PAJA

Promotion of Administrative Justice Act, 2000 (Act 3 of 2000)

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Procedural Fairness

This chapter explains:

the duties of administrators regarding procedural fairness (as required by the PAJA). It sets out:

• What "procedural fairness" means;
• When procedural fairness is required;
• The procedure to be followed for decisions affecting an individual; and
• The procedures required for decisions affecting the public in general.

As we've seen, the Constitution says administrative action must be lawful, reasonable and procedurally fair and that reasons must be given for administrative action that adversely affects rights. The PAJA gives more detail about how these duties are to be carried out by administrators.

What does 'procedural fairness' mean? (sections 3 and 4)

There are two parts to the idea of procedural fairness:

• The first part is that it is usually thought to be unfair for an administrator to make a decision that adversely affects someone without consulting them first. As we know, a judge is not allowed to convict someone of a crime unless they have been given an opportunity to tell their side of the story. Similarly, an administrator should not make a decision affecting someone without first hearing what they have to say. This idea is covered by the Latin phrase 'audi alteram partem' - which means one should hear what the person who will be affected by the decision has to say before deciding.
• The second part is that the decision-making process must be free from any real or apparent partiality, bias or prejudice. When making a decision, administrators must be seen by everyone to be making the decision fairly and impartially because they have or appear to have a private or personal interest in the matter. As is often said, "justice must both be done and must be seen to be done".

The two kinds of administrative action that require procedural fairness

An administrative action is basically a decision that affects the rights of members of the public. Such decisions could have:

• A particular impact. That is, they affect the rights of a particular individual - for example, a decision to refuse an application for a liquor license; OR
• A more general impact. That is, they affect the public - for example, a decision to increase the fee payable by all people applying for liquor licenses.

The PAJA deals with the procedures to be followed by an administrator before making decisions that affect both a particular person or people (section 3) and those that affect the public generally (section 4).

c. Decisions affecting any person (Section 3)

Section 3 of the PAJA deals with fair procedures when making decisions with a particular impact. There are some procedures that an administrator:

• Must follow before making a decision (mandatory procedures) ; and
• Some additional procedures that an administrator must consider following, but does not have to follow (discretionary procedures).

i. Mandatory procedures
There are five mandatory procedures that must be followed when performing an administrative action that has a particular impact on a person or persons. These are that the affected person must be given: Before the decision is taken:

• Adequate notice of the nature and purpose of the proposed administrative action;
• A reasonable opportunity to make representations;

After the decision is taken:

• A clear statement of the administrative action;
• Adequate notice of any right of review or internal appeal and
• Adequate notice of the right to request reasons in terms of s 5 of the PAJA.

We will now consider each of these in detail.

Adequate notice of the nature and purpose of the administrative action
"Adequate notice" means more than just informing a person that an administrative action is being proposed. The person must be given enough time to respond to the planned administrative action. The person also needs to know enough information about the proposed administrative action to be able to work out how to respond to the proposed action. They need to know the nature of the action (what is being proposed) and the purpose (why is the action being proposed).

A reasonable opportunity to make representations
The length of time a person should be given to make representations will be different in different circumstances. This should include an opportunity to raise objections, provide new information, or answer charges.

A "reasonable opportunity to make representations" can sometimes mean that a person affected by administrative action must be given a hearing where that person can make a verbal input. At other times, it may only mean that a person should be allowed to submit written representations to an administrator who must read and think about them.

A clear statement of the administrative action

An administrator must clearly state what the administrative action is that will be taken. A person affected by the administrative must understand what is likely to happen. This will assist the person affected to respond to the action. Using plain and straightforward language will help people to understand exactly what is being planned.

Adequate notice of any right to appeal or review

People affected by an administrative action can challenge that action if they think the action was wrong. This could be done by going to a higher level within the government,if that is possible.(Internal appeal) If the law does not provide for that, they can take the matter straightaway to court for judicial review.

An administrator must tell the person that they have these rights. The administrator must also inform the person about the details and procedures for exercising this right in advance - that is, without waiting for the person to ask. Information should be provided on at least the following:

• Where the appeal can be made;
• When it must be made; and
• How to make the appeal.

Adequate notice of a person's right to request reasons

People affected by the administrative action must be told that they have the right to request reasons for that action. The administrator must also pro-actively inform the person about the details and procedures to exercise this right - that is, without waiting for them to ask.

• Where the request can be made;
• When it must be made;
• How to request reasons; and
• Where to get assistance.

ii. Discretionary procedures

In addition to the mandatory procedures outlined above, to ensure fairness, every administrator must consider the following three additional procedures.

• Providing assistance in responding to the action. In serious or complex cases, this may mean that a person must be allowed to have legal representation.
• A person should be given an opportunity to present information and arguments in their favour and to challenge information and arguments against them.
• A person affected may need to be given the opportunity to appear in person before the administrator.

d. Decisions affecting the public (Section 4)

Section 4 of the PAJA says that the administrator has to decide which public procedures should be followed when administrative action has a general impact.

These public procedures are designed to involve the public in the decision, to provide accountability, and to gather information to help the administrator. They are:

• A public inquiry
• A notice and comment procedure; or
• Another fair procedure.

It is mandatory to make this decision, but the administrator has a discretion to choose which procedures to use.

i. Notice and comment
There are four basic steps to a notice and comment procedure:

1. The public must be given enough information about the proposed administrative action to allow them to make meaningful representations. That is, a notice must be given, which sets out enough information on the proposed action.
2. The administrator must call for comments on the proposed administrative action, and must allow enough time for those comments to be made.
3. The administrator must consider the comments received.
4. The administrator must decide whether or not to take the proposed administrative action, with or without changes.

ii. Public inquiry
There are four basic steps to a public inquiry procedure.

1. Before the inquiry, the administrator must decide whether to conduct the inquiry themselves or to appoint another person or a panel of people to conduct it.
2. The administrator must give notice of the inquiry. This must include details and information about the matter and issues being investigated in the public inquiry.
3. A public hearing must be held.
4. After the inquiry, the administrator must compile a written report and publish a summary of the report.

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