NELSON R.

MANDELA SCHOOL OF LAW

Administrative Law Group Assignment

(Module Code: LEA 223E)

Lecturer: Mr A. Phela
Due Date: 1 September 2022

Group Members:
Name & Surname Student Number Role
1. Nyameka Peko 202124248 Group Leader
2. Bandile Khayise 202109042 Deputy Group Leader
3. Ambesiwe Mzini 202114026 Member
4. Lindelwa Lulutho Dloto 202124250 Member
5. Siyahluma Gunya 202103246 Member

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TABLE OF CONTENTS

Introduction ……………………………………………………………………………………2

Issues to be addressed in this case ………………………………………………………2

Rule of law applicable in the case …………………………………………………………2

Application of the rule of law ……………………………………………………………….3

Was the decision taken an administrative action? ……………………………..4
Is the applicant entitled to the right to reasons? ………………………………..5

Conclusion …………………………..………………………………………………………..5

List of References …………………………………………………………………………….7

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Introduction
One of the essential needs of administrative justice and a crucial element of procedural
fairness is the provision of justifications for administrative actions. In South African law, there
was no general requirement to provide justification for administrative actions prior to 1994. This
legal void was closed by section 33(2) of the Constitution of the Republic of South Africa, 1996
(the Constitution), and was given effect by enactment of section 5 of the Promotion of
Administrative Justice Act 3 of 2000 (PAJA). Without knowing the reasoning behind the
decision, the person who will be impacted may not be able to determine whether it is subject to
review and may so be denied legal protection. However, it goes a step farther, giving reasons
not only satisfies the individual that their concern has been taken into consideration, but also
encourages effective administrative functioning because decision-makers are forced to
carefully and accurately weigh all relevant factors because they are aware that they may be
asked to explain their choices.

The case under discussion is Kiva v Minister of Correctional Services 2007 1 BLLR 86 (E),
which concerns a doctrine of the right to reasons for administrative action. The right to be given
reasons regarding an administrative action that materially also adversely affects a person is
subject to be reviewed as stipulated by PAJA section 5. In this case, the applicant requires that
in the course of not getting the position he applied for, he must be furnished with the reason of
the decision reached by the department of not promoting him when he has applied for the
promotional position1. Let us address whether the applicant is indeed entitled to be furnished
with reasons by the department for their action and thereafter, what remedies the applicant can
get under the provisions of section 5 of PAJA.

Issues to be addressed in this case

The first issue that was addressed here was whether the decision amounted to administrative
action? Secondly, was the applicant entitled to the right to reasons? 2

Rule of law applicable in the case

In the present case, for the court to reach the final conclusion has applied the following
authorities of the relevant law, namely:
It is stipulated in section 33(1) of the Constitution that “Each and every person has the right to
reasonable, procedurally fair and lawful administrative action.” If the administrative action has
adversely violated any person’s rights, that person must be provided with written explanations
or reasons as stated in section 33(2) of the Constitution.

As stipulated in PAJA, section 5 that “(1) Any person whose rights have been materially and
negatively impacted by administrative action and who hasn't received written justification for
the action may, within 90 days of the date on which they become aware of the action or could
1
2007 1 BLLR 86 (E)
2
2007 1 BLLR 86 (E) par 24
2
have reasonably been expected to be aware of it, request that the administrator in question to
provide written justification for the action. (2) Sufficient reasons must be given in writing by the
administrator within 90 days of the request.

