Administrative law – LAWS4063A
Topic 6: Procedural fairness and procedural fairness grounds of review
Prescribed readings:
• Quinot (2020): Chapter 7 (171-197)
• Duncan v Minister of Environmental Affairs and Tourism (2/2009) [2009] ZASCA 168;
[2010] 2 All SA 462 (SCA) ; 2010 (6) SA 374 (SCA) (1 December 2009) (25 paras)
• Walele v City of Cape Town (supra), especially paras 27-45
• Joseph v City of Johannesburg (supra), especially paras 31-47
• Administrator of Transvaal and Others v Traub and Others (4/88) [1989] ZASCA 90;
[1989] 4 All SA 924 (AD); 1989 (4) SA 731 (24 August 1989)
• National Director of Public Prosecutions v Phillips and Others 2002 (4) SA 60 (W).
• Police and Prisons Civil Rights Union v South African Correctional Services Workers'
Union and Others (CCT152/17) [2018] ZACC 24; [2018] 11 BLLR 1035 (CC)
• President of the Republic of South Africa v South African Rugby Football Union (supra)
(bias)
• Esau and Others v Minister of Co-Operative Governance and Traditional Affairs and
Others (611/2020) [2021] ZASCA 9 (28 January 2021) (lockdown regulations
procedurally fair)
• Sokhela and Others v. MEC for Agriculture and Environmental Affairs (KwaZulu-Natal)
and Others 2010 (5) SA 574 (KZP)
• Walele v City of Cape Town 2008 (6) SA 129 (CC) para 35
• Zondi v MEC for Traditional and Local Government Affairs (CCT 73/03) [2004] ZACC 19;
2005 (3) SA 589 (CC)
Learning Outcomes:
• Explain the general principle of procedural fairness as it was understood and applied
at common law.
• Explain the protection of procedural fairness in the Constitution and PAJA.
• Identify and explain the content and meaning of the two essential elements of
procedural fairness, the right to be heard and the rule against bias.
• Explain the doctrine of legitimate expectations and its application as articulated in case
law.
• Explain the requirements of procedural fairness in respect of administrative action
impacting on the rights of a person.
• Explain the requirements of procedural fairness in respect of administrative action
impacting on the public.
• Explain the test for bias as provided in PAJA.
Page 1 of 17
,7.1 Introduction
➢ CL before 1994 → decisions considered fair if complied w. ‘rules of natural justice’
o Audi alteram partem (hear the other side) and nemo judex in sua causa esse debet
(no one should be a judge in his or her own cause/ interest)
➢ Rules of natural justice largely resemble what is expected of decisions in other contexts
➢ Essentially ensure that people adversely affected by decisions would know abt the
decision and be able to participate in the decision
Involves prior notice of decision and opportunity to state their case and influence
outcome of decision to unbiased decision-maker
➢ Example: Heatherdale Farms case – Colman J held before Deputy Minister could
confiscate poultry or eggs of companies engaged in large-scale chicken breeding,
companies had to be given adequate opportunity to make representations to him
o Because companies did not get such an opportunity, Dep Min conduct found to be
inconsistent w. maxim of audi alteram partem and order confiscating products
was set aside
➢ Example: Barnard v Jockey Club of SA case – decision of domestic tribunal of the Jockey
Club of SA set aside by court because tribunal member was partner of firm of attorneys
representing the club
o He had a financial interest in the proceedings which created a suspicion in the mind
of the reasonable person that he was not impartial – likelihood of bias
➢ Requirements of fairness demanded by rules of natural justice remain in place post-
apartheid → protected by right to just AA in s33 of C and PAJA
➢ Have been supplemented, esp regarding AA affecting the public (s4 PAJA)
➢ Requirements of fairness applied more generously now than under CL
o Under CL, rules of procedural fairness (PF) applied in restrictive manner w. reliance
on classification of functions
o Rule against bias was applied to judicial or quasi-judicial contexts but no other
admin conduct (legislative or purely admin)
o Audi alteram partem applied mainly to cases where someone was deprived of a
right (no ‘mere applicants’) and only to judicial or quasi-judicial conduct (other
than where legislation demanded principle be applied)
➢ Now, under C and PAJA (s3&4)→ requirements of fairness apply to all AA
Sometimes also to exercises of PP that are not AA, ito the principle of legality
➢ PF very NB to values underpinning C and to participatory democracy
➢ Problem w. PF stds is time and resources required to uphold them
