25 Administrative Justice - Centre for Human Rights · on the common-law grounds of review will probably be even greater than the direct influence.1 Furthermore, the right of administrative

25 AdministrativeJusticeJonathan Klaaren

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25.1 Introduction: administrative justice and just administrative action . . . . 25--1

25.2 Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25--4

25.3 Standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25--8

25.4 Application and standing . . . . . . . . . . . . . . . . . . . . . . . . . . 25--12

25.5 Content of the right: s 33(a) . . . . . . . . . . . . . . . . . . . . . . . . 25--13

25.6 Content of the right: s 33(b) . . . . . . . . . . . . . . . . . . . . . . . . 25--14

25.7 Content of the right: s 33(c) . . . . . . . . . . . . . . . . . . . . . . . . 25--18

25.8 Content of the right: s 33(d) . . . . . . . . . . . . . . . . . . . . . . . . 25--19

25.9 Limitation clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25--22

25.10 Another right of administrative justice: s 34 . . . . . . . . . . . . . . . . 25--23

[REVISION SERVICE 5, 1999] 25--i

25.1 INTRODUCTION: ADMINISTRATIVE JUSTICE AND JUST ADMINISTRATIVE ACTION

1The administrative justice provision introduced by s 241 of the interim Constitution (IC) hashad far-reaching consequences for South African administrative law.2 It has been interpretedand applied in numerous court decisions and many governmental actions, and is continuedin s 33 of the final Constitution (FC).

REVISION SERVICE 5, 1999Nevertheless, both the structure of the interim Constitution and the decisions of theConstitutional Court have made it clear that this section is not the single fount of adminis-trative justice. The work performed in comparable constitutional instruments by a singleall-embracing due process clause has been divided and allocated to several distinct sectionsof the South African Constitution: the limitations clause, the right of access to information,and the right of access to court as well as the right to freedom and security of the person.3

Thus the right of administrative justice must be considered in relation to these otherprovisions.

Furthermore, the body of pre-constitutional South African administrative law remainsimportant in the constitutional era ---- at the very least as a point of departure. The introductionof constitutional administrative justice rights does not preclude further judicial developmentof common-law grounds of review.4 Such development of the common law is encouragedby provisions such as IC s 35(3) and FC s 39(2).5 The indirect influence of the Constitution

1 IC s 24, ‘Administrative justice’, provides: ‘Every person shall have the right to ----(a) lawful administrative action where any of his or her rights or interests is affected or threatened;(b) procedurally fair administrative action where any of his or her legitimate expectations is affected or

threatened;(c) be furnished with reasons in writing for administrative action which affects any of his or her rights or interests

unless the reasons for such action have been made public; and(d) administrative action which is justifiable in relation to the reasons given for it where any of his or her rights

is affected or threatened.’2 See E Mureinik ‘A Bridge to Where?: Introducing the Interim Bill of Rights’ (1994) 10 SAJHR 31.3 See above, Woolman ‘Limitations’ ch 12 and Klaaren ‘Access to Information’ ch 24. See below, § 25.10 (access

to courts) and Currie & Woolman ‘Freedom and Security of the Person’ ch 39.4 See, for example, Foulds v Minister of Home Affairs & others 1996 (4) SA 137 (W) at 149H--150A (natural

justice requires that an applicant be informed of adverse information and adverse policy considerations and givenan opportunity to respond thereto where there are no special circumstances justifying non-disclosure). See alsoDu Preez & another v Truth and Reconciliation Commission 1997 (3) SA 204 (A) (applying the duty to act fairlyas part of common law).

5 FC s 39(2) provides: ‘When interpreting any legislation, and when developing the common law . . ., [a court]must promote the spirit, purport, and objects of the Bill of Rights.’ IC s 35(3) provided similarly. As articulated byCameron J in Holomisa v Argus Newspapers Ltd 1996 (2) SA 588 (W), this development can be far-reaching.Furthermore, this development applies not only to the common law but also to the interpretation and exercise ofstatutory discretions. For instance, in Lappeman Diamon Cutting Works v MIB Group (No 1) 1997 (4) SA 908 (W)IC s 22 read with IC s 8 (the right to equality) rendered invalid the previous interpretation of the statutory discretion,granted the courts by s 13 of the Companies Act 61 of 1973, to grant applications for the granting of security whenit appears by credible testimony that there is reason to believe that a company as plaintiff or applicant will be unableto pay the costs of the defendant or respondent if successful in its defence. The courts had understood themselvesempowered to lean towards granting such applications absent special circumstances. Finding such an interpretationcontrary to the constitutional values of the access to courts right, Lappeman adopted a wide rather than a narrowinterpretation of the discretion, eliminating the presumption towards its exercise.

ADMINISTRATIVE JUSTICE

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on the common-law grounds of review will probably be even greater than the directinfluence.1 Furthermore, the right of administrative justice has initiated a new spirit in thecourts’ approach to statutory interpretation.2

2 Specifying the relationship between the common law and the constitutional right itselfhas been complicated by the particular jurisdictional scheme of the interim Constitution. InFedsure Life Assurance Ltd & others v Greater Johannesburg Transitional MetropolitanCouncil3 the court concluded that under the interim Constitution the Appellate Division hadno jurisdiction over matters concerning ‘administrative action’.4 Of course, under the finalConstitution the Supreme Court of Appeal does have such constitutional and common-lawjurisdiction.5

In Fedsure the Constitutional Court left open ‘[w]hether the direct application of theprovisions of section 24 of the interim Constitution means that the common law must meetthe requirements of the section, or that the section grounds a cause of action independent ofthe common law’.6 The first option might take the form of a rule of exhaustion: that a litigantcould avail herself of the constitutional right only where the common law did not afford aremedy. While there is no firm indication either way, the court might have signalled itswillingness to enforce administrative justice rights by referring to a case that took anexpansive attitude towards the protection offered by IC s 24, Van Huyssteen & others NNOv Minister of Environmental Affairs and Tourism & others.7 The resolution of the abovequestion may not matter greatly in substance in many cases since the court made it clear thatthe courts would enforce the rights of IC s 24 and FC s 33.

The Supreme Court of Appeal has taken the view that the common-law grounds forjudicial review of administrative action continue to exist in terms of IC s 24, a conclusionwhich presumably would apply to FC s 33.8 According to the court: ‘Judicial review under theConstitution and under the common law are different concepts. In the field of administrative lawconstitutional review is concerned with the constitutional legality of administrative action,

1 For instance, the information gained via s 33(c) and s 32 regarding the process of decision-making will greatlystrengthen other grounds of administrative-law review. Practitioners would be well advised to request such reasonsand such access to information as a matter of course in any case challenging administrative action.

2 See, for example, Director: Mineral Development Gauteng Region v Save the Vaal Environment 1999 (2) SA709 (SCA), 1999 (8) BCLR 845 (SCA) (reading audi into statutory provisions of the Minerals Act 50 of 1951).

3 1999 (1) SA 374 (CC), 1998 (12) BCLR 1458 (CC).4 At para 105. See also Rudolph & another v Commissioner of Inland Revenue & others 1996 (2) SA 886 (A);

Roman v Williams NO 1998 (1) SA 270 (C), 1997 (9) BCLR 1267 (C); Fedsure Life Assurance Ltd & others vGreater Johannesburg Transitional Metropolitan Council & others 1998 (2) SA 1115 (SCA) at 1123J--1124D.

5 As a matter of interpreting item 17 of Schedule 6, the Supreme Court of Appeal will also have such jurisdictioneven where it is interpreting the interim Constitution. Fedsure Life Assurance at paras 109--13. The Supreme Courtof Appeal has adopted a case-by-case approach to the question of whether it will exercise jurisdiction in such cases,but appears to hold that it will exercise jurisdiction where review proceedings were brought on constitutional aswell as common-law grounds. Commissioner of Customs and Excise v Container Logistics (Pty) Ltd 1999 (3) SA771 (SCA), 1999 (8) BCLR 833 (SCA) at para 6.

6 At para 105.7 At para 105 (citing 1996 (1) SA 283 (C)). See generally Farjas (Pty) Ltd v Regional Land Claims Commissioner,

KwaZulu-Natal 1998 (2) SA 900 (LCC), 1998 (5) BCLR 579 (LCC).8 Commissioner of Customs and Excise v Container Logistics (Pty) Ltd 1999 (3) SA 771 (SCA), 1999 (8) BCLR

833 (SCA) at para 20.

CONSTITUTIONAL LAW OF SOUTH AFRICA

25--2 [REVISION SERVICE 5, 1999]

the question in each case being whether it is or is not consistent with the Constitution, andthe only criterion being the Constitution itself. Judicial review under the common law isessentially also concerned with the legality of administrative action but the question in eachcase is whether the action under consideration is in accordance with the behests of theempowering statute and the requirements of natural justice. The enquiry in this regard is notgoverned by a single criterion.’3 Replacing IC s 24, s 33 of the final Constitution (FC) is entitled ‘Just administrativeaction’.1 Section 33(1) essentially maintains the provisions of the interim Constitution whilesimplifying the language of the clause. In particular, the troublesome ‘where’ clauses of theinterim Constitution are eliminated. In s 33(2) the parallel development represents a retreatfrom the provisions of the interim Constitution: written reasons for decisions are stillguaranteed, but are no longer extended to the broadest class of administrative action. Insteadthey are available only where a person is ‘adversely affected’ by that action. The result is thatcourts faced with standing and application questions in relation to administrative justice areeven more likely under the final Constitution to draw on prior common-law concepts. Thisis perhaps a welcome development since a coherent and consistent interpretation of the‘where’ clauses was not readily apparent.

However, s 33 does not take immediate effect. The operation of s 33 is suspended for aperiod perhaps as long as three years. In terms of clause 23(2)(b) of FC Schedule 6, s 33(1)and (2) are to be regarded to read essentially as IC s 24, while Parliament is given time, byitem 23(1), to draft legislation giving effect to the right to just administrative action.2 There

1 Section 33 provides: ‘(1) Everyone has the right to administrative action that is lawful, reasonable and procedurally fair. (2) Everyone whose rights have been adversely affected by administrative action has the right to be givenwritten reasons. (3) National legislation must be enacted to give effect to these rights, and must ----(a) provide for the review of administrative action by a court or, where appropriate, an independent and impartial

tribunal;(b) impose a duty on the state to give effect to the rights in subsections (1) and (2); and(c) promote an efficient administration.’2 A committee of the South African Law Commission has drafted an ‘Administrative Justice Bill’ which is

intended to be submitted to the Minister of Justice in August 1999 for tabling in Parliament. If such legislation isnot enacted before 4 February 2000, the s 33(1) and (2) rights will automatically come into operation of their ownforce, with s 33(3) lapsing. The argument for this is by analogy with the consideration of the parallel clauses of theaccess to information right. See Ex parte Chairperson of the Constitutional Assembly: In re Certification of theConstitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC), 1996 (10) BCLR 1253 (CC) at para 83.

The question of whether such legislation will need to be tested against s 33(1) and (2) or whether it is co-extensivewith the constitutional right of just administrative action is an open one. Certification of the Constitution, 1996(supra) at para 86 seems to indicate that such a statute ---- at least in the access to information context ---- will enjoya measure of deference. See also Vermont Yankee Nuclear Power Corp v NRDC 435 US 519 (1977), particularly at548 and 558. See generally J Klaaren ‘Constitutional Authority to Enforce the Rights of Administrative Justice andAccess to Information’ (1997) 13 SAJHR 549.

