Depart from section3(2) and rely on section 3(4) taking into account the factors
listed in 3(4) (b)
 Section 3(5)
Section 4 of PAJA: Procedural fairness in respect of decisions that have a general impact
Unlike section 3, the provisions of section 4 do not contemplate for one on one
engagement.
Section 4 applies when rights are materially and adversely affected by administrative action.
The distinguishing trigger in section 4 is that the impact on rights must be on the public
rather than a person.
The public
S1 of PAJA provides for the purposes of S4, public includes any class or group of the public.
Scalabrini- Admin action affects the public when its impact is ‘equal and impersonal’ rather
than merely specific. In addition, administrative action that is ‘general’ and has a significant
public effect will arguably trigger the procedures in S4, even if the group or class of the
public affected is not clearly identifiable or cannot input itself.
Requirements of Section 4
An administrator taking a decision that will have a material and averse general impact on
the public may:

 Hold a public inquiry (S4(1)(a) and S4(2))

 Follow a notice and comment procedure ( S4(1)(b) and S4(3)
 Hold a public inquiry and follow a notice comment procedure (S4(1)(c))
  Follow a different but fair procedure prescribed by an empowering provision (S4(1)
(d)
 Follow any other procedure that gives effect to S3 (S4(1)(e))
Procedural fairness in respect of decisions that affect individuals and the public

 The gautrain had a specific impact on those that had their homes expropriated for
the building of the railway and a general impact on all people of Gauteng. These
decisions attract fairness standards imposed by section 3 in respect of their specific
standard as well as section 4 in respect of their general impact.
The consequences of a failure to follow a fair procedure as required

 When an administrator that performs AA and fails to follow a fair procedure as

required by sections 3 or 4 of PAJA, his conduct will be reviewable in terms of section
6(2)(c) on grounds that it was procedurally unfair and will be set aside as invalid.
(Earthlife v minister of energy)
 Allpay- Administrative action can be found invalid because of procedural
irregularities, regardless of whether the action would have been the same had a fair
procedure been followed.
The rule against bias
The common law rule against bias is recognised by incorporating in section 6(2)(a)(iii) of
PAJA, among the grounds of review of AA, that AA will be reviewable when the
administrator who took it was biased or reasonably suspected of bias.
Often difficult to prove if the administrator is actually biased, since bias manifests in the
mind of an administrator. The reasonable impression/suspicion of bias rather than ‘a real
likelihood of bias’ will be enough to trigger the review ground in section 6(2)(a)(iii) of PAJA
Bias can be reasonably presumed where:

 Family member benefits from decision

 Administrator stands to financially gain for a particular outcome
 He had formed an opinion or view before becoming an administrator
 Allegiances to a particular institution would make it difficult to be impartial.
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