Court further explained the regulations in Section 7(2)(a) of the PAJA, this caters for internal
remedies as provided in line with Section 7(2)(b), that the internal remedies must first be
exhausted before initiating judicial review proceedings, if not, the person should be directed to do
so by the court or tribunal.
According to section 3(5)(g) of the Correctional Services Act 111 of 1998, power to “employ,
promote, transfer, remunerate, dismiss and discipline correctional officers in line with the Act,
Public Service Act, and Labour Relations Act is vested on the second respondent”.
The court explained the application and relevance of sections 75(1)(a); 74 and 25 of the
Promotion of Access to Information Act 2 of 2000. In arriving at its judgement, the court made
reference to the following cases: Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs
2004 7 BCLR 687 (CC) para 25; Grey’s Marine Hout Bay (Pty) Ltd v Minister of Public Works
and 2005 6 SA 313 (SCA) para 22 and Minister of Health and another NO v New Clicks South
Africa (Pty) Ltd (Treatment Action Campaign and another as Amici Curiae) 2006 2 SA 311 (CC)
para 118; Police and Prisons Civil Rights Union v Minister of Correctional Services 2006 2 All SA
175 (E).

Application of rule of law

Administration law system is established on section 33 of the Constitution and made alive
through PAJA. This application's current focus is on requiring the respondents to give the
applicant the justifications regarding the decision which had a negative impact on him. Looking
at how the court utilised section 5(1) of the PAJA, as explained in the previous paragraph.
Before addressing the main issue in this case, the starting point would be to determine if the
decision in question qualifies as administrative action or not. If it does not qualify to be  an
administrative action, the applicant's request is inapplicable; when it does, the petitioner is
eligible for reasons as provided under Section 5 of the PAJA 3.

Was the decision taken an administrative action?

The first thing that the court addressed here was to determine whether the decision taken by
the respondent indeed constitutes an administrative action or not. Section 1 of the PAJA
explains the an administrative action, however, the court used the definition as provided by the
precedence in Grey’s Marine Hout Bay (PTY) Ltd v Minister of Public Works. The court
summarized it as “any administrative decision made in accordance with an empowering
provision made by a state organ while exercising an authority conferred by the Constitution or
a provincial constitution, while exercising a public power or performing a public function under
any legislation, or [taken by] a natural or legal person other than a state organ when exercising

3
2007 1 BLLR 86 (E)
3
a public power or performing a public function in accordance with an authorizing provision, that
is detrimental to any individual's rights and results in an immediate exterior legal impact 4”.

Here, the decision has been taken (not to promote the applicant); by the State organ
(department of correctional services); which was exercising the public power as empowered by
the provisions of section 3(5)(g) of the Correctional Services Act, which provides a respondent
with the authority to ‘employ, promote, compensate, transfer, dismiss or discipline correctional
officers in accord with this Act, the Public Service Act, and the Labour Relations Act. Similar
facts were also referred to by the court in Police and Prisons Civil Rights Union v Minister of
Correctional Services. Therefore, if the decision not to advance the applicant was found to be
invalid, it was unquestionably possible that it would upset his fundamental human rights to
equality and reasonable labour practices5.

The other aspect which is vital is that the decision taken had a direct and adverse impact on
the person. In that applicant was not remunerated at a higher rate; not granted benefits at the
director level as he remained in the same position for a while. Whereas his counterparts were
moving higher in the employment structure, therefore this was an administrative action 6. There
are similar cases that dealt with an administrative action, such as, King William’s Town
Transitional Local Council v Border Alliance Taxi Association (BATA) 2000 3 BCLR 295 (E)
where it was held that, the closing of a taxi rank by the applicant amounted to an administrative
action that was in line with the requirements of section 33. However, the interests of BATA
members would be adversely affected as that means a loss of income from this taxi rank. Now
it is clear beyond reasonable doubt that the decision amounted to administrative action, next
question that must be clear would be whether this applicant is entitled to the right to be given
reasons for this particular action.

Is the applicant entitled to the right to reason?

For this right to be activated, the decision taken should have an element that affects him,
directly, materially and significantly impact on the person. Firstly, what is the reason or what is
the right to reason and its purpose need to be determined. Some authors argue that reasons
are the arguments used to support a chosen decision. These reasons must explain how and
why the findings were made, based on the evidence, and explain the reasoning process
whereby these findings were evaluated in such a way as to reach the conclusions reflected in
the decision7.