For an examination of the shape of the legislation to be passed, see M Asimow ‘Administrative Law under SouthAfrica’s Final Constitution: The Need for an Administrative Justice Act’ (1996) 113 SALJ 613 and H Corder‘Administrative Justice in the Final Constitution’ (1997) 13 SAJHR 28.



are only three linguistic differences between s 24 and the transitional s 33.1 All of these appearto be minor and intended solely to be in keeping with the use of ‘plain language’.2 Since thetransitional s 33 presently applies, the remainder of this chapter will discuss its provisions.

25.2 APPLICATION

4In general the reach of the administrative justice clause will, of course, conform to theconstitutional limits of application required by the Bill of Rights.3 However, those limits arecertainly open to interpretation. Application may even vary depending upon the specific rightat issue.4 The reach of s 33 will therefore have to be determined by a process of purposiveinterpretation.5 This section will treat matters of application, the following section those ofstanding, and the subsequent section will discuss the relationship between the two in thecontext of s 33.

To find the limits of application of s 33 the boundaries of ‘administrative action’ willneed to be defined. This is the term used in each of the four subsections of s 33 and istherefore the key term to define. It is submitted that, subject to the three broad exceptionsdiscussed below, ‘administrative action’ extends to all action taken by bodies exercisingpublic power.6 The exercise of a discretion is administrative action.7 The process of agovernment tender is administrative action.8 Administrative action has been interpreted to

1 References to s 33 in this chapter, unless otherwise qualified, will be references to the transitional s 33, whichis contained in item 23 ‘Bill of Rights’ of FC Schedule 6, and reads as follows:

‘(2) Until the legislation envisaged in sections 32(2) and 33(3) of the new Constitution is enacted ----(a) . . .(b) section 33(1) and (2) must be regarded to read as follows:

‘‘Every person has the right to ----(a) lawful administrative action where any of their rights or interests is affected or threatened;(b) procedurally fair administrative action where any of their rights or legitimate expectations is affected or

threatened;(c) be furnished with reasons in writing for administrative action which affects any of their rights or interests

unless the reasons for that action have been made public; and(d) administrative action which is justifiable in relation to the reasons given for it where any of their rights

is affected or threatened.’’.’2 The verb tense shifts from ‘shall have’ to ‘has’. The term ‘such action’ changes to ‘that action’. And the

possessive pronouns ‘his or her’ shift to ‘their’.3 Note that the application provisions of the final Constitution are significantly broader than those of the interim

Constitution. See above, Woolman ‘Application’ ch 10.4 See above, Woolman ‘Application’ §§ 10.2--10.3.5 See above, Kentridge & Spitz ‘Interpretation’ ch 11.6 See e g Jeeva v Receiver of Revenue, Port Elizabeth 1995 (2) SA 433 (SE) at 443I: ‘A commission of inquiry

authorized by the Master of the Supreme Court and held under the machinery of the Companies Act is administrativeaction.’ See also Gardener v East London Transitional Local Council & others 1996 (3) SA 99 (E) at 113F--117A,where the court broadly supports the view that the enactment of delegated legislation is administrative action. Butcf Directory Advertising Cost Cutters v Minister of Posts, Telecommunications and Broadcasting & others 1996 (3)SA 800 (T) at 811G--H.

7 Deacon v Controller of Customs and Excise 1999 (2) SA 905 (SE).8 Umfolozi Transport (Edms) Bpk v Minister van Vervoer en andere [1997] 2 All SA 546 (SCA); Aquafund (Pty)

Ltd v Premier of the Western Cape 1997 (7) BCLR 907 (C); ABBM Printing and Publishing (Pty) Ltd v TransnetLtd 1997 (10) BCLR 1429 (W). For a discussion of a case holding to the contrary, see Goodman Bros (Pty) Ltd vTransnet Ltd 1998 (8) BCLR 1024 (W) (discussing SA Metal Machinery Co Ltd v Transnet Ltd (WitwatersrandLocal Division, unreported, 22 March 1998)).



include the arbitration proceedings conducted under the auspices of the labour tribunal, theCommission for Conciliation, Mediation, and Arbitration.1 Action taken by bodies such asparastatal corporations with the status of organs of state will be administrative action.2

5 ‘Administrative action’ should be interpreted to cover not only adjudicative administrativedecisions but also delegated and subordinate legislation. To restrict the clause to adjudicationsonly would be unthinkable, given the vast bulk of governmental administration undertakenby regulation.

In Fedsure Life Assurance Ltd & others v Greater Johannesburg Transitional MetropolitanCouncil & others3 the Constitutional Court clearly supported coverage by the administrativejustice clause beyond administrative adjudications. The court was thus willing to go beyondthe bounds of South African Roads Board v Johannesburg City Council,4 where Milne JAelaborated upon a distinction between those government decisions applying generally(termed ‘legislative’) and those applying in a particular situation.5 According to the court,cases referred to by Milne JA in exempting the impact of natural justice upon legislativedecisions were of ‘little assistance’ in determining the content of administrative action interms of the Constitution.6 The court noted:7

‘Laws are frequently made by functionaries in whom the power to do so has been vested by acompetent legislature. Although the result of the action taken in such circumstances may be‘‘legislation’’, the process by which the legislation is made is in substance ‘‘administrative’’.’

The action of making delegated and subordinate legislation is thus administrative action.Further, not only the decisions taken or rules promulgated under a statute but also the

statutory regulatory framework itself falls within the substantive reach of s 33.8 One doesnot only have a right to the procedures laid down in legislation. Such procedures themselveswill be scrutinized under s 33 (and s 34).9

Obviously, most action taken by private persons and bodies may fall outside s 33. Adecision by a private individual to let out a room obviously does not constitute administrativeaction. However, a number of private bodies have previously had the principles of adminis-trative justice applied to regulate their functioning. For instance, universities have beenrequired to observe natural justice and will presumably be covered by s 33.10 The categoryof those bodies traditionally covered by administrative justice may include some bodieswhich are organs of state. Whether or not they qualify as organs of state, those private bodiesexercising public power should be regulated by s 33.11 Of course, there will be some changes

1 Kynoch Feeds (Pty) Ltd v CCMA & others [1998] 4 BLLR 384 (LC) at para 46. 2 For a discussion of the organ of state doctrine, see above, Woolman ‘Application’ §§ 10.3(a)(iv)(cc) and

10.8(a)(v). 3 1999 (2) SA 374 (CC), 1998 (12) BCLR 1458 (CC). 4 1991 (4) SA 1 (A). 5 In this decision Milne JA refined the pre-existing distinction considerably. See Mureinik ‘Administrative Law’

in 1991 Annual Survey of South African Law 625--7. 6 At paras 25--6. 7 At para 27. 8 See below, §§ 25.5--25.8. 9 Cleveland Board of Education v Loudermill 470 US 532, 105 SCt 1487 (1985).10 Lunt v University of Cape Town 1989 (2) SA 438 (C).11 See the Breakwater Declaration reprinted in Administrative Law Reform (1993). The Declaration was adopted

in 1993 by a representative conference of administrative lawyers. For a case often cited as representative of thistrend, see Dawnlaan Beleggings Bpk v Johannesburg Stock Exchange & others 1983 (3) SA 344 (W).



from prior administrative-law practice. A few bodies previously covered may no longer be.For instance, religious bodies were covered by the rules of administrative justice but mayescape coverage as a result of the entrenchment of religious freedom in the Bill of Rights.1

In addition, the contractual source of the application of administrative law to some bodies inthe pre-constitutional era may provide space to argue that such bodies remain governed onlyby the common-law administrative principles. One court has decided that political partiesare not subject to the rules of administrative justice.2

6 Several categories of governmental action may not fall into the definition of administrativeaction: legislative action, judicial action, and constitutional organ action. First, there may besome governmental action which is legislative in character which will not by definitionqualify as ‘administrative’.3 For instance, if Parliament passed an Act to expropriate a pieceof property, such legislation would not need to satisfy the strictures of s 33. The definingcharacter of such legislative action is not, however, its general application but rather its sourcein the parliamentary process. Delegated legislation thus remains contained within the term‘administrative action’.4 The Constitutional Court confirmed this legislative exception to thereach of administrative action in Fedsure Life Assurance Ltd and others v Greater Johannes-burg Transitional Metropolitan Council.5 IC s 24 did not apply to the by-laws made by amunicipal council. The council was ‘a deliberative legislative body whose members areelected’ and its enactment of legislation was thus not covered by s 24.6 According to the court,the proper form of accountability over this form of governmental action was a political oneto the electorate rather than a judicial one through the right of administrative justice to thecourts.7

1 For example, see Theron en andere v Ring van Wellington van die NG Sendingkerk in Suid-Afrika en andere1976 (2) SA 1 (A). Religious bodies have been susceptible to review as other associations by reason of contract.The value of religious freedom introduced by IC s 14 and FC s 15 may lead to a change in this common-law doctrine.See above, Smith ‘Religion’ ch 19.

2 Bushbuck Ridge Border Committee & another v Government of the Northern Province & others 1999 (2) BCLR193 (T) at 200B.

3 In any case, it should be clear that the term ‘administrative’ does not import the doctrine of classification offunctions, discredited by Corbett CJ in Administrator, Transvaal v Traub 1989 (4) SA 731 (A) at 763. In addition,it should be clear that s 33 cannot be used to override specific procedures for legislative action laid down in theConstitution. For example, the passage of legislation does not need to satisfy a fairness standard of s 33, but merelythe specific procedural requirements laid down in Chapter 4.

4 Administrative action that is legislative in the sense of applying generally is, it is submitted, subject to proceduralfairness, although, for instance, a pre-promulgation hearing would not be a required element. See discussion of SARoads Board and s 33(b) and below, § 25.6.

5 1999 (2) SA 374 (CC), 1998 (12) BCLR 1458 (CC).6 At paras 41--2.7 The issue of the extent of the legislative exception to the definition of administrative action arose in Cekeshe

& others v Premier of the Eastern Cape & others 1999 (3) SA 56 (Tk), 1997 (12) BCLR 1746 (Tk) at 1765G. Thecourt accepted as a general proposition that ‘legislative action which has its source in the parliamentary process, inthe sense that there is a special opportunity for a motion and debate by a body with legislative powers, will bydefinition not qualify as ‘‘administrative action’’ ’. The court at 1766E apparently confused the question of whatconstitutes constitutional administrative action throughout s 33 with the question of what kind of such constitutionaladministrative action attracts a hearing in terms of s 33(b), but correctly characterized the dissolution of a companyby the Premier in terms of s 13 of the Corporations Act 10 of 1985 (Transkei) as administrative action for thepurposes of both questions.



