COURSE CODE : ADL2601/101

STUDENT NUMBER : 57912041

ASSIGNMENT NUMBER: 1

UNIQUE NUMBER : 586933

NAME: NOMUZIKAYISE NGWENYA

TOPIC: PROCEDURAL FAIRNESS IN ADMINISTRATIVE

LAW IN TERMS OF THE PAJA

INTRODUCTION
The constitution provides that Administrative Action (herein referred to as AA) must be
lawful, reasonable and procedurally fair1. It that reasons must be given for administrative
action that adversely affects rights.2 The creation of the Promotion of The Administration of
Justice Act 3 of 2000 (herein referred to as PAJA) provides more information on how such
duties must be carried out by the Administrators.
The starting point in answering this assignment question is establishing the meaning of
procedural fairness as provided by the PAJA. This is found in sections 3 and 4 of the PAJA
respectively. It comes in two fold:
1. Usually, it is unfair for an administrator to make a decision that adversely affects
someone without consulting them first. An administrator should not make a decision
affecting someone without first hearing what they have to say3. This is known as
'audi alteram partem' - which means one should hear what the person who will be
affected by the decision has to say before deciding.
2. The second part is that the decision-making process must be free from any real or
apparent partiality, bias.4 This is known as nemo iudex in sua causa. The decisionmaking process must be fair and impartial, plus, the person making the decision must
not have any sort of interest in the matter, be it financial5 or personal.6
In order to get to the crux of the question, one has to understand what an administrative
action is. An administrative action is a decision that affects the rights of members of the
public. Such decisions could have either a particular impact -that is, they affect the rights of a
particular individual or a more general impact - that is, they affect the public. The PAJA deals
with the procedures to be followed by an administrator before making decisions that affect
both a particular person or people (s 3) and those that affect the public generally (s 4)
respectively.

Decisions affecting any person (Section 3)

1 The Constitution of The Republic of South Africa, 1996 s33(1)
2 Ibid s33(2)
3 L. Baxter Administrative Law, 1991 542
4 Ibid 557
5 Rose v Johannesburg Local Road Transportation Board 1947 4 SA 272 (W)
6 Liebenburg v Brakpan Liquor Licensing Board 1944 WLD 52 at 54-55

S3 of the PAJA deals with fair procedures when making decisions with a particular impact. It
states that a fair administrative procedure depends on the circumstances of each case.7 In
Masetlha v President of The Republic of South Africa the judge held that the very essence of
the requirement to act fairly is itself flexibility and practibility.8
S3 (2) (b) The peremptory requirements for procedural fairness and s3 (3) the discretionary
requirements for procedural fairness;
There are some procedures that an administrator: Must follow before making a decision
(mandatory procedures); and some additional procedures that an administrator must consider
following, but does not have to follow (discretionary procedures).
1. Mandatory procedures :There are five of these, These are that the affected person must be
given-before the decision is taken Adequate notice of the nature and purpose of the proposed administrative action9;
Adequate notice of the nature and purpose of the administrative action "Adequate notice"
means more than just informing a person that an administrative action is being proposed. The
person must be given enough time to respond to the planned administrative action. The
person also needs to know enough information about the proposed administrative action to be
able to work out how to respond to the proposed action10. They need to know the nature of the
action (what is being proposed) and the purpose (why is the action being proposed).

A reasonable opportunity to make representations11;

A reasonable opportunity to make representations the length of time a person should be given
to make representations will be different in different circumstances. This should include an
opportunity to raise objections, provide new information, or answer charges. A "reasonable
opportunity to make representations"12 can sometimes mean that a person affected by
administrative action must be given a hearing where that person can make a verbal input. At
other times, it may only mean that a person should be allowed to submit written
representations to an administrator who must read and think about them.
7 PAJA s3(2)(a)
8 2008 1 BCLR 1 (CC); 2008 1 SA 566 (CC) at para 190
9 S3(2)(b)(i)
10Just Administrative Action J Klaaren, G Penfold,Woolman, s et al
Constitutional Law of South Africa. 2nd edition. Kenwyn. Juta ,2008 pg 63-98
11 S3(2)(b)(ii)
12 ibid