4
2007 1 BLLR 86 (E) para 21-24
5
2007 1 BLLR 86 (E) para 28
6
2007 1 BLLR 86 (E) para 28
7
Quinot “Administrative Justice in South Africa An Introduction” (2010) 193
4
In determining what the reason or what exactly constitutes a reason in Kiva, the court looked at
what the respondent claimed to be reasons given to the applicant. It regarded the
correspondence which was given to the applicant, the first letter just informed the applicant
about unsuccessful application without specific reasons why he was unsuccessful and the
second letter was a response to the grievance from the applicant, and contained nothing like
an explanation for him not to be promoted. It is, however, clear that the documents or letters
that were given to the applicant, did not constitute any reason for the decision not promoting
the applicant8, as they contained nothing related to the literal meaning of a reason.
Furthermore, what are the purposes of the right to reasons, the court addressed this by
emphasizing that supplying reasons assists in that it acts as a precaution against arbitrariness
as well as an instrument for accountability, fairness, openness, transparency, and proper
administrative conduct9. Also, it encourages fairness and proper administrative conduct
because review processes may be initiated for improper or no reason 10. Therefore, not furnishing
the applicant with reasons surely does not promote fairness openness and definitely not
accountability and actually will lead to irrational and arbitrary administrative actions.

When looking at the respondent’s assertion, where they claimed that the applicant did not
exhaust internal remedies, the court nullified the application of section 5 of PAJA to exhaust
the internal remedies before appealing to the other court or tribunal. So the court explained that
there was a misconception of the provision of section 7(2)(b) of PAJA 11, and section 74 of
Promotion of Access to information Act which deals with an appeal focused on obtaining the
information which is in line with s 32(1) of the Constitution, and the enforcement of the
fundamental right to just administrative action embedded in section 33 of the Constitution and
all that is to the provisions set out in section 5 of PAJA which is obtaining reasons for an
administrative action12. So, the court did not regard section 74 of PAIA as an internal remedy
for a refusal to furnish reasons for adverse administrative action in terms of s 5 of the PAJA, so
it was irrelevant here.

By the look of things, there are no exceptions that would qualify the respondent not to furnish
the applicant with reasons. Neither, section 5(4)(a) of the PAJA would exempt the respondent
to furnish reasons to the applicant for their decision. This section allows the administrator to
deviate from the requirement to provide appropriate justification if it is justifiable and
reasonable not to provide the reason under the given circumstances, and an administrator
must promptly notify the person making the request of such deviance. Furthermore, the
respondent was ordered to furnish the reasons to the applicant within 30 days 13.
8
2007 1 BLLR 86 para 39 - 40
9
Mphahlele v First National Bank of SA Ltd 26
10
Currie and De Waal “Just administrative action the Bill of Rights Handbook” (2005)
11
Section 7(2)(b) of the PAJA has been misconceived by the respondent, in that the applicant cannot be denied access to
court
12
2007 1 BLLR 86 (E) para 14
13
Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and others 2004 4 SA 490 (CC); para 43
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CONCLUSION
In conclusion, the applicant's rights were negatively impacted by the administrative decision,
he was entitled to written and detailed reasons as embedded in section 33(2) of the
Constitution. This provision serves as a deterrent to any administrative decisions that are
irrational or arbitrary. Therefore, the applicant has the right to reasons.

Furthermore, according to section 5 of the PAJA, which mandates that the provision of
explanations to anybody whose rights have been materially and negatively impacted and who
has asked for them. If no justification is given, it is assumed that the choice was made
arbitrarily. A court may evaluate an action if it is not reasonably related to the reasons
presented, according to this Act. The applicant would be in a very difficult position to contest
the action if there are no justifications. Finding a foundation for the appeal or review would also
be difficult14. Similarly in Vumazonke v MEC for Social Development, Eastern Cape 2005 6 SA
229 (SE) here the applicants were given reason for the decision and informed they can institute
review for the decision.

14
Section 5 of the PAJA
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