6ASecondly, there may also be governmental action which is judicial in character andtherefore not administrative action and not subject to s 33. In Nel v Le Roux NO & others 1

Ackermann J stated obiter that the summary sentencing procedure of s 205 of the CriminalProcedure Act2 was ‘judicial and not administrative action’. This category of action ---- aswith the category of legislative action ---- should also be characterized by its source in the judicialprocess (e g the act of sentencing) rather than by its adjudicative nature (e g the applicationof law to facts).3 Such judicial action would be taken in terms of original constitutionaljudicial authority. On this argument, for instance, a court’s exercise of a summary sentencingprocedure might be insulated from the administrative justice right not by the provisions ofparliamentary legislation but rather by virtue of the judicial authority vested in the courts byFC s 165(1). For instance, in Carephone (Pty) Ltd v Marcus NO & others the submissionthat compulsory arbitration in terms of the Labour Relations Act4 was a kind of judicial, andthus not administrative, action was rejected on the notion that judicial action was action bycourts of law, action which is already subject to the values of accountability, responsiveness,and openness.5 Using this exception, one case has held that decisions of arbitrators in termsof the Arbitration Act6 are judicial rather than administrative in nature.7

Thirdly, there may be governmental action which is taken by organs and officersspecifically mentioned in the Constitution which is not administrative action.8 As with thelegislative and judicial exceptions, the original constitutional source of the authority behindthe action distinguishes this action from administrative action. For instance, action taken byan ad hoc committee of the National Assembly should not be considered administrative

1 1996 (3) SA 562 (CC), 1996 (4) BCLR 592 (CC) at para 24.2 Act 51 of 1977.3 To date the court has not expressed a firm opinion on the definition of administrative action. While Ackermann J

expressed ‘grave doubts’ on the applicability of IC s 24 beyond sentencing to the information-gathering proceduresof s 205, he also stated that, if IC s 24 did apply, there was no infringement of the right because ‘the examinee’srights are adequately protected’. See Nel (supra) at para 24. Thus his statement is obiter. Moreover, elsewherein his judgment Ackermann J seemed to treat those procedures as administrative rather than judicial, noting theapplication and importance of procedural fairness, due process, and natural justice in the administration of the s 205proceeding. See Nel (supra) at paras 11, 17 and 21. Likewise in Bernstein & others v Bester & others NNO 1996(2) SA 751 (CC), 1996 (4) BCLR 449 (CC) at paras 93--101 Ackermann J expressed doubts about whether theinquiry conducted under ss 417 and 418 of the Companies Act 61 of 1973 was administrative action in terms ofIC s 24, but assumed that it was and found its procedures to be facially consistent with IC s 24(b) and (c). Perhapsmost significantly, Kriegler J (Didcott J concurring) and O’Regan J specifically declined to endorse Ackermann J’sdoubts on the scope of administrative action. See Bernstein (supra) at paras 131 and 155.

4 Act 66 of 1995.5 1999 (3) SA 304 (LAC), 1998 (10) BCLR 1326 (LAC) at paras 15--19.6 Act 42 of 1965.7 Patcor Quarries CC v Issroff & others 1998 (4) SA 1069 (SE). This decision may be best supported by the

voluntary nature of such arbitration.8 The Constitutional Court seemed to confirm the existence of a category of executive action excepted from the

reach of administrative justice in Fedsure Life Assurance Ltd & others v Greater Johannesburg TransitionalMetropolitan Council & others 1999 (2) SA 374 (CC), 1998 (12) BCLR 1458 (CC). According to the court, ‘[i]nrelation to legislation and executive acts that do not constitute ‘‘administrative action’’, the principle of legality isnecessarily implicit in the Constitution’ (at para 59 ---- emphasis added).


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action, although the Constitution may be interpreted to require a committee’s compliancewith fairness and natural justice.1 Likewise, the exercise of the President’s powers as headof state in terms of IC s 82(2)(e) and FC s 84(2)(f) is not one where the strictures ofadministrative justice ought to apply. A recent case of note is, however, to the contrary.2 Nonethe less, since the rationale for excluding this category of governmental action from the ambitof the right to administrative justice is the explicit and textual sources for such power, abroad-based executive exception should not be constructed.3 Other action which is taken byorgans and officers specifically mentioned in the Constitution will be administrative action.For instance, the decision by the Judicial Service Commission to adopt a closed or an openprocedure in conducting interviews should be characterized as administrative action. Analternative argument to the argument that the above governmental action is not administrativeaction is the argument that the administrative justice right does apply but that the organ orofficer has the discretion to determine its content.6B

1 De Lille & another v Speaker of the National Assembly 1998 (3) SA 430 (C), 1998 (7) BCLR 929 (C) (applyingcommon-law rules of natural justice to an ad hoc committee of Parliament without terming the action of suchcommittee administrative action).

2 South African Rugby Football Union & others v President of the Republic of South Africa & others 1998 (10)BCLR 1256 (T) at 1267D.

3 Cf Bushbuck Ridge Border Committee & another v Government of the Northern Province & others 1999 (2)BCLR 193 (T) (terming action by provincial and national governments executive and not administrative in nature).


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7 Beyond the definition of ‘administrative action’ the two fundamental interpretiveproblems in s 33 relate to the meaning of the term ‘affect’ and the use of the term ‘threaten’.First, it is necessary to give meaning to the word ‘affect’ in order to determine the scope ofs 33. One approach, that of Etienne Mureinik, points out an ambiguity in the term ‘affect’.1

The term may mean either affect in the sense of ‘deprive’ or affect in the sense of ‘determine’.Under the deprivation meaning a narrow class of administrative action is covered. Under thedetermination theory a much broader (nearly universal) class of administrative action iscovered.2 Which of these meanings should we ascribe to the use of the term in s 33? Thisapproach argues that the meaning varies subsection by subsection. The wide sense isused in s 33(a) and (c), as the use of the term ‘interests’ shows, while the narrow senseis used in s 33(b).3 This leaves s 33(d), where, on policy grounds, Mureinik argues for thedetermination theory. While Mureinik’s argument has force, the simpler solution of reading‘affect’ in an ordinary sense to mean ‘touch upon’ or ‘have an effect on’ would be a consistentmethod of interpreting these clauses.4 This interpretation (which is broader even than thedetermination theory) may also be preferred especially when one takes into account theargument presented below, which sees these ‘where’ clauses as matters of standing ratherthan application. On this reading the administrative justice clause would apply to alladministrative action, although the class of decisions that one could challenge in court wouldbe limited.

Secondly, as a further interpretive problem s 33 uses two verbs: ‘affect’ and ‘threaten’.The linguistic choice of both verbs gives rise to at least two interpretive possibilitiesregarding the term ‘threatened’. First, the section’s reference to ‘threatened’ as well as‘affected’ may bring advisory decisions within the ambit of the administrative justice clause.5

This language would therefore overrule cases such as Cassem v Oos-Kaapse Komitee vandie Groepsgebiederaad,6 at least in so far as s 33(a) and (b) are concerned. There is, however,a second interpretive possibility. The inclusion of ‘threaten’ in s 33 as well as ‘affect’ couldfunction to add the notion of affecting in the future to the basic notion of affecting in thepresent or past. This interpretation would be consistent with the expansion of the range of

1 Mureinik ‘A Bridge to Where: Introducing the Interim Bill of Rights’ (1994) 10 SAJHR 31. See also Mureinik,unpublished memorandum on ‘Admin Justice in the BoR’ (6 July 1994).

2 This ambiguity is argued to have run through South African administrative law. Cf Laubscher v NativeCommissioner, Piet Retief 1958 (1) SA 546 (A) at 549, indicating that natural justice attaches to deprivation ofrights, with Hack v Venterpost Municipality 1950 (1) SA 172 (W) at 189--90, indicating that natural justice attachesto determination of rights.

3 This is so since, if the determination theory is meant in s 33(b), there would be no point to the inclusion oflegitimate expectations. Further, while one can meaningfully deprive someone of rights, it is unclear how one canbe deprived of an interest since one cannot take away a potential that is not yet enjoyed.

4 But see Mureinik ‘Administrative Justice Clause in BoR’ at 14: ‘Clearly ‘‘affects interests’’ can’t be construedliterally, to mean ‘‘touches interests’’. If it did it would make the class of administrative action unmanageably wide:in a polycentric society thousands of decisions very remote from me affect my interests ---- e g the resignation ofKeys as Minister of Finance touches my interests, but no-one would suggest it falls within the meaning of s 24(c).’

5 See Mureinik ‘Administrative Justice Clause in BoR’. By contrast, s 33(c), with its omission of ‘threaten’,would not subject advisory decisions to the requirement to give reasons in writing.

6 1959 (3) SA 651 (A). Cassem held that advisory or recommendatory decisions were not within the ambit ofnatural justice. See 1990 Annual Survey 590--3.



constitutionally remediable harms which s 38 provides.1 It would also explain why ‘threaten’is included in s 33(a) and (b), but is omitted from s 33(c).2 It is submitted that the secondinterpretation set out above should be preferred. On the reading of ‘affect’ suggested above,advisory decisions would already be covered. Thus the term ‘threaten’ must expand the reachof both s 38 and s 33 in another direction. The most likely expansion is into the realm offuture effects.3

25.3 STANDING

8In practice, most administrative justice issues begin with a consideration of the question ofstanding. While the application of the Constitution refers to the institutions, bodies andpersons who are bound by the Constitution and the scope of the obligations owed by them,the question of standing concerns the class of institutions, bodies, and persons entitled toapproach the courts for relief against breaches of their constitutional rights.4

The express standing requirement is contained in the ‘where’ clauses of s 33.5 A first issueto consider is the relation between standing under s 38 and standing under the administrativejustice clause. It is submitted that s 38 merely sets out minimum constitutional requirements.The more specific textual provisions relating to standing in s 33 therefore create standingrequirements which are, at least in part, more restrictive.6 Consequently, an applicant who

1 Section 38 entitles a person to apply for relief if he or she alleges that a fundamental right ‘has been infringedor threatened’. This language should make it clear that a constitutional inquiry may be triggered by conduct whichfalls short of constituting an actual infringement. Persons are protected against threats to their fundamental rightsand need not wait for an actual infringement before seeking relief. Section 38 therefore has a bearing on the typesof harm against which Chapter 2 aims to protect. Were the term ‘threaten’ not included in s 33, under the rule ofinterpretation that more specific language controls, the reach of s 33 might not have been as wide as the reach of s 38.

2 Section 33(c) is the only subclause to deal with administrative action that has exclusively taken place in thepast. One cannot ask for written reasons for a decision that has not yet been taken. Under the other subsections,however, there can be a right requiring prospective action to be lawful, procedurally fair, and justifiable.

The counter-argument that s 33(d), like s 33(c), covers only past conduct should be rejected. The term ‘given’ ins 33(d) does seem to suggest that the section relates to past action by an administrative body which must be justified.However, this right can also operate prospectively. The right to justifiable decisions must be respected while theadministrative decision (which may itself be a multi-staged and multi-institutional process, such as many modernenvironmental decisions) is being made.

3 This interpretation is further supported by Canadian case law, which holds that the fundamental rights remedyclause, s 24(1), will be satisfied by the allegation of an imminent threat (although not a mere apprehension) of afuture Charter violation. See Quebec Association of Protestant School Boards v Attorney General, Quebec (1982) 140DLR (3d) 33 (Que SC) (standing granted to challenge school admission policy even before school year has begunand thus before the applicant’s child actually denied admission). See generally Hogg Constitutional Law of Canada3 ed (1992) sec 37.2(e). Section 38 makes explicit what has been established by judicial interpretation in Canada.