After the decision is taken A clear statement of the administrative action13;

A clear statement of the administrative action. An administrator must clearly state what the
administrative action is that will be taken.14 A person affected by the administrative must
understand what is likely to happen. This will assist the person affected to respond to the
action. Using plain and straightforward language will help people to understand exactly what
is being planned. The affected person should at least be able to tell from the statement what
has been decided, when, by whom and on what legal and factual basis.15

Adequate notice of any right of review or internal appeal16

Adequate notice of any right to appeal or review People affected by an administrative action
can challenge that action if they think the action was wrong. This could be done by going to a
higher level within the government, if that is possible. (Internal appeal) If the law does not
provide for that, they can take the matter straightaway to court for judicial review. An
administrator must tell the person that they have these rights. The administrator must also
inform the person about the details and procedures for exercising this right in advance - that
is, without waiting for the person to ask. Information should be provided on at least the
following: Where the appeal can be made; When it must be made; and How to make the
appeal.

Adequate notice of the right to request reasons in terms of s 5 of the PAJA.17

Adequate notice of a person's right to request reasons People affected by the administrative
action must be told that they have the right to request reasons for that action. The
administrator must also pro-actively inform the person about the details and procedures to
exercise this right - that is, without waiting for them to ask. Where the request can be made;
When it must be made; How to request reasons; and Where to get assistance.
In the Joseph v City of Johannesburg18 Case it was held that not all 5 of the guidelines in S3
(2) (b) need to be taken into account in determining whether or not there has been procedural
13 S3(2)(b)(iii)
14 De Ville JR The judicial review of administrative action in South Africa
(2005) 255
15Administrative Law in South Africa, C Hoexter , 2nd edition, 2012 pg 376
16 S3(2)(b)(iv)
17 The paragraph that follows is written as is found in s5 of the PAJA
18 2010(4) SA 55 (CC)

fairness. This is because S3 (2) (a) limits the application of the minimum requirement of
procedural fairness to the individual circumstances of the case. Thus during the process of
administrative action, the administrator must abide by these 5 minimum standards, but when
under judicial review, the courts have the discretion as to which standards they want to
enforce in determining whether procedural fairness is present.
Discretionary procedures in addition to the mandatory procedures, to ensure fairness, every
administrator must consider the following three additional procedures19:

Providing assistance in responding to the action- In serious or complex cases, this

may mean that a person must be allowed to have legal representation.
A person should be given an opportunity to present information and arguments in
their favour and to challenge information and arguments against them.
A person affected may need to be given the opportunity to appear in person before the
administrator.

These provisions look good on paper, however, regard must be given to illiterate or
uneducated people, who do not know how to present their cases.

S3(4) Departures from the requirements set out in s3(2)

the PAJA also provides for a limitation to the right to fair procedure, and these are found in
s3(4) where it states that If it is reasonable and justifiable in the circumstances, an
administrator may depart from any of the requirements referred to in subsection (2) s3(4)
has a list of factors that determine whether a departure from the right is reasonable and
justifiable:
i.
ii.
iii.
iv.
v.

The objects of the empowering provision

The nature and purpose of and the need to take administrative action
The likely effect of the administrative action
The urgency of taking the administrative action or the urgency of the matter and
The need to promote an efficient administration and good governance

Also important to note that since the Constitution is hat must come first in terms of law in
South Africa, any limitation clause of any other act- including the PAJA must comply with
s36 of the Constitution.

Decisions affecting the public (Section 4)

S4 of the PAJA says that the administrator has to decide which public procedures should be
followed when administrative action has a general impact. These public procedures are
designed to involve the public in the decision, to provide accountability, and to gather
information to help the administrator. They are: A public inquiry A notice and comment
19 S3(3)

procedure; or Another fair procedure. It is mandatory to make this decision, but the
administrator has discretion to choose which procedures to use.
i.

ii.

