CHAPTER 8

LEARNING UNIT 8
REASONS & STANDING
REASONS
Overview & relevant provisions:
 Section 33(2) of the Constitution

 Section 5 of the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”)

 Every person is entitled to be given reasons of administrative decisions

 These reasons may be accessed upon request and must be delivered in writing & be adequate in content

 This serves as a tool to enable affected person to adequately decide on how they wish to proceed

 These reasons may also inform the affected person as to whether they have legal standing or locus standi to bring a
case against an infringing administrator
REASONS
 Giving of reasons – is a fundamental requirement of administrative justice

It is an important component of procedural fairness

Prior 1994 – there was no general duty to in SA law to give reasons:

 Either oral or in writing for administrative decisions

Interestingly – the common law required the giving of reasons in certain well defined situations,

Legislation occasionally imposed a duty to give reasons in particular statutes

REASONS
 Interim Constitution – Bill of Rights included a very generous right to written reasons for administrative
action

Final Constitution – Section 33(2) also contains such a right, though in rather more cautious terms
 It is given effect in section 5 of the PAJA

Reason giving may also be required by the constitutional principle of legality

REASONS
 Reasons are not really reasons unless they are properly informative

Reasons must explain why action was taken or not taken

An Australian court indicated that, reasons out to enable an aggrieved person to say:

 Even though I may not agree with it, I now understand why the decision went against me. I am now in a position
to decide whether that decision involved an unwarranted finding of fact, or an error of law, which is worth
challenging

 NB: Be able to distinguish between ‘reasons’ and ‘findings’

REASONS
Why give reasons?
 Giving of reasons is one of the good fundamentals of administration

 Reasoned decisions are generally preferred than unreasoned ones

 It is fair to inform affected individuals of the reasons for any action which has been taken against them

 From a constitutional point of view, the provision of reasons is an important mechanism for making
administrators accountable

 From the affected individual’s point of view, reasons offer considerable procedural benefits

 The right to reasons is regarded as a crucial component of ‘procedural fairness’ and ‘natural justice’
REASONS
In Koyabe vs Minister of Home Affairs:
where the applicants had been declared illegal foreigners, Mokgoro J recognized that the reasons
are ‘important in seeking a meaningful review by the Minister and in enhancing the chances of getting
the immigration agents findings overturned’

 Reasons may obviate the need for appeal or review by informing the aggrieved individual of how to
proceed with an application

 For example, once reasons have been given to an unsuccessful applicant for a licence, he may be able to rectify his
application and make a second successful attempt
REASONS
In an English case of R v Higher Education Funding Council, ex parte Institute of Dental Surgery:
Sedley J offered the following assessment of the disadvantages, as well as the benefits, of giving

reasons – The giving of reasons may among other things concentrate the decisionmaker’s mind on
the right questions; demonstrate to the recipient that this is so; show that the issues have alert the recipient to
a justiciable flaw in the process. On the other side of the argument, it may place an undue burden on
decision makers; demand an appearance of unanimity where there is diversity; call for the articulation
of sometimes inexpressible value judgements and offer an invitation to the captious to comb the reasons
for previously unsuspected grounds of challenge.
REASONS
Self study:
 The duty to give reasons at common law

 Reasons under the interim Constitution

Right to reasons and the PAJA:

 Section 33(2) of the Constitution is less generous than section 24(c) of the interim Constitution

 The latter gave right to written reasons where a person’s rights or interests were affected by administrative action

 Section 33(2), on the other hand, gives a right to written reasons only if one’s rights are adversely affected by
administrative action.
REASONS
 This more guarded language is taken up is section 5 of the PAJA, which adds that, rights must be
affected ‘materially’ as well as adversely.

See Goodman brothers case

See Kiva v Minister of Correctional Services

REASONS
Requesting reasons / who may request reasons?
 Section 5 of PAJA – governs the right to reasons for administrative action

Section 5(1) of the Act reads as follows:

 “Any person whose rights have been materially and 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.