4 In other words, as a matter of application the Constitution may create rights, but there may be no entitlementto seek judicial review of administrative action as a matter of standing. The appropriate remedy to vindicateconstitutional rights is then recourse to the legislature or to the administrative body directly or to a body such as thePublic Protector or the Human Rights Commission.

This section interprets the ‘where’ clauses in s 33 as signals to the court to apply the doctrine of standing ratherthan as provisions relating to application. A full defence of this proposition is made in the following section.

5 Three of the subsections contain ‘where’ clauses. Section 33(c) does not, and uses the term ‘which affects . . .’.The switch from the term ‘where’ to that of ‘which’ may be grammatical, given the existence of the publicity provisoin s 33(c). Or it may reflect the different position of s 33(c) in relation to the timing of judicial review.

6 It may be that standing should be narrowed from the s 38 parameters only where there is an express textualindication to do so. However, s 33 is the sole section in the Chapter on Fundamental Rights to speak of ‘rights’ and‘interests’. It therefore clearly contains the requisite textual indications.



would have standing under s 38 to challenge other threatened infringements of Chapter 2rights would not automatically have standing to trigger s 33 inquiries.9 While some courts have denied relief on the grounds that the action affects no legal right,1

the Constitutional Court has indicated that its understanding of the concept of a right maybe broader than the common-law notion.2

What is the interest referred to in s 33? Our pre-Constitutional common law requires thatan applicant demonstrate an interest which is direct, real or present and not common to allmembers of the community before locus standi will be granted.3 In Jacobs v Waks Botha JAdefined locus standi thus:4

‘In general the requirement of locus standi means that someone who seeks relief must have asufficient interest in the subject-matter of the litigation to persuade the court that his claim shouldbe adjudicated.’

In the administrative justice context, interest should thus be defined to include an economicinterest implicated by the administrative action.5 While one early case, Xu v Minister vanBinnelandse Sake,6 dismissed an application requesting reasons under IC s 24(c) for a refusalto grant a temporary residence permit on the grounds that no constitutional right or interestexisted, the decision was clearly incorrect as the interest of remaining in the country should

1 In Podlas v Cohen and Bryden NNO & others 1994 (4) SA 662 (T) the issuing of a notice to attend what thecourt termed an investigative inquiry in terms of s 152 of the Insolvency Act 24 of 1936 was apparently held not toaffect the witnesses’ liberty or property or any other existing right prejudicially with respect to s 24(b). Proceduralfairness was thus not applied. The question of legitimate expectation was not considered. As an alternative argument,the court also invoked the limitation clause.

In a more careful examination a similar route was taken in Park-Ross v Director: Office for Serious EconomicOffences 1998 (1) SA 108 (C), 1997 (2) SACR 401 (C). Here, no right to a hearing before the Director was foundwhere the Director was investigating possible crimes and preparing a report in terms of s 5(11) and (12) of the Actfor submission to the Attorney-General. Thus, no rights would be infringed under s 24(a) and (b) (at 124E--F). Thecourt then considered whether a legitimate expectation existed and, assuming so, found such expectation satisfied.The court thus applied the constitutional protection of procedural fairness.

For a development of the common law in a similar context, see Van der Merwe & others v Slabbert NO & another1998 (3) SA 613 (N), 1998 (6) BCLR 697 (N) (duty to act fairly applies to the workings of a purely preliminaryand investigative commission of inquiry, requiring timely notice and sufficient information to prepare to be givento persons affected).

Although this court termed the issue as one of the definition of administrative action, failure to show a legal rightand thus to trigger procedural fairness protection is the better explanation for the decision in Frans v GrootBrakrivierse Munisipaliteit en andere 1998 (2) SA 770 (C), 1997 (3) BCLR 346 (C).

2 See Premier, Province of Mpumalanga v Executive Committee of the Association of Governing Bodies ofState-Aided Schools: Eastern Transvaal 1999 (2) SA 91 (CC), 1999 (2) BCLR 151 (CC) at para 31 n 9 (citingDilokong Chrome Mines (Edms) Bpk v Direkteur-Generaal Deparment van Handel en Nywerheid 1992 (4) SA 1(A) at 18).

3 See above, Loots ‘Access to Courts and Justiciability’ § 8.2. . See also Erasmus Superior Court PracticeA2-13--21.

4 1992 (1) SA 521 (A) at 533J--534B, in translation, as done in the 1992 Annual Survey 565.5 See Association of Data Processing Service Organizations v Camp 397 US 150, 90 SCt 827 (1970) (prospect

of increased competition sufficient personal economic interest for standing). In terms of the Canadian law the interestreferred to in s 24 must be the broader interest of the Canadian Bill of Rights s 2(e) rather than omission of economicinterest in s 7 of the Charter. See Hogg Constitutional Law of Canada sec 44.9.

6 1995 (1) SA 185 (T).



easily have qualified as a sufficient interest for purposes of IC s 24(c) and s 33(c).1 Xu hasbeen expressly criticized on this point by a later case.2

While the definition of the term ‘interest’ in s 33 should probably be the same as in s 38(a),it is employed in s 33(a) and (c) only. To satisfy standing requirements for the othersubsections of s 33 one must demonstrate more than merely an interest: at least a legitimateexpectation (for s 33(b)) or a right (for s 33(d)). To be consistent (although consistency isnot necessarily a constitutional value) heightened standing requirements for thesesubsections may also apply to the other forms of standing in s 38, such as associationalstanding.3

10 Beyond these textual provisions, courts may also read further standing limitations intos 33. In particular, courts may develop implicit standing along three lines. A first implicitstanding limitation is the stakeholder requirement. There may be a realistic differencebetween those persons initiating contact with the government (for instance, when applyingfor a benefit) and those persons already in contact with the government (for instance, whenalready holding a benefit). Indeed, Administrator, Transvaal v Traub can be read to questionwhether the legitimate expectation doctrine applies to a person’s first relationship to thegovernment.4 Although the holder of a benefit would certainly have standing as a stakeholderfor s 33 purposes, an applicant for a governmental benefit may not have such standing, atleast not in all circumstances. This distinction between stakeholder and applicant couldclearly limit the scope of s 33(b), the right to procedural fairness. It is less clear whether thedistinction could also be used to limit the right to justifiable decisions in s 33(d). In any case,the focus would be on the strength of the person’s interest and not the character of thegovernment action.

A second implicit standing limitation is that of finality.5 How final does administrativeaction need to be under s 33 before it attracts administrative justice rights?6 There would bevery good reasons for only allowing final administrative action to be reviewable in court. Asin civil actions, one would want to avoid interlocutory appeals and instead to consolidate allissues into one proceeding. To do so is to conserve judicial resources and to foster adminis-trative efficiency. It also seems possible to understand the rule against reviewing advisory

1 The Xu decision has been followed in Naidenhov v Minister of Home Affairs & others 1995 (7) BCLR 891 (T)and Parekh v Minister of Home Affairs & another 1996 (2) SA 710 (D), but criticized in Foulds v Minister of HomeAffairs & others 1996 (4) SA 137 (W) at 144D--F and 145A--E and by Klaaren ‘So Far Not So Good: An Analysisof Immigration Decisions Under the Interim Constitution’ 12 SAJHR 605 at 608--14.

2 Tettey & another v Minister of Home Affairs & another 1999 (3) SA 715 (D), 1999 (1) BCLR 68 (D).3 Thus pre-Constitutional case authority granting associations standing in relation to a legitimate expectation

would remain valid. Union of Teachers’ Associations of South Africa v Minister of Education and Culture 1993 (2)SA 828 (C) at 844I--J. However, it is not nearly as clear that procedural fairness on the basis of legitimate expectationswould be extended to, for instance, a person acting in the public interest and seeking standing under IC s 7(4)(b)(v).Such a person might well be found to lack standing. This would not mean that there was no constitutional remedyfor the protection of the right: the remedy might be to pursue the matter through legislative or human rightscommission channels rather than by application to the court.

4 1989 (4) SA 731 (A) at 761 and 757F--758C.5 See Baxter Administrative Law (1984) at 719--20 (ripeness).6 The discussion here draws upon Peter Strauss An Introduction to Administrative Justice in the United States

(1989).



decisions in this way. Furthermore, if all decisions ---- even the decision to write a letteradvising the public of a likely interpretation by the administrative body ---- were reviewableas final, the administrative body concerned may hesitate before offering advisory opinions.

If our courts develop doctrines of finality, promulgated delegated legislation1 or a decisionto reject an application communicated to the applicant would clearly be final. But what abouta decision to initiate proceedings?2 What of a failure to act in response to a complaint?3 Whatof an advisory decision that may have a nearly determinative effect, but is not legallybinding?4

11 A final set of standing limitations can be implied from the law which grants the person’sright, legitimate expectation, or interest in the first place. For instance, as a matter ofapplication procedural fairness arguably applies to all respondents to a government tenderoffer.5 Does this mean that each respondent needs a hearing before their tenders are rejected?While the principle of procedural fairness can be held to be generally applicable, standingrules can narrow the class of persons who may actually come to court for a judicial remedy.As a matter of standing, US cases require that legislation must exist which creates a right inthe lowest bidder who complies with the specifications to be awarded the contract. Only ifsuch legislation exists, will low tenderers have standing to apply for judicial review of adversedecisions for lack of due process. A ‘property’ right or interest, derived from the statutoryprovisions, will then form the basis for any due process challenge which will require theagency awarding the contract to demonstrate that its exercise of discretion was not arbitrary.In other words: if there is law requiring that only the lowest tender be accepted, then only alow tenderer may sue, alleging the proper procedures were not followed.6

1 This particular example was not necessarily an easy one in the US. Until 1967 there was no clear presumptionthat final administrative action was reviewable. The position changed with Abbott Laboratories v Gardner 387 US136, 87 SCt 1507 (1967) (a rule once adopted constitutes final agency action and is reviewable even withoutenforcement proceedings).

2 Here the balance might be struck in favour of the efficient administration of the executive body and against theability of the target of the action to impose significant delay costs upon the body; the issuance of a complaint lettershould not be seen as final action since it only imposed costs of litigation. Federal Trade Commission v StandardOil Company of California 449 US 232 (1980).

3 The US position in this regard is that agency inaction can be considered final where a fairly derived statutoryduty to act can be established. See Strauss Administrative Justice 231--2.

4 In one American case the position was taken that letters of advice signed by the head of the body concernedare ‘final’ and reviewable unless explicitly labelled as tentative or subject to reconsideration. See National AutomaticLaundry and Cleaning Council v Shultz 443 F2d 689 (1971).

5 For this particular example, note the provisions of IC s 187(2) and FC s 217(1). See GNH Office AutomationCC & another v Provincial Tender Board & others 1996 (9) BCLR 1144 (Tk) at 1165G (procedures followed inthe course of the tendering process were neither right nor just nor fair, these being the correct criteria to apply inthe context of IC s 24(b)).

6 Scanwell Laboratories Inc v Schaffer 424 F2d 859 (DC Cir 1970). For a South African argument to this effect,see SA Metal Machinery Company Ltd v Transnet Ltd 1999 (1) BCLR 58 (W) at 65h--66D (arguing that the interestof a tenderer is only a claim of an individual to lawful treatment and is entirely at the tenderer’s own risk).