Notice and comment20- There are four basic steps to a notice and comment
procedure:
1) The public must be given enough information about the proposed administrative
action to allow them to make meaningful representations. That is, a notice must be
given, which sets out enough information on the proposed action.
2) The administrator must call for comments on the proposed administrative action,
and must allow enough time for those comments to be made.
3) The administrator must consider the comments received.
4 )The administrator must decide whether or not to take the proposed administrative
action, with or without changes.
Public inquiry21 - There are four basic steps to a public inquiry procedure;
1) Before the inquiry, the administrator must decide whether to conduct the inquiry
themselves or to appoint another person or a panel of people to conduct it.
2) The administrator must give notice of the inquiry. This must include details and
information about the matter and issues being investigated in the public inquiry.
3) A public hearing must be held.
4) After the inquiry, the administrator must compile a written report and publish a
summary of the report.

Application of the question to the law

The point of departure when applying the set of facts given is to establish whether the Rate
Payers Association (herein referred to as RPA) is a juristic person as an individual or public.
It could be either public or as a juristic person.
If we use s4 to answer this question, we would be implying that the RPA is disputing the
erection of the desalination of water structure in their capacity of being a body that represents
the interests of the public as was set out in the Bato Star22 case, where an administrative
action affecting the public was taken in regard to fishing quotas.
However, on reading the question more carefully, it indicates that the RPA is the only
association alleging that it was not consulted in good time, therefore it is not acting in its
capacity as representing the public but rather itself as a juristic person. Therefore, s3 is what
is applicable in this question. In order to establish whether this is a s3 PAJA fairness issue, we
need to look for certain things within the set of facts given. And these are:
20 S4(1)(b)
21 S4(1)(a)
22 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and
Others (CCT 27/03) [2004] ZACC 15; 2004 (4) SA 490 (CC); 2004 (7) BCLR (CC)
(12 March 2004)

1)
2)
3)

The exists a right/ legitimate expectation,

Which is adversely affected (by the administrative action). {The test is that the
adverse effect must be significant which became more difficult to satisfy.}
And is materially affected (by the administrative action)23

When trying to see if the person, in this case RPA has a right, relevant here are the cases of
Walele24 and Joseph25 in that they are both very extreme on the opposite ends of the spectrum
as to what constitutes a right.
Waleles interpretation of what constitutes a right is criticised for being narrow and taking
the definition back to the pre-democratic era26. Here it was held that in order for a right to be
adversely and materially affected, there must be a pre-existing vested right which is
affected27. The background of this case is that Walele was denied a hearing before his
neighbours building plans were approved despite the fact that the approval affected his
peculiar interest (his property would become devalued). The court reasoned that his property
rights were not affected by the approval nor could he prove that the approval would reduce
the value of his property. The court also noted that for a legitimate expectation, there must
exist the capacity to affect legal rights.
When applying the case ruling to our set of facts, one could say that the property rights of
RPA were not affected because the area was in need of more water since it had been
experiencing water shortages and therefore while the construction of might have adverse
environmental effects on the land, using the balancing of rights test, provision of water for
the people would be better than some environmental damage.

Joseph moved away from the concept of vested rights/private law rights. In this case
the electricity of a building was cut off. The tenants had paid their landlord but the
landlord failed to pay the municipality. Despite the argument by the municipality that
they had no contractual relationship with the tenants, the court held the tenants public
law right was affected- a general duty to provide core socio-economic essentials. The
tenants should have been afforded a hearing before their public law right was
adversely affected. Accordingly it is possible for a statutory and general constitutional
duty to trigger procedural fairness. Thus the tenants had a right to be heard before
their electricity was cut off. The court noted that procedural fairness exists in order to