Esp reg decisions impacting large groups of people, not difficult to imagine will be
burdensome for admin officials to give prior notice of intended decision, listen to and
consider representations, then give notice of the decision taken and notice of
opportunities to appeal every time they take a decision
჻ As such, what fairness demands will depend on the circumstances of each case
Page 2 of 17
, 7.2 Procedural fairness in the constitutional era
➢ Where exercise of PP amounts to AA – s33 provides the power must be PF
➢ S3 &4 of PAJA give detailed content to what PF entails in AA
➢ Where empowering legislation imposes specific PF stds, but they fall short of the stds
demanded by PAJA → empowering legislation must be read w. PAJA
➢ When AA is taken in manner that does not comply w. stds imposed by s3 or 4, or if it
falls short of rule against bias → action reviewable ito s6(2) of PAJA & could be set
aside as invalid ito s8 of PAJA
S6(2) – power of courts to judicially review AA that was procedurally unfair (ito
s6(2)(c)) or that was biased or reasonably suspected of bias (ito s6(2)(a)(iii))
7.3 Procedural fairness under PAJA
7.3.1 Section 3 of PAJA: Procedural fairness in respect of decisions that affect individuals
S3 of PAJA → decisions have a specific impact and affect a person, rather than the
public at large
S3(2)(b) of PAJA – provides that for AA to be PF, it must comply w. specific procedural
requirements:
- Adequate notice of proposed AA
- Reasonable opportunity to make representations
- Clear statement of AA taken
- Adequate notice of any review or internal appeal
- Adequate notice of right to request reasons
S3(3) – in some situations more demanding procedures may be required iro AA that
affects a person, such as:
- Opportunity for affected person to obtain assistance, and (in serious or complex
cases) legal representation, and
- Opportunity for affected person to present and dispute info and arguments, incl in
person
7.3.1.1 When does section 3 apply?
▪ S3(1) – procedural fairness requirements apply when the AA at issue:
1. ‘affects any person’
2. has a ‘material and adverse affect’, and
3. affects ‘rights or legitimate expectations’
▪ NB to understand → substantive values and factors that inform the need for admin
justice in a particular case ought to det whether s3 applies, rather than highly technical
and abstract conceptual analyses of terms such as ‘legal effect’ and ‘rights’
Page 3 of 17
Topic 6: Procedural fairness and procedural fairness grounds of review
Prescribed readings:
• Quinot (2020): Chapter 7 (171-197)
• Duncan v Minister of Environmental Affairs and Tourism (2/2009) [2009] ZASCA 168;
[2010] 2 All SA 462 (SCA) ; 2010 (6) SA 374 (SCA) (1 December 2009) (25 paras)
• Walele v City of Cape Town (supra), especially paras 27-45
• Joseph v City of Johannesburg (supra), especially paras 31-47
• Administrator of Transvaal and Others v Traub and Others (4/88) [1989] ZASCA 90;
[1989] 4 All SA 924 (AD); 1989 (4) SA 731 (24 August 1989)
• National Director of Public Prosecutions v Phillips and Others 2002 (4) SA 60 (W).
• Police and Prisons Civil Rights Union v South African Correctional Services Workers'
Union and Others (CCT152/17) [2018] ZACC 24; [2018] 11 BLLR 1035 (CC)
• President of the Republic of South Africa v South African Rugby Football Union (supra)
(bias)
• Esau and Others v Minister of Co-Operative Governance and Traditional Affairs and
Others (611/2020) [2021] ZASCA 9 (28 January 2021) (lockdown regulations
procedurally fair)
• Sokhela and Others v. MEC for Agriculture and Environmental Affairs (KwaZulu-Natal)
and Others 2010 (5) SA 574 (KZP)
• Walele v City of Cape Town 2008 (6) SA 129 (CC) para 35
• Zondi v MEC for Traditional and Local Government Affairs (CCT 73/03) [2004] ZACC 19;
2005 (3) SA 589 (CC)
Learning Outcomes:
• Explain the general principle of procedural fairness as it was understood and applied
at common law.
• Explain the protection of procedural fairness in the Constitution and PAJA.
• Identify and explain the content and meaning of the two essential elements of
procedural fairness, the right to be heard and the rule against bias.
• Explain the doctrine of legitimate expectations and its application as articulated in case
law.
• Explain the requirements of procedural fairness in respect of administrative action
impacting on the rights of a person.
• Explain the requirements of procedural fairness in respect of administrative action
impacting on the public.
• Explain the test for bias as provided in PAJA.