In practice, our courts have generally granted wide standing in the tender context.1 InABBM Printing and Publishing (Pty) Ltd v Transnet Ltd 2 the court accepted that a tenderapplicant who had won and performed the previous tender had an obvious interest inobtaining written reasons for an adverse decision.3 Adopting an even broader approach,in Aquafund (Pty) Ltd v Premier of the Province of the Western Cape4 the court appliedthe doctrine of legitimate expectation to hold that a failed tenderer could expect that thetender board would act fairly and thus could have access to documentation relating tothe consideration of the tenders submitted.

25.4 APPLICATION AND STANDING

12It is possible to characterize each of the standing limitations identified in the previous sectionas issues of application rather than of standing. In other words, one could claim that theConstitution creates no constitutional obligations at all between a particular applicant and agovernment body rather than say that the Constitution does create such obligations, but thatthere is no judicial remedy for that particular applicant.5 Likewise, one could claim that noconstitutional obligation attaches to non-final decisions rather than claiming that suchdecisions will merely be excluded from judicial consideration for lack of standing. And onecould claim, where a statute grants a right or legitimate expectation or interest withoutproviding for procedural protection, that the Constitution does not apply in such cases.6

From the applicant’s point of view presenting a case to court, there is little if any differencebetween having his or her application denied as a matter of application or as a matterof standing. And courts may well choose to decide the above issues by reference to rules ofapplication rather than standing. Indeed, this is the simpler position conceptually andtextually: the interim Constitution simply does not bind administrative officials or bodiesunless the ‘where’ clauses are satisfied.7

1 The issue of notification of tender was considered in Claude Neon Ltd v City Council of Germiston & another1995 (3) SA 710 (W) (per Zulman J). Here the court found that the applicant had a legitimate expectation ofindividual notification of tender, on the basis of an express undertaking by the respondent, which was protected byIC s 24(b). The court also decided that the administrative action violating this legitimate expectation was remediableby an order setting aside the award of the tender to a rival competitor. Given the legitimate expectation created, therequirements of standing on behalf of the applicant were clearly met. Gencor SA Ltd v Transitional Council forRustenburg 1998 (2) SA 1052 (T) follows and affirms Claude Neon, also setting aside a contract based on the breachof a legitimate expectation created in a tendering process.

2 1997 (10) BCLR 1429 (W) at 1436H; see also 1438, where the court rejected the notion that the applicantneeded to ‘establish a jurisdictional basis’ for its claim to the tender documents ‘in the sense of a known or identifiedirregularity in the tender process’.

3 National and Overseas Modular Construction v Tender Board FS 1999 (1) SA 701 (O) is to the same effect,stating at 704D that the failed tenderer had either a sufficient interest or a right in terms of FC s 34, either of whichprovided standing.

4 1997 (7) BCLR 907 (C).5 See for instance Chief Justice Rehnquist’s opinion in Walters v National Association of Radiation Survivors

105 SCt 3180 (1985).6 It is also possible to cast as questions of standing some of the issues discussed as matters of application.7 See e g Xu v Minister van Binnelandse Sake 1995 (1) SA 185 (T) (dismissing an application under IC s 24(c)

requesting reasons for a refusal to grant a temporary residence permit on the grounds that no constitutional right orinterest existed; locus standi assumed).



But at least three reasons militate against an application-based reading of the ‘where’clauses in s 33. The first is textual. The ‘where’ clauses in s 33 are the only places in Chapter 2which explicitly make the strength of the applicant’s interest a prerequisite to the exercise ofa constitutional right.1 And these clauses do so using the same terminology employed inIC s 7(4) and FC s 38 in relation to standing.

A second reason of constitutional policy also argues in favour of reading these provisionsas standing provisions. By doing so courts would be confirming that administrative agenciesare bound by the administrative justice requirements of s 33. Without such an interpretation ofthe ‘where’ clauses administrative agencies are likely to read judicial decisions upholding agencyaction under s 33 as meaning that the agency does not need to consider itself bound by s 33.

Finally, as a third reason, a standing interpretation of the ‘where’ clauses encourages theseparate institutions of the government to respond to each other over the meaning ofthe content of the section even where the administrative action is not judicially struck down.A dialogue over the content of s 33 can thus occur among the separate institutions of thelegislature, the judiciary and the executive.2

25.5 CONTENT OF THE RIGHT: SECTION 33(a)

13Covering the broadest range of administrative action, s 33(a)’s grant of lawful administrativeaction serves the purpose of guarding against parliamentary ouster clauses (perhaps alongwith s 34). Section 33(a) means at a minimum that an Act of Parliament cannot oust a court’sconstitutional jurisdiction and deprive the courts of their review function to ensure thelawfulness of administrative action. Thus important decisions such as Staatspresident vUnited Democratic Front 3 and Natal Indian Congress v State President,4 validating judicialouster clauses, will have to be revisited in the light of s 33(a).

Section 33 perhaps also contains a restriction on vague and uncertain delegated legisla-tion.5 However, whether this vagueness doctrine is embodied in s 33(a) or s 33(b) is unclear.The choice has important implications since the standing/application requirements differ,s 33(a) applying broadly to interests, and s 33(b) to rights and legitimate expectations only.

1 For an early case reading a statutory threshold of ‘affect’ as a matter of standing, see Wilson v Zondi 1967 (4)SA 713 (N).

2 Beyond the doctrine of the separation of powers another conceptual root of this policy is the limitations clause.Decisions made by the judiciary on the basis of standing could be overruled by the legislature as part of anadministrative justice act, but such legislative action would need to pass limitations clause analysis, giving thejudiciary another chance to find the appropriate balance for administrative justice.

3 1988 (4) SA 830 (A).4 1989 (3) SA 588 (D).5 This requirement that delegations of lawmaking power contain precise directions and standards is additional

to the similar requirement in the limitations clause. However, by its source in s 33 the requirement would applyeven without a separate fundamental right being infringed by the delegated legislation. Note that a law found vagueunder s 33 would most probably not be saved by the limitations clause because it would not amount to a law ofgeneral application.



In Farjas (Pty) Ltd v Regional Land Claims Commissioner, KwaZulu-Natal 1 s 24(a) wassaid to ‘cast a duty on reviewing courts to be all the more astute to ensure that public officialsconfine themselves strictly to the law which confers powers on them’.

The Constitutional Court has also made it clear that the Constitution supports a principleof legality independent of the administrative justice clause. Such a principle of legalityis ‘central to the concept of our constitutional order’ and would be applicable in contextswhere the s 33(a) right was not.2 ‘In relation to ‘administrative action’ the principle oflegality is enshrined in section 24(a). In relation to legislation and executive acts that do notconstitute ‘administrative action’, the principle of legality is necessarily implicit in theConstitution.’3

25.6 CONTENT OF THE RIGHT: SECTION 33(b)

14Section 33(b) grants every person whose rights or legitimate expectations are affected orthreatened a right of procedurally fair administrative action.4 As discussed above, this shouldbe taken to mean that legislated administrative procedures must themselves satisfy thedictates of this section.

The Constitutional Court has indicated that it will adopt a balancing approach indetermining the content of administrative justice in Transvaal Agricultural Union v Ministerof Land Affairs & another.5 In obiter dicta the court (per Chaskalson P) gave some guidanceto a court attempting to determine whether the provisions of the Restitution of Land RightsAct6 could survive a challenge under the procedural fairness provision of the right toadministrative justice. The Act provided for the registration of non-frivolous claims to landand prohibited the owners of land so claimed from evicting the claimants or interfering withimprovements. However, the owners could request permission from a Commissioner to takethese actions and decisions of the Commissioner could be reviewed by the Land ClaimsCourt. In considering this Act the court stated (at para 30):

‘Without attempting to lay down what will be involved in such an inquiry [whether the constitutionalrequirement of procedurally fair administrative action requires notice to be given to landownersbefore a notice of a claim to such land is published in terms of s 11(1) of the Act], it seems clear

1 1998 (2) SA 900 (LCC) at 913C, 1998 (5) BCLR 579 (LCC).2 See Fedsure Life Assurance Ltd & others v Greater Johannesburg Transitional Metropolitan Council & others

1999 (1) SA 374 (CC), 1998 (10) BCLR 1458 (CC) at para 58. See also New National Party of South Africa vGovernment of the Republic of South Africa & others 1999 (3) SA 191 (CC), 1999 (5) BCLR 489 (CC) at para 19(statute will be unconstitutional unless there is a rational connection between the legislative scheme and theachievement of a legitimate governmental purpose).

3 Fedsure (supra) at para 59.4 Unlike other fundamental justice or due process clauses, s 33 does not specify the particular rights that will

trigger s 33(b). For instance, the American due process clause is textually predicated upon deprivations of life, libertyor property. Persons may not be deprived of these rights without due process of law. The Canadian fundamental justiceclause is predicated upon life, liberty and the security of the person. Section 33(b)’s protection will presumably betriggered by those rights entrenched elsewhere in Chapter 3 as well as statutory or common-law rights. Further, thefailure to use the term ‘interest’ in s 33(b) must mean that mere economic interests such as those protected by s 2(e)of the Canadian Bill of Rights are not protected here. See Hogg Constitutional Law of Canada sec 44.9.

5 1997 (2) SA 621 (CC), 1996 (12) BCLR 1573 (CC).6 Act 22 of 1994.



that a court would have to weigh up the interests of the claimants against those of the landowners,and consideration would have to be given to issues such as the temporary nature of the impediment;the purpose served by the status quo provision of section 11(7) [of the Restitution of Land RightsAct]; whether there is a need for expedition in securing that purpose once a claim has been lodged;the harm done to landowners by the impediments placed upon them by section 11(7) and (8); thevulnerability of the claimants and the harm that might be suffered by them if the status quo is notpreserved; and the fact that there is an unrestricted right to approach a different official, the ChiefLand Claims Commissioner, for authority to evict a claimant or interfere with improvements on theland. It might also be necessary to consider whether the Act reasonably requires claims to beprocessed expeditiously.’

15 Without losing sight of the court’s cautionary caveat, one can draw from this considerationperhaps four points. First, the court is clear that proper statutory interpretation should bedone in the shadow of the Constitution. Secondly, the court appears to state that a variablemulti-factor balancing approach will be used to determine the content of procedural fairness.This is not unlike the court’s initial approach to the limitations clause, now enshrined in thefinal Constitution.1 Thirdly, this balancing is done in the context of the whole Act or legalinstrument in question. Fourthly, the provision of an internal appeal procedure ---- especiallyone such as in the Restitution of Land Rights Act with different officials and multiple layersof appeal ---- is a factor that cuts in favour of the constitutionality of such an Act.

The Constitutional Court’s first decision turning on procedural fairness is Premier,Mpumalanga, & another v Executive Committee of the Association of Governing Bodies ofState-Aided Schools: Eastern Transvaal.2 In this case, at para 36, O’Regan J appearedessentially to follow previous common-law jurisprudence in giving content to the conceptof legitimate expectation.3 In defining the content of procedural fairness, she put the matteras follows:4

‘In determining what constitutes procedural fairness in a given case, a court should be slow toimpose obligations upon government which will inhibit its ability to make and implement policyeffectively (a principle well recognised in our common law and that of other countries). As a youngdemocracy facing immense challenges of transformation, we cannot deny the importance of theneed to ensure the ability of the executive to act efficiently and promptly. On the other hand, topermit the implementation of retroactive decisions without, for example, affording parties aneffective opportunity to make representations would flout another important principle, that ofprocedural fairness.’