23 Op Cit note 15
24 Walele v City of Cape Town and Others (CCT 64/07) [2008] ZACC 11; 2008 (6)
SA129 (CC) ; 2008 (11) BCLR 1067 (CC) (13 June 2008)
25 Joseph v City of Johannesburg 2010 (4) SA 55 (CC)
26 Op Cit note 15
27 Op Cit note 25

allow people to influence decisions which affect them28. The purpose of which is
openness, transparency and accountability.
Hoexter criticises this decision for being too broad and having a very flimsy foundational
base as it makes it difficult for public law rights to be developed in the future29. Using the
Joseph ruling, RPA has therefore the right to be heard before the construction is made
because of the legal expectation for them to be given one. Further, RPA was not asked for
their input in the matter- which again was a violation of their legal right awarded to them not
only by the PAJA but also the local act governing the matter in hand Environmental Impact
Assesment (EIA). Also, according to s5 of the PAJA should have been given reasons as to
why the construction of the structures for the desalination of water was approved by the EIA.
This was not given to them and therefore the relevant department who made the decision
must set it aside and rather only make a decision once the RPA has been given a chance to
present their input in the matter. However the RPA must know that the right to make an input
does not necessarily mean that a decision will be made in their favour, but rather that the
procedure that has been taken is a fair one in terms of the PAJA.
The local company however can make use of the limitations to the rights in the PAJA if it
meet the requirements set out in s3(4). They can use the fourth and fifth factors, mainly:
iv: The urgency of taking the administrative action or the urgency of the matter and
v: The need to promote an efficient administration and good governance
The facts of this question are also similar to those of Earthlife30 case, where Earthlife Africa
was an NGO that helped to campaign against environmental injustices (as in our case the
RPA) in the Cape Town area, and, as in our case as well, to participate in environmental
decision-making process with a view to promoting and informing good governance and
decision making. The RPAs basis for court action is that the Western Cape Department of
Environmental Affairs did not award them a fair hearing before taking the decision to grant
authorisation, to which the RPA can use the provisions of s3(2)
CONCLUSION
In my opinion, the relevant decision making authority authorities can argue that the decision
to have water desalinated is an important one that had to be made quickly as it was urgent,
and such haste decision making would be a show of good governance as it would be assisting
the local people to have better, healthier water for them to use. Before the RPA can ask the
court to review the administrative action, it must comply with the important rule found in the
28 ibid
29 Op Cit note 15
30 Earthlife Africa (Cape Town)v Director General : Department of Environmental
Affairs and Tourism and Another 2005 (3) SA 156 (C) 2005 (3) SA 156 (C)

PAJA in s7(2) the rule of exhaustion of internal remedies. This means that judicial review
must be the last resort.
As ORegan ADJC said in Bato Star31, the RPA must show the court that they had a legitimate
expectation under s3 of the PAJA to receive a hearing prior to the decison being made by the
Department.

BIBLIOGRAPHY
BOOKS
Baxter L Administrative Law
Hoexter. C Administrative Law in South Africa, 2nd edition, 2012

CASES
31 Op cit note 22

Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and
Others (CCT 27/03) [2004] ZACC 15; 2004 (4) SA 490 (CC); 2004 (7) BCLR (CC)
(12 March 2004)
Earthlife Africa (Cape Town)v Director General : Department of Environmental
Affairs and Tourism and Another 2005 (3) SA 156 (C) 2005 (3) SA 156 (C)
Joseph v City of Johannesburg 2010 (4) SA 55 (CC)
Liebenburg v Brakpan Liquor Licensing Board 1944 WLD
Masetla v The President of The Republic of South Africa 2008 1 BCLR 1 (CC); 2008
1 SA 566 (CC)
Rose v Johannesburg Local Road Transportation Board 1947 4 SA 272 (W)
Walele v City of Cape Town and Others (CCT 64/07) [2008] ZACC 11; 2008 (6)
SA129 (CC) ; 2008 (11) BCLR 1067 (CC) (13 June 2008)

ARTICLES

Just Administrative Action J Klaaren, G Penfold,Woolman, s et al Constitutional

Law of South Africa. 2nd edition. Kenwyn. Juta ,2008 pg 63-98
The judicial review of administrative action in South Africa (2005) JR De Ville

LEGISLATION

The Constitution of The Republic of South Africa, 1996

Promotion of The Administration Of Justice Act 3 of 2000