Page 1 of 17
,7.1 Introduction
➢ CL before 1994 → decisions considered fair if complied w. ‘rules of natural justice’
o Audi alteram partem (hear the other side) and nemo judex in sua causa esse debet
(no one should be a judge in his or her own cause/ interest)
➢ Rules of natural justice largely resemble what is expected of decisions in other contexts
➢ Essentially ensure that people adversely affected by decisions would know abt the
decision and be able to participate in the decision
Involves prior notice of decision and opportunity to state their case and influence
outcome of decision to unbiased decision-maker
➢ Example: Heatherdale Farms case – Colman J held before Deputy Minister could
confiscate poultry or eggs of companies engaged in large-scale chicken breeding,
companies had to be given adequate opportunity to make representations to him
o Because companies did not get such an opportunity, Dep Min conduct found to be
inconsistent w. maxim of audi alteram partem and order confiscating products
was set aside
➢ Example: Barnard v Jockey Club of SA case – decision of domestic tribunal of the Jockey
Club of SA set aside by court because tribunal member was partner of firm of attorneys
representing the club
o He had a financial interest in the proceedings which created a suspicion in the mind
of the reasonable person that he was not impartial – likelihood of bias
➢ Requirements of fairness demanded by rules of natural justice remain in place post-
apartheid → protected by right to just AA in s33 of C and PAJA
➢ Have been supplemented, esp regarding AA affecting the public (s4 PAJA)
➢ Requirements of fairness applied more generously now than under CL
o Under CL, rules of procedural fairness (PF) applied in restrictive manner w. reliance
on classification of functions
o Rule against bias was applied to judicial or quasi-judicial contexts but no other
admin conduct (legislative or purely admin)
o Audi alteram partem applied mainly to cases where someone was deprived of a
right (no ‘mere applicants’) and only to judicial or quasi-judicial conduct (other
than where legislation demanded principle be applied)
➢ Now, under C and PAJA (s3&4)→ requirements of fairness apply to all AA
Sometimes also to exercises of PP that are not AA, ito the principle of legality
➢ PF very NB to values underpinning C and to participatory democracy
➢ Problem w. PF stds is time and resources required to uphold them
Esp reg decisions impacting large groups of people, not difficult to imagine will be
burdensome for admin officials to give prior notice of intended decision, listen to and
consider representations, then give notice of the decision taken and notice of
opportunities to appeal every time they take a decision
჻ As such, what fairness demands will depend on the circumstances of each case
Page 2 of 17
, 7.2 Procedural fairness in the constitutional era
➢ Where exercise of PP amounts to AA – s33 provides the power must be PF
➢ S3 &4 of PAJA give detailed content to what PF entails in AA
➢ Where empowering legislation imposes specific PF stds, but they fall short of the stds
demanded by PAJA → empowering legislation must be read w. PAJA
➢ When AA is taken in manner that does not comply w. stds imposed by s3 or 4, or if it
falls short of rule against bias → action reviewable ito s6(2) of PAJA & could be set
aside as invalid ito s8 of PAJA
S6(2) – power of courts to judicially review AA that was procedurally unfair (ito
s6(2)(c)) or that was biased or reasonably suspected of bias (ito s6(2)(a)(iii))
7.3 Procedural fairness under PAJA
7.3.1 Section 3 of PAJA: Procedural fairness in respect of decisions that affect individuals
S3 of PAJA → decisions have a specific impact and affect a person, rather than the
public at large
S3(2)(b) of PAJA – provides that for AA to be PF, it must comply w. specific procedural
requirements:
- Adequate notice of proposed AA
- Reasonable opportunity to make representations
- Clear statement of AA taken
- Adequate notice of any review or internal appeal
- Adequate notice of right to request reasons
S3(3) – in some situations more demanding procedures may be required iro AA that
affects a person, such as:
- Opportunity for affected person to obtain assistance, and (in serious or complex
cases) legal representation, and
- Opportunity for affected person to present and dispute info and arguments, incl in
person
7.3.1.1 When does section 3 apply?
▪ S3(1) – procedural fairness requirements apply when the AA at issue:
1. ‘affects any person’
2. has a ‘material and adverse affect’, and
3. affects ‘rights or legitimate expectations’
▪ NB to understand → substantive values and factors that inform the need for admin
justice in a particular case ought to det whether s3 applies, rather than highly technical
and abstract conceptual analyses of terms such as ‘legal effect’ and ‘rights’
Page 3 of 17