In this space, it is possible only to canvass some of the starting points of the substantivelaw relating to the content of procedural fairness.5 Broadly one can assume that jurisprudenceon natural justice will provide a starting point for s 33(b). But one cannot assume that theterms ‘procedural fairness’ and ‘natural justice’ are equivalent. The use of a different termprobably indicates a willingness for the courts to develop procedural fairness beyondpre-Constitutional notions of natural justice. Thus in determining what procedural fairness

1 See above, Woolman ‘Limitation’ ch 12.2 1999 (2) SA 91 (CC), 1999 (2) BCLR 151 (CC).3 At para 36. See discussion below, § 25.6.4 At para 41.5 The content of procedural fairness with respect to bias is discussed with the right to access to courts below,

§ 25.10.



is due in specific situations the courts will not be limited by earlier decisions as to the scopeof natural justice.1

16 What kind of administrative action will attract a hearing, the most stringent of the fairnessrequirements? This question is best answered with a starting point relying upon the distinc-tion between general and specific administrative action. It is possible to distinguish decisionswhich have a particular impact upon individuals from those which impact generally upon acommunity or a class of individuals. This distinction is the one elaborated upon by Milne JAin South African Roads Board v Johannesburg City Council.2 While decisions in the formercategory should be preceded by a hearing, procedural fairness in the latter category willbe satisfied by less onerous procedures, such as notice and comment procedures or perhapsmere publication in the Government Gazette. This approach was used by the court inGardener v East London Transitional Local Council & others,3 where Erasmus J statedthat ‘I do not understand s 24(b) to mean that the audi principle is absolutely applicable toevery administrative act’.

The courts have used the constitutional guarantee of procedural fairness in a number ofinstances to require greater protection. As part of the procedural requirement of notice, theinterim Constitution has been held to require reference to an agency’s unwritten policies.4 Ithas also been held to require sufficient particularity of alleged offences.5 Upon dissolution

1 See Van Huyssteen v Minister of Environmental Affairs and Tourism 1996 (1) SA 283 (C) at 304A--306A, 1995(9) BCLR 1191 (C) (‘I do not think that one can regard s 24(b) [of the interim Constitution] as codifying the existinglaw and thus read down, as it were, the wide language of the paragraph, unless the existing law was already so wideand flexible that it was covered by the concept of procedural fairness’ per Farlam J).

2 1991 (4) SA 1 (A). In the US the same distinction between general and specific administrative action is appliedto determine whether a hearing needs to be granted. See Londoner v Denver 210 US 373, 28 SCt 708 (1908) andBi-Metallic Inv Co v State Bd of Equalization 239 US 441, 35 SCt 141 (1915). As regards the granting of a hearing,the SA Roads Board distinction is arguably tilted in favour of seeing a group as a body particularly affected (thusdeserving a hearing) rather than as a class or category of equally affected persons (and thus not meriting a hearing).Cases where local authorities have decided to evict persons from public land have tended to deny the group ofpersons concerned a right to be heard and might be explicable as employing (if stretching) the rationale that thedecision affected a class of persons equally. See e g Uitenhage Local Transitional Council v Zenza & others 1997(8) BCLR 1115 (SE). At least to the extent that the constitutional right of administrative justice was in play, thiscase was wrongly decided on the rationale that the local authority’s decision did not constitute administrative actionbecause there is ‘no difference in principle whatsoever between a land owner who happens to be a publicauthority . . . and any other citizen of this land who happens to be a land owner, if he decides to approach the courtto have illegal squatters evicted from his land’ (Uitenhage Local Transitional Council v Zenza & others 1997 (8)BCLR 1115 (SE) at 1118J--1119A, quoting The City Council of Greater Benoni v The Rietfontein Squatters(unreported, case number 2675/95, Witwatersrand Local Division, 1 March 1996)). Actions taken by publicauthorities are, however, subject to the Constitution (see above, Woolman ‘Application’ § 10.3(a)(iv)(aa) and(bb)), and there appears no feature of the case to suggest that the action was the application of original legislativepower and thus not administrative.

3 1996 (3) SA 99 (E) at 116E.4 Tseleng v Chairman, Unemployment Insurance Board, & another 1995 (3) SA 162 (T), 1995 (2) BCLR 138

(T). This has been criticized as burdensome by Asimow ‘Administrative Law Under South Africa’s Final Constitu-tion: The Need for an Administrative Justice Act’ (1996) 113 SALJ 613 at 618.

5 In Park-Ross v Director: Office for Serious Economic Offences 1998 (1) SA 108 (C), 1997 (2) SACR 401 (C)the court assumed that the applicant had a legitimate expectation of sufficient particularity of disclosure ofinformation in order to allow the applicant to respond to an expressly granted opportunity to reply to allegations inthe course of a preliminary and investigatory stage of compiling a report. Thus s 24(b) applied. However, theprocedural fairness required to protect this expectation was satisfied on the facts by an outline of the charge.



of a state corporation affecting a limited number of employees, procedural fairness requirescompliance with the audi alteram partem principle, although perhaps in the form of noticeand comment procedures.1 The right of administrative justice has also been used to invalidatethe provisions of a statute allowing ad hoc attachment and freezing of assets before thecompletion of an investigation.2

17 In other instances the administrative justice clause has been applied but found to besatisfied. The statutory regime providing no hearing before presidential consent may be givento extradition in terms of the Extradition Act3 has been judged constitutional.4

The concept of legitimate expectations is clearly a primary one through which our courtswill address many issues of procedural fairness. In Premier, Mpumalanga O’Regan J restatedCorbett CJ’s decision in Traub in the following terms (para 35):5

‘Corbett CJ also recognized that a legitimate expectation might arise in at least two circumstances:first, where a person enjoys an expectation of a privilege or a benefit of which it would not be fairto deprive him or her without a fair hearing; and, secondly, in circumstances where the previousconduct of an official has given rise to an expectation that a particular procedure will be followedbefore a decision is made.’

The concept of legitimate expectations may be usefully thought of in three categories:express promise, regular and long-standing practice, and fairness. An official may engendera legitimate expectation through an express promise or one may be the result of a regular andlong-standing administrative practice. Both of these categories fit into the category ofprevious conduct of an official. The third category is a residual one, fairness, and is the firstmentioned by O’Regan J. Fitting in the category of express promise, in Premier, Mpumalangaan association of governing bodies of ‘Model C’ schools, which mainly educated whitechildren, challenged a decision of the Mpumalanga province Member of the ExecutiveCouncil (MEC) to terminate bursaries paid to their students as a violation of the right toadministrative justice. The MEC had discontinued the bursaries retrospectively, withoutreasonable notice, and without affording the association of governing bodies an opportunityto be heard or to take action to avoid the impact of the action. The court decided that theassociation had a legitimate expectation and that the right to procedural fairness had beenviolated. That express promises were made in a political context is a factor counting againsttheir giving rise to legitimate expectations.6

1 Cekeshe & others v Premier for the Province of the Eastern Cape & others 1999 (3) SA 56 (Tk), 1997 (12)BCLR 1746 (Tk) at 1771H.

2 Janse van Rensburg NO v Minister van Handel and Nywerheid 1999 (2) BCLR 204 (T) (s 8(5)(a) of the HarmfulBusiness Practices Act 71 of 1988 unconstitutional).

3 Act 67 of 1962.4 Harksen v President of the Republic of South Africa & others 1998 (2) SA 1011 (C).5 Premier, Mpumalanga (supra) at para 35 (citing Administrator, Transvaal v Traub 1989 (4) SA 731 (A)).6 Bushbuck Ridge Border Committee & another v Government of the Northern Province & others 1999 (2) BCLR

193 (T) at 199H and 200C. See also the discussion of the appropriate remedy in Premier, Mpumalanga (supra) atparas 50--1.



In Tettey & another v Minister of Home Affairs & another official undertakings were heldsufficient to establish a legitimate expectation to be permitted to apply for permanentresidence within the country.1

Fitting in the category of long-standing practice, in Jenkins v Government of the Republicof South Africa & another the court found a legitimate expectation of a hearing where anofficial had been allowed to use a vehicle and occupy premises for a period of more thaneighteen months with no interruption.2

18 Finally, the specific use of the term ‘procedural fairness’ in s 33(b) is unlikely to settlethe debate over whether the Constitution (and notions of natural justice) has a substantiveas well as a procedural component. The Indian Supreme Court, for example, has given asubstantive interpretation to art 21 of that country’s Constitution, which gives protectionagainst deprivation of life and liberty ‘except according to procedure established by law’.3 TheSouth African debate has arisen within the definition of the term ‘legitimate expectation’.4

It seems clear that procedural protection may be given to legitimate expectations or rightswhich are themselves ‘substantive’ as well as ‘procedural’. But will ‘substantive’ protectionbe given to ‘substantive’ legitimate expectations? Section 33(b) does not answer thisquestion. O’Regan J in Premier, Province of Mpumalanga, & another v Executive Committeeof the Association of Governing Bodies of State-Aided Schools: Eastern Transvaal seemedto leave this question open.5

25.7 CONTENT OF THE RIGHT: SECTION 33(c)

Section 33(c) provides a right to be furnished with reasons in writing for administrative actionwhich affects one’s rights or interests unless the reasons for such action have been madepublic. Although a body of jurisprudence around specific statutory requirements to givereasons exists, the requirement of written reasons now applies generally and now enjoysconstitutional status.

1 1999 (3) SA 715 (D), 1999 (1) BCLR 68 (D) at 77I--78A. See also Claude Neon Ltd v City Council of Germiston& another 1995 (3) SA 710 (W) (existence of legitimate expectation in context of IC s 24(b) based on expressundertaking by respondent) and South African Rugby Football Union & others v President of the Republic of SouthAfrica & others 1998 (10) BCLR 1256 (T) at 1291J--1292H (agreement between parties relating to the appointmentof a commission of inquiry created legitimate expectations of procedures to be followed in event of its breach). Butsee also Khani v Premier, Vrystaat, en andere 1999 (2) SA 863 (O) (undertakings by an official which were illegaland ultra vires will not found a legitimate expectation).

2 1996 (3) SA 1083 (Tk) at 1095A--B, 1996 (8) BCLR 1059 (Tk).3 D Davis, M Chaskalson & J de Waal ‘Democracy and Constitutionalism: The Role of Constitutional

Interpretation’ in Van Wyk et al (eds) Rights and Constitutionalism: The New South African Legal Order (1994) 1at 46. See also Jeeva v Receiver of Revenue, Port Elizabeth 1995 (2) SA 433 (SE) at 443I--J (suggesting that IC s 24entitles persons to ‘administrative action which is lawful, justifiable and both substantially and procedurally fair’);Pennington v The Minister of Justice & others 1995 (3) BCLR 270 (C) at 277B--E (equitable considerations shouldoutweigh efficiency concerns in certain exercises of ministerial discretion).

4 See Administrator, Transvaal v Traub at 758; C F Forsyth ‘The Provenance and Protection of LegitimateExpectations’ (1988) 47 Cambridge LJ 238 at 247--50; J Grogan ‘When Is the ‘‘Expectation’’ of a Hearing‘‘Legitimate’’?’ (1990) 6 SAJHR 36 at 38--40.