 The Act thus follows the terminology of section 33(2) of the Constitution, though it is more cautious still:
 One is entitled to written reasons on request only if one’s rights are affected adversely and materially
REASONS
The requirements of adequate reasons:
 Section 5(2) of the PAJA – makes provision for ‘adequate’ reasons
In Rean International Supply Company (Pty) Ltd v Mpumalanga Gaming Board:

 It was held that it’s impossible to lay down a general rule of what could constitute adequate or proper reasons, for
each case must be depend upon it’s own facts. Much will depend on the statutory and factual context in which the
reasons are to be given.
REASONS
In Phambili case, Schutz JA regarded the following as an ‘apt’ description of what constitutes adequate
reasons:
That the decision maker should set out his understanding of the relevant law, any findings of fact on
which his conclusions depend (especially if those facts have been in dispute), and the reasoning
process 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 one or two pages only.
REASONS

Remedies available if adequate reasons are not provided:

 If the administrator declines or fails to give reasons, the aggrieved person may in terms of section 8(1)(a)
(i) of the PAJA apply for an order directing the administrator to give reasons or simply apply for judicial
review of the administrative action.
STANDING
STANDING
 In South African law it is not enough for an applicant to be able to show that an administrator has been
acting illegally.

Like any other litigant who sues in a court of law, the complainant must have standing, or locus standi in
judicio

 Standing encompasses the following:

 The capacity to sue; and
 Sufficient interest in the case

Because of its implications for access to justice, the latter is a significant aspect of judicial review in
administrative law
STANDING
The common law rules of standing and their significance
 Standing relates to the appropriateness of the party who seeks relief from the court

 The issue of standing is divorced from the substance of the case

 It is therefore a question to be decided in limine, before the merits are considered

 NB: At common law, the applicant for review must be able to show a sufficient, personal and direct interest in the case

 The interest required is not a subjective one:

 The court is not concerned with the intensity of the applicant’s feelings of indignation at the alleged illegal action, but with an
objectively defined interest
STANDING

What sort of interest will qualify?

 The common law has always given a cautious answer to this question

 In particular, a citizen’s concern with the legality of governmental action is not regarded as an interest that
is worth protecting in itself

 The applicant must be able to point to something beyond a mere concern with legality:
 Either to a right or to a factual interest
 Typically a financial one

 Our common law recognizes no action popularis or class action whereby an individual or a group not
personally affected may vindicate the public interest by exposing an illegality
STANDING
 See Ferreira v Levin NO 1996 (1) SA 984 (CC) para 294

Standing under the Bill of Rights

 See section 38(a) of the Constitution (Read)

Section 38 introduces a radical departure from the common law in relation to standing

Section 38 Seem to reflect the position at common law

So, to a certain extent, do section 38(b) and (e)

STANDING
 Our courts have sometimes recognized special cases in which a person may sue at common law on behalf
of someone who is not in a position to do so

 Just as they have sometimes allowed an association to act on behalf of it’s members

 Section 38(c) and (d), however, go far and beyond the common law

 The former allows a class action

 And the latter actually recognizes an action popularis
STANDING
 NB: section 38 of the Constitution refers specifically to cases in which a right in the Bill of Rights is
infringed or threatened.

 It does not cater for cases falling outside the Bill of Rights, such as common law review and review of
non-administrative action in general

 Including review under the principle of legality; or

 The rule of law
STANDING

The requirements for standing

 While the provisions of section 38(a) apparently states the position at common law.

They also encompass the common law position

This makes it convenient to deal with the common law and the Constitution together, under the various
heads of section 38
STANDING

Requirements of standing as follows:

 (a) anyone acting in their own interest

 Sufficient interest

 Personal interest

 Direct interest

 Exception to the common law requirements

STANDING

 (b) Acting on behalf of another person who cannot act in their own

 (c) Acting as a member of, or in the interest of, a group or class of persons

(d) Acting in the public interest

 For instance, public interest litigation

(e) An association acting in the interest of it’s members

STANDING
NB: The standing of administrators
 Administrators too, may want to go to court and challenge their own decisions or those of other administrators

 This can be done on the basis that the decision was made erroneously or fraudulently

When will they have standing to do so?

 The administrator exercising statutory functions in the public interest will generally be found to have necessary standing

 Even if the enabling legislation says nothing about its competence to approach a court for relief

 In this regard, the issues of capacity and interest, though they are theoretically distinct, tend to overlap in the cases and even to merge;

 In the absence of an express power to litigate, the nature of the administrator’s interest in the matter may well inform the court’s
interpretation of the capacity conferred on it by the relevant legislation
STANDING
STANDING
STANDING
STANDING
END OF LEARNING UNIT 8