J MAEBELA (Joseph)
Take Home Test
Lecturer: Mr N Raboshakga
17 May 2018
Table of Contents
Take Home Test
1. Procedural Fairness (a) 1
2. Reasonableness (b) 3
3. Bibliography 5
The Minister of International Relations did not properly consult with Ms Engels, the process that was conducted by the Minister was procedurally unfair.
This is because according to section 33 of the 1996 Constitution of the RSA everyone is entitled to an administrative action that is lawful, reasonable and procedurally fair. According to the common law principle of audi alteram partem the administrator had to give the other party timely and proper notice of the intended administrative action and the author of the administrative act had to give the other party the opportunity to present his side of the case, unless the law provides the contrary to such an issue. Looking at the action of the Minister, the Minister did not give Ms Engels any notice of the intended administrative action or the opportunity to present her side of the story. Therefore, the Minister ignored the audi alterem partem rule unfairly, her conduct is as a result procedurally unfair. Ms Engels has a right to approach a court.
Looking at legislation the Promotion of Administrative Justice Act, when section 6(2)(c) is read with 3 and 4
S 6(1) any person may institute proceedings in a court or a tribunal for the judicial review of an administrative action;
(2) a court or tribunal has the power to judicially review an administrative action if;
(c) the action was procedurally unfair.
In determining if an administrative action was fair it will depend on the merits of each case. However, in order to give effect to a procedurally fair administrative action, an administrator must give a person the following minimum requirements: enough notice regarding the nature and purpose of administrative action (Nkomo Case, Bushula case, & the Cape Killarney), an appropriate chance to make representation, a clear statement detailing the administrative action, options of review or internal appeals, and adequate notice of the right to request reasons in terms of s 5.
(In Joseph v City of Johannesburg, the Constitutional court held that the discretion to enforce the above requirements rests with the court).
Ms Engels was not provided with any of the above, she was not informed of the nature and purpose of the administrative action, given a chance to make representation, any explanation of the administrative action, a chance to ask for reasons or information regarding her right to review or appeal the Minister’s decision. Therefore, the requirements above were not followed.
Issues regarding the Discretions of the court are found in section 3(3). If only it is reasonable and justifiable, the administrator may depart from section 3 (2) as found in section 3 (4). However, such a departure has to take the following factors into consideration:
1. The object of the empowering provision;
2. The nature and purpose of and the need to take administrative action;
3. The likely effect of the administrative action;
4. The urgency of taking the Administrative action;
5. The need to promote a good governance and efficient administration.
Section 3 (5) allows a fair procedure if the administrator has departed from the Usual procedure. An administrative action in section 1 of PAJA is defined as a decision of administrative nature by an organ of state or juristic person exercising power or performing a public function in terms of any legislation which adversely affects the rights of any person and which has a direct external legal effect. It must be noted that s3(1) applies if the rights or legitimate expectations have been violated and such must be materially and negatively affected by an action of the administrator. If the decision taken by the Minister had adversely affected the public, section 4 would have applied. Because this section states the types of public participations such as Notice and comment, public hearings, and the combination, in order to ensure procedural fairness. At common law there is also what is called Nemo iudex in sau causa.
This is a rule that is clearly against bias because for example it holds that no person may become a presiding officer on his own trial and that decision making must always be fair. A review is not only possible in terms of section 6(2) (c), but according to section 6(2)(a)(iii) a court has the power to review an administrative action where the administrator was biased or reasonably suspected of bias. In law there is a principle which state that “justice should not only be done, but also be seen to be done”.
In the SARFU case it was held that “decision makers must approach each matter with an open mind and must impartially consider both sides, before making a decision”. There must be nothing which indicates the existence of bias whether it is suspicion or an apprehension.
In conclusion of the above, the administrative action of the Minister was not procedurally fair, the Minister did not consider Ms Engel’s rights at any point of her considerations as reported by the media. No consultation with Ms Engels was conduct or a public participation of any nature. The administrative action violated the common law principles, legislation and the Constitution. Therefore, such unfair procedure is reviewable in court and/or it can be appealed internally.
This concerns the reasonability of the action of the Minister, the question is, whether the Minister’s administrative action was reasonable? Because ss 6(2)(f)(ii) state that anyone can refer a matter to court or a tribunal and such a tribunal or court can review an administrative action if the action was unlawful or irrational. And ss 6(2)(h) further holds that such an exercise of power or performance if it is lawful and is conducted for the purpose for which it was made and if it is unreasonable to the extent that no one could have exercised such power or function.
Therefore ss 6(2)(f)(ii) and ss 6(2)(h) gives a right to challenge the Minister’s decision on the basis of reasonableness, lawfulness and rationality. Ms Engels can thus challenge the decision of the Minister in court or tribunal to be reviewed.
The common law also differentiated between an appeal and a review. Various tests for reasonableness were available to test legislative, judicial and the so called pure administrative action. In Union Government v Union Steel Corporation it was held that only an indicated unreasonableness was considered and a combination of other grounds of review also were available. In the National Transport Commission v Chetty’s Motor Transport it was held that an Administrative action could be reviewed only if it was grossly unreasonable. The above makes an impression that such action should be unequal, oppress, mala fide and unclear.
The Constitution tests whether the reasons for the administrative action can be justified. According to Yvonne burns, Jacques de Ville and De Waal, Currie ; Erasmus we need to look if the action was reasonable, rational, proportional and suitable. In Kotze v Minister of Health the common law test was applied, However in Standard Bank of Botswana v Reynolds it was held that unreasonableness was an independent ground of review and the common law test as stated above was not applicable. In Roman v Williams the court extended the Grounds of Review to include suitable, necessary, and proportionality. Such grounds are reasonable. Looking at all the case law mentioned above an inference could be made that the courts are inconsistently with regards to the grounds of review.
Rationality focus on the biasness of the decision maker and it is objective (Carephone (Pty) Ltd v Marcus). Therefore, an action of the Administrator is reviewable if there is no connection that is rationally between the decision and the grounds found in ss 6(2)(f)(ii). There has to be proportionality, the administrator has to balance all appropriate means. Looking at the decision of the Minister, the decision was irrational, and it lacked proportionality because the Minister did not consider the individual rights of Ms Engels.
Since there is no clear definition of what is reasonable, the is no need for the action of the administrator to be perfect but the decision has to at least be satisfactory and legitimate. Therefore, reasonableness will depend on the circumstances of each case. The courts should demonstrate a respect for the law and the decisions of the administrator. The court should in essence only interpret the law and ensure that that the rule of law prevails.
In conclusion the Minister should have ensured that the rule of law is applied and not grant Dr G Mugabe immunity without consulting the courts and more so Ms Engels. Ms Engels can thus challenge the Minister’s decision for non-compliance with ss 6(2)(f)(ii) and 6(2)(h) of PAJA. The Minister’s decision was politically focused, although according to section 7 (2) of the Diplomatic Immunities and Privileges Act she has the power to confer such immunities she should have consulted all the relevant parties, hear them and make a relevant decision.
Cora Hoexter Administrative Law in South Africa (Juta Cape Town 2007)
Diplomatic Immunities and Privileges Act 37 of 2001 file:///C:/Users/Maebela/Downloads/diplomaticimmunitiesandprivilegesact.pdf accessed 16 May 2018
Promotion of Administrative Justice Act 3 of 2000 file:///C:/Users/Maebela/Downloads/PAJA.pdf accessed 16 May 2018