5 1999 (2) SA 91 (CC), 1999 (2) BCLR 151 (CC) at para 36.



As is done in ss 32 and 33, a distinction should be drawn between reasons and information.While reasons are presumably based upon information, a statement of reasons aims to justifythe administrative action taken not to present the information upon which the action is based.1

The duty to give reasons may in certain situations precede a duty to provide access toinformation.2

19 The courts will have to determine whether the right to be furnished with reasons impliesthat a request for reasons must first be made. The passive phrasing of s 33(c) combined withthe active phrasing of the entire administrative justice clause suggests this reading.3 Nonethe less, courts may interpret s 33(c) to require written reasons without prior request in certainclasses of decisions. Further, what level of detail is required in the statement of writtenreasons?4 Will reasons be interpreted to include findings of fact as well as the resolution oflegal questions? When a request is made, must specific questions be responded to? Presum-ably the courts will interpret s 33(c) flexibly. However, where the level of detail provided isinadequate, s 33(c) will have been infringed. Finally, what degree of publicity will be requiredto satisfy the proviso in s 33(c) and preclude the necessity for furnishing of reasons in writing?The courts will need to decide whether a posted circular available for public inspection issufficient. Must a notice be published in the Government Gazette or in a newspaper of generalcirculation? A purposive interpretation would suggest that the reasons should at least becapable of coming to the attention of the affected persons.

25.8 CONTENT OF THE RIGHT: SECTION 33(d)

Section 33(d) grants a right to administrative action ‘which is justifiable in relation to thereasons given for it’. It is the key substantive addition to the administrative justice clause. Asa constitutional command for rational decision-making, s 33(d) is likely to contribute tosignificant change in South African public administration.

In the courts, via the operation of s 39(2), s 33(d) is likely to contribute to the overrulingof the common-law doctrine of symptomatic unreasonableness. According to this doctrine,unreasonableness itself was not a reviewable defect, but was only reviewable to the extentthat it pointed to the existence of another reviewable defect.5 Likewise, s 33(d) should alsohelp to overrule doctrine holding that the degree of unreasonableness must be egregious.6 Whileunreasonableness was already a ground of review for delegated legislation, the common lawmay now also include unreasonableness review of administrative decisions as well.7

1 See Baxter Administrative Law (1984) 228--30 (distinguishing between basic findings, ultimate findings, andreasons).

2 Goodman Bros (Pty) Ltd v Transnet Ltd 1998 (8) BCLR 1024 (W) at 1036F.3 See Gardener v East London Transitional Local Council & others 1996 (3) SA 99 (E) at 115I.4 See Moletsane v Premier of the Free State & another 1996 (2) SA 95 (O) at 98G--H, 1995 (9) BCLR (O) at

1288B (‘the more drastic the action taken, the more detailed the reasons which are advanced should be’).5 See e g Union Government v Union Steel Corporation (South Africa) Ltd 1928 AD 220 at 236--7.6 The standard is ‘grossly unreasonable to so striking a degree’, as stated in National Transport Commission v

Chetty’s Motor Transport (Pty) Ltd 1972 (3) SA 726 (A) at 735.7 Without explicitly basing his judgment upon IC s 24(d), Freidman J takes the view, in Standard Bank of

Bophuthatswana v Reynolds NO & others 1995 (3) BCLR 305 (B) at 325F, that the Constitution requires the courtsto adopt the test of unreasonableness and not that of gross unreasonableness as the appropriate post-Constitutionalstandard of judicial review of administrative action.



‘Justifiable’ in IC s 24(d) and s 33(d) should be read as a synonym for ‘reasonable’, butin a constitutional sense. While the term emerged as an alternative to ‘reasonable’ in thedrafting process of the interim Constitution, in developing a theory of what makes action‘justifiable’ courts will undoubtedly go beyond original intent.1 Such justifiability is not amatter of second-guessing the policy choices of administrators and substituting judicialpolicy choices for those of the legislature, but rather of examining the soundness of theprocess of decision-making.2 FC s 33(1) uses the term ‘reasonable’.20 Two different types of justifiability attacks may be launched upon administrative action.First, the action may be unjustifiable on its face. This is the case where any implementationof the action would be unjustifiable. Secondly, the action may be valid on its face but nonethe less unjustifiable as applied in certain circumstances.

In asking whether an action is justifiable under s 33(d) 3 the key issue is what reasons areenvisaged by the phrase ‘justifiable in relation to the reasons given for it’.4 Several answersare possible. The most obvious answer comes from s 33(c): ‘the reasons given’ (either inwriting or by prior public notice) for the administrative action are those given under s 33(c).Thus the justification must be in relation to the reasons given in writing under s 33(c) unlessthey were made public before. This interpretation, which reads s 33(d) back into s 33(c),should, however, be rejected for reasons of policy and of text. The danger of reading s 33(c)and s 33(d) together is that it would hamper administrative effectiveness. An overworked andjunior administrative official may dash off one or two reasons in fulfilling the requirementof s 33(c) for written reasons.5 Such a hasty response is entirely possible, even if s 33(c) isinterpreted to mean reasons must be furnished only on request, since most s 33(c) requestswill not lead to judicial action. If the administrative body was subsequently found to berestricted to defending its action only in terms of these reasons in attempting to justify theaction in court under s 33(d), much administrative action challenged in court would fail. Thiscould short-circuit effective administrative action without comparable gain in the direction

1 The intention of its original proposers was to cover the same ground as the term ‘reasonable’. Indeed, for theoriginal drafter of ‘justification’ review, its content was set out by the proposed clause 18(2) of the CompromiseAdministrative Justice Clause, which demanded a rational connection between the decision and the reasons for thedecision, answers to objections, and explanations for declining to follow alternatives. Thus a justifiable action willbe one where the official has considered all the serious objections to the action and has answers which plausiblymeet them, and where the official has considered the serious alternatives to the action and has rejected them forplausible reasons. Moreover, a justifiable action will be one where there is a rational connection between theinformation (evidence and argument) supporting the action and the action taken. Note that this definition wasoriginally developed in relation to review of American informal rule-making under the Administrative Procedures Act.

2 See E Mureinik ‘Reconsidering Review: Participation and Accountability’ (1993) Acta Juridica 35 at 40--3.Justifiability or reasonableness in administrative law cannot be the same concept as reasonableness in ordinarycriminal or delictual law. The reasonable person test does not apply to administrative law, whereas ‘reasonableness’marks off decisions as tolerable even where they may be wrong. See also Kotze v Minister of Health & another1996 (3) BCLR 417 (T) at 425E--426B.

3 See Baxter Administrative Law at 524--5.4 The phrase ‘in relation to’ seems to indicate that the decision is to be measured against a set of reasons. If the

reasons do not support the action, it should be struck down. If, perhaps through application of the s 32 access toinformation procedure, an applicant can demonstrate that an alternative was not considered or a serious objectionnot answered, then the action would not be justifiable.

5 For a potential example, see National and Overseas Modular Construction v Tender Board FS 1999 (1) SA701 (O) (reading justifiable in terms of the reasons given in terms of s 33(c)). Note that a computer may have thecapacity to provide only some of the reasons given to justify a decision. See Roman v Williams NO 1998 (1) SA270 (C), 1997 (9) BCLR 1267 (C) at 1272J.



of fair decision-making. Moreover, beyond the policy argument there is a textual argumentagainst such an interpretation: the scope of the two subclauses is different. Section 33(d)applies to rights only while s 33(c) applies to both rights and interests.

Possible interpretations of s 33(d)’s reference to ‘the reasons given’ are (in increasingorder of generality): (1) the reasons given in terms of s 33(c); (2) the reasons formulated bythe administrative body in the course of taking its action (but not necessarily furnished interms of s 33(c));1 (3) the reasons that can be drawn from the materials and informationavailable to the administrative body during the course of the decision; (4) the reasonsadvanced by the government’s lawyers in attempting to defend the action of the administrativebody as justifiable; and (5) any notional reasons that the court itself may imagine.2

21 It is submitted that an interpretation which allows the administrative body to justify itsaction on the basis of the reasons contained in the first three levels of reasons above wouldconstitute a balanced judicial approach to the needs of an effective public administration. Bytying the reasons to the information available to the administrative body a rational andparticipatory decision-making process is encouraged. The idea is that administrators shouldsoon learn that to withstand court review under s 33(d) they should engage in a rational andjustifiable internal decision-making process.3

Courts thus far have employed a relatively vague test of proportionality between thereasons and the decision. In Municipality of the City of Port Elizabeth v Prut NO & another4

the court found ‘sound and practical reasons’ to justify writing off arrear service charges andnot arrear rates. In Roman v Williams NO,5 a case considering the provisions of FC s 33 readwith item 23(2)(b) of Schedule 6, the court applied a test of ‘suitability, necessity, andproportionality’ to a decision of the Commissioner of Correctional Services to re-imprisona probationer who had inter alia violated his conditions of probation. In an examination that

1 Here, consistent with the above argument, there could be more relaxed scrutiny for s 33(c) reasons. See e gCamp v Pitts 411 US 138, 93 SCt 1241 (1973) (if administrative explanation is contemporaneous, the depth of theexplanation need not be great to survive rationality review).

2 See e g Motor Vehicles Mfrs Ass’n v State Farm Mut Auto Ins Co 463 US 29, 103 SCt 2856 (1983) (administrativeagency ‘must examine the relevant data and articulate a satisfactory explanation for its action including a ‘‘rationalconnection between the facts found and the choice made.’’ ’); Citizens to Preserve Overton Park v Volpe 401 US402, 91 SCt 814 (1971) (rationality of agency action evaluated in terms of the information collected by the agencyin the course of its decision-making (the administrative record), its reasoning based on that record, and its responseto objections).

3 One court has invoked s 33(d) as part of the rationale for ordering that a broad selection of documents shouldconstitute the record of the proceedings for the purposes of review in terms of Rule 53 of the Uniform Rules ofCourt. Afrisun Mpumalanga (Pty) Ltd v Kunene NO & others 1999 (2) SA 599 (T) (citing Van Niekerk v PretoriaCity Council 1997 (3) SA 839 (T) at 846H--848G).

4 1997 (6) BCLR 828 (SE).5 1998 (1) SA 270 (C), 1997 (9) BCLR 1267 (C).



clearly extended to the substance and merits of the challenged action the court found thatdecision justifiable in relation to the reasons given for it.22 In interpreting the review grounds in terms of the Labour Relations Act,1 the LabourAppeal Court stated the justifiabilty test as follows: ‘Is there a rational objective basisjustifying the conclusion made by the administrative decision-maker between the materialproperly available to him and the conclusion he or she eventually arrived at?’2

25.9 LIMITATION CLAUSE

Could a law that does not conform to the requirements of procedural fairness under s 33(b)none the less be saved by the limitations clause, s 36? More generally, could the infringementof the right to lawful administrative action or the right to have reasons given be upheld unders 36? This issue has stimulated judicial debate in Canada, where the majority answer hasbeen ‘yes, in theory’, although no case has so held.3 The rationale against such applicabilityis that the right to administrative action is already a limited right; it is qualified by the notionof regularity and reasonableness inherent in the standard of procedural fairness. Additionally,would administrative law qualify as a law of general application for limitations clausepurposes?4 In obiter dicta in Du Plessis & others v De Klerk & another the court indicatedthat ‘general principles of administrative law’ would so qualify.5

In upholding summary procedures in the tax collection laws, one court has resorted to thelimitations clause.6

However, the decision of Premier, Province of Mpumalanga & another v ExecutiveCommittee of the Association of Governing Bodies of State-Aided Schools: Eastern Trans-vaal gives an important indication that an administrative decision taken by an individual doesnot constitute law of general application and thus fails the limitations test.7 Thus, O’ReganJ did not need to measure the decision of the Member of Executive Council responsible foreducation in Mpumalanga to terminate payment of bursaries against the substance of thelimitations clause.

