Part 3 – PROCEDURAL FAIRNESS

(ONLY IN EXAM – NOT TEST OR ASSIGNMENT)

 Constitutional law in context textbook - Administrative justice section –

summaries of cases

Importance of the constitutionalisation of right to procedural fairness

- If the decision-maker hears all the affected parties, they are more likely to
make a more accurate and proper decision. If they leave a party out of the
process and don’t have all the relevant information before them – then it is
probable that they will reach an erroneous decision.
- Acting procedurally correctly is to make proper decisions, as per what the law
describes is appropriate (in accordance with PAJA and the enabling
legislation)
- Procedural fairness ensures that before reaching this decision, the decision-
maker is acting in a way that promotes PAJA.
- It is not a mere technical rule
Section 3: Procedurally fair administrative action affecting any person
(1) Administrative action which materially and adversely affects the rights or
legitimate expectations of any person must be procedurally fair.
- The jurisdictional facts you have to satisfy in order to claim the right, is that it
has to be administrative action; it must materially and adversely affect; either
rights or legitimate expectations. (JOSEPH CASE is the leading case here)

Joseph v City of Johannesburg 2010 (3) BCLR 212 (CC)***

 Contract was that City power would provide electricity to the building
(owned by Nel) and tenants.
 Contractual relationship alone with Nel, the landlord of a building.
 Tenants paid Nel for the electricity. Nel does not pay City power, to which
they terminate the supply of electricity to the tenants.
 Is there any obligation on City power to treat the tenants procedurally fairly
before they terminate their electricity supply?

 The tenants said that they have a right to be treated procedurally fairly by
City Power and should have given them notice before termination of
electricity supply.
 City power argued that they were only contractually obliged to Nel, and
are therefore obliged to treat Nel fairly. No obligation to their respect the
tenants’ rights.

 The main argument of City Power:

 The tenants could point out no right of theirs, in so far as applied to
Nel - that was materially and adversely affected by their decision to
terminate the electricity supply.
 The tenants have failed to prove the requirements of S 3 (1) of
PAJA. They haven’t shown that this is admin action (that their rights
were material and adversely affected)
  Because they haven’t proved the jurisdictional facts in
section 3(1) city power argued that they weren’t obliged to
treat them procedurally fairly
 S3(1) read with the definition of admin action in PAJA

 Joseph/ the applicants made the following arguments:

(NOT THE COURT’S DECISION)
 Firstly, based on the Jafta case – where they sold the lady’s house
to offset debt – court held that the right to access to housing doesn’t
mean access to the physical structure but also the services that go
with it such as lights and water. Based on Jafta the applicants have
a right of access to housing, which includes electricity.
 Interfering with the negative aspect to the right of
housing. Therefore diminishing a person’s right to electricity.
 Secondly, if you deprive of electricity it violates their right to dignity.
 Thirdly, they sought to argue that there was an implied contract

 The tenants used constitutional principles, and use admin law principles to
build on it. In the judgement, before analyzing S 3 (1) of admin action, the
broader objectives of PAJA that we are meant to achieve in S33 are
considered – which is transparent, accountable and proper governance.
 PAJA is meant to prevent an abuse of power and is designed to make
sure that those exercising public power, do so properly – they are
accountable and the process is transparent/ proper. These are guiding
principles to interpret S 3 (1) and its jurisdictional facts.

 City Power relates that one of the requirements for the definition of admin
action, is that it must have a direct external legal effect.
 The admin action must impact upon you directly and immediately.
Court then says that in addition to this direct external legal effect – it
must also materially impact on upon the person.
  The court narrows the requirements in the definition of admin action
to allow more people access to procedural fairness. If the
requirements were wide – then you would have to satisfy those
broad requirements to facilitate access to procedural fairness.
Therefore if our objective is to have proper governance, those
requirements should be narrow and not broad. Therefore he reads
down the requirements.

 Key point in the judgement: What does the term rights mean?
o If the term “rights” is very narrowly defined, then the applicant may
struggle to prove that their rights are affected. Therefore using the
same principle, the judgement interpreted the rights broadly.

- He interpreted the requirements narrowly to facilitate access to procedural

fairness. He interpreted rights broadly, through the same objective, but the
exercise is different.

 Look at the definition of rights

o The court said that Municipalities in this country have a legal obligation
(a public law duty) to supply basic services to us. These include water,
electricity, waste removal etc. that obligation is contained in the
constitution, as well as the Systems Act and the Structures Act.
o Central mandate of local government is to improve the quality of life for
its residents – there is a public law duty based on the constitution and
on statute that local government must provide core services to the
residents.
o This creates a legal entitlement on the residents to receive these
services. ***
o If the residents can demonstrate that they have a legal entitlement to
the services, which is based on a public law duty to supply the services
– which comes from ether the constitution or then the courts will find
that a failure to provide the services amounts to an infringement of the
rights.
 Cannot give every person who has not paid their water bill a hearing before
deciding to terminate electricity supply. Become inundated and impossible to
administer the municipality. Court must not impose something on them that
they will not be able to carry out.

- Judgement held that this may be a problem. Having regard for the need to
effect effective administration and to respect the rights to procedural fairness
of the applicants – an appropriate way of proceeding would be to give the
applicants pre-termination notice of 14 days.

- Tenants failed to show that there is admin action in this case, and that their
rights had been materially and adversely affected – because they failed to
show that this amounts to direct external legal effect.
- The court therefore narrows these requirements (reduces them) – they “bring
the fence down”.

- When looking at this main issue of rights – in order to carry out broader
objectives of PAJA, you can’t give rights a narrow interpretation (because
fewer people will be able to access procedural fairness) hence,, rights will be
given a broader interpretation.
(2)
(a) A fair administrative procedure depends on the circumstances of
each case.
(FLEXIBILITY/ FLEXIBILE CONCEPT) – meaning that there isn’t one set of
prescribed rules applies to all rules. There is therefore this entire possible
spectrum of action you can take.
Procedural fairness may simply require that you notify the parties of the
decision that you are taking; or consulting with the parties, inviting the parties to
make written representation; or oral submission or representations. There is
this continuum of things you have to satisfy, however one extreme in order to
be procedurally fair is a full trial-type hearing.

Issue of flexibility – Principles from the speech of Lord Mustil in Doody v

Secretary of State for the Home Department
Appeals
 Where an Act of Parliament confers an administrative power (gives some
of their discretion), there is a presumption that it will be exercised in a
manner which is fair in all circumstances.
 The standards of fairness are not immutable. They may change with the
passage of time, both in the general and in their application to decisions of
a particular type. Depends on the circumstances of the case.
 The principles of fairness are not applied by rote identically in every
situation. What fairness demands is dependent on the context of the
decision, and this is to be taken into account in all its aspects.
 An essential feature of the context is the statute which creates the
discretion, as