1 Act 66 of 1995.2 Carephone (Pty) Ltd v Marcus NO & others 1999 (3) SA 304 (LAC), 1998 (10) BCLR 1326 (LAC) at para 37.3 See Hogg Constitutional Law of Canada sec 35.14(b). While the limitations analysis has been routinely applied

to infringements of fundamental justice (the closest parallel right in the Canadian Charter to s 24), the limitationsdiscussions have essentially ‘rehearsed’ the arguments made at the rights-infringement stage. One possible areawhere the limitations clause could have bite would be exceptional circumstances such as natural disasters, etc. SeeReference Re s 94(2) of the BC Motor Vehicle Act (BC) (1985) 24 DLR (4th) 536, 2 SCR 486 at 518 (Lamer J).

4 See above, Woolman ‘Limitation’ § 12.5.5 1996 (3) SA 850 (CC), 1996 (5) BCLR 658 (CC) at para 44. See President of the Republic of South Africa &

another v Hugo 1997 (4) SA 1 (CC), 1997 (6) BCLR 708 (CC) at paras 50, 76, 95--104.6 Hindry v Nedcor Bank Ltd & another 1999 (2) SA 757 (W) at 782C (upholding s 99 of the Income Tax Act 58

of 1962).7 1999 (2) SA 91 (CC), 1999 (2) BCLR 151 (CC) at para 42.



23 It is submitted that administrative action which infringed s 33 would very rarely pass s 36analysis.1 Once s 33 applies and decrees a specific duty it is hard to see how a limitationcould pass the test of s 36. This has particular weight for s 33(b).

25.10 ANOTHER RIGHT OF ADMINISTRATIVE JUSTICE: FC SECTION 342

Entitled ‘Access to courts’, FC s 34 none the less clearly applies to administrative tribunals aswell as courts of law. Interpreting the predecessor right, IC s 22, Ackermann J stated as follows:3

‘When [IC] s 22 is read with [IC] s 96(2), which provides that ‘‘[t]he Judiciary shall be independent,impartial and subject only to this Constitution and the law’’, the purpose of s 22 seems to be clear.It is to emphasise and protect generally, but also specifically for the protection of the individual,the separation of powers, particularly the separation of the judiciary from the other arms of the state.Section 22 achieves this by ensuring that the courts and other fora which settle justiciable disputesare independent and impartial . . . By constitutionalising the requirements of independence andimpartiality the section places the nature of the courts or other adjudicating fora beyond debate andavoids the dangers alluded to by Van den Heever JA in the Harris case.’

The access to courts right is thus both less and more than a right to seek judicial redress.It does not demand that all justiciable cases be heard by the judiciary, but it placesconstitutional criteria upon the operation of other adjudicating fora in addition to the courts.Expansively interpreted, it may be the kind of general due process right that the Bill of Rightsotherwise lacks.4 To date such a right has had a real impact in foreign jurisdictions, largelyin terms of the access of poor persons to the legal process.5 In the civil context this has in

1 One South African case invoked IC s 33 to limit the administrative justice clause. See Podlas v Cohen andBryden NNO & others 1994 (4) SA 662 (T) at 675D--J: ‘There would be utter chaos if every official authorized toissue such a notice, summons or subpoena were required to hear the person who is to be summoned before actuallyissuing the notice, summons, or subpoena.’ However, it is extremely doubtful that IC s 24 itself required a hearingbefore the issuing of a notice. It is also doubtful that the applicant had standing. There was thus no need to invokes 33. Note that the court also appeared to find that s 24 had no application in this case on the basis that no rightswere prejudicially affected: Podlas at 675I--J.

2 A third right of administrative justice, access to information (FC s 32), is covered above, Klaaren ‘Access toInformation’ ch 24. Another right which performs some of the functions of due process clause is the limitationclause, discussed above, Woolman ‘Limitation’ ch 12.

3 Bernstein & others v Bester & others NNO 1996 (2) SA 751 (CC), 1996 (4) BCLR 449 (CC) at para 105. Fora discussion of the separation of powers, see above, Chaskalson & Klaaren ‘National Government’ ch 3. In Mohlomiv Minister of Defence 1997 (1) SA 124 (CC), 1996 (12) BCLR 1559 (CC) at para 12 Didcott J defined the right ofjudicial access to depend ‘upon the availability of an initial opportunity to exercise the right that amounts, in all thecircumstances characterizing the class of case in question, to a real and fair one. The test, thus formulated, lendsitself to no hard and fast rule which shows us where to draw the line.’

4 See Concorde Plastics (Pty) Ltd v NUMSA & others 1997 (11) BCLR 1624 (LAC) (Marcus AJ) (the access tocourt right supports affording protection from adverse consequences, including dismissal, to those who testify in acourt of law or who are subpoenaed to do so); cf the discussion of the right of access to courts below, Snyckers‘Criminal Procedure’ § 27.1(a)(v).

5 For instance, the US has recognized the right of access in the penal context. See Bounds v Smith 430 US 817at 828, 97 SCt 1491 (1977): ‘[T]he fundamental constitutional right of access to the courts requires prison authoritiesto assist inmates in the preparation and filling of meaningful legal papers by providing prisoners with adequate lawlibraries or adequate assistance from persons trained in the law.’ Moreover, while legal representation in criminalmatters is covered by s 35(3)(g), s 34 may afford a right to legal representation in civil matters as well. See Lassiterv Department of Social Services 452 US 18, 101 SCt 2153 (1981) (no constitutional right to legal representationfor indigent mother whose child is being taken away permanently).



certain very limited cases meant a waiver of court costs for poor litigants.1 Moreover, civilprocedural rules such as prescription may also be affected by this section. If the period ofprescription is so brief as to render access to the court meaningless, it may be struck down.2

Thus, in Mohlomi v Minister of Defence3 the Constitutional Court struck down s 113(1) ofthe Defence Act4 (the six-month prescription period in relation to claims against the NationalDefence Force) on the basis of a violation of the access to court provision of the Constitution.24 Section 34 may well have an important impact in more traditional administrative-lawcontexts. For instance, in conjunction with s 33(a), s 34 supports the conclusion that statutoryouster clauses will be disfavoured. Along with s 33(b), s 34 may also provide the foundationfor the structuring of administrative tribunals and boards of appeals.5 The section explicitlyrefers to an ‘independent and impartial’ forum as an appropriate alternative to a court of law.Thus an administrative tribunal would need to satisfy s 34’s requirements of independenceand impartiality. These requirements of s 34 may be read to extend beyond s 33(b)’s contentof procedural justice. For instance, there may be a requirement based on s 34 that the internalstructuring of an administrative body may not vest in a single administrative official thepower to investigate, prosecute, and adjudicate the same claim. This would mean thatthe South African law of institutional bias is ripe for overhaul.6

1 Boddie v Connecticut 401 US 371, 91 SCt 780 (1971) (filing fees for indigent plaintiffs in a divorce actionunconstitutional); but see Ortwein v Schwab 410 US 656, 93 SCt 1172 (1973) (per curiam) (an individualchallenging termination of welfare benefits could be excluded from court for failure to pay a court filing fee).

In Lappeman Diamond Cutting Works v MIB Group (No 1) 1997 (4) SA 908 (W) IC s 22 read with IC s 8 (theright to equality) rendered invalid the courts’ previous rule of leaning towards the granting of security in terms of s13 of the Companies Act 61 of 1973 when it appears by credible testimony that there is reason to believe that acompany as plaintiff or applicant will be unable to pay the costs of the defendant or respondent if successful in itsdefence.

2 Pickett v Brown 462 US 1, 103 SCt 3308 (1983) (state statute providing a two-year proscription in paternityand support action invalidated).

3 1997 (1) SA 124 (CC), 1996 (12) BCLR 1559 (CC). The constitutionality of comparable statutory limitationsupon civil actions against the state has been challenged on both equality and access to court grounds with differingresults. See Qokose v Chairman, Ciskei Council of State, & others 1994 (2) SA 198 (Ck) (s 48(1) of the CiskeiPolice Act 32 of 1983 denies equal protection of the law), reversed on appeal, Chairman, Ciskei Council of State,& another v Qokose 1994 (2) BCLR 1 (Ck); Zantsi v Chairman, Council of State, Ciskei 1995 (2) SA 524 (Ck) at566F (s 71 of the Ciskei Defence Act 17 of 1986 violates the right to equality before the law and the right to equalaccess to the courts guaranteed by IC s 22).

4 Act 44 of 1957.5 In Bernstein & others v Bester & others NNO 1996 (2) SA 751 (CC), 1996 (4) BCLR 449 (CC) at para 105 the

court specifically endorsed an interpretation of IC s 22 which emphasized its linkage to the separation of powers:‘[The purpose of s 22] is to emphasise and protect generally, but also for the specific protection of the individual,the separation of powers, particularly the separation of the judiciary from the other arms of the state. Section 22achieves this by ensuring that the courts and other fora which settle justiciable disputes are independent andimpartial.’ If applied not to disputes between the courts and legislature but rather to the structuring of administrativebodies, this line of reasoning might be called a doctrine of internal separation of powers.

6 One case has carefully considered such a claim, but found the statutory structure to be independent and rejectedthe constitutional attack sourced in the right of access to courts. Financial Services Board v Pepkor Pension Fund1999 (1) SA 167 (C) (upholding s 26(1)(b) of the Financial Services Board Act 97 of 1990). For a statement of thecommon-law doctrine of institutional bias, see Council of Review, SADF, & others v Mönnig & others 1992 (3) SA482 (A) at 491. Note that the Constitutional Court has extensively discussed the issue of judicial independence inthe context of the right to freedom and security of the person. See De Lange v Smuts NO & others 1998 (3) SA 785(CC), 1998 (7) BCLR 779 (CC).



25 Section 34 may also be a pivotal section for the application of many of the rights inChapter 2 to other provisions of the Constitution. For instance, s 38 could be read to implythat fundamental rights remedies are only available for violations of the rights containedin Chapter 2. However, a violation of a provision of the interim Constitution outside ofChapter 2 (such as a language right or even a provision of the distribution of powers scheme)may call for a fundamental rights remedy. One interpretation of s 34 would grant the personwhose non-Chapter 2 right was violated a Chapter 2 remedy as part of that person’s s 34 rightof access to court.1

1 See above, Klaaren ‘Judicial Remedies’ § 9.6.



Documents

25 Administrative Justice - Centre for Human Rights · on the common-law grounds of review will probably be even greater than the direct influence.1 Furthermore, the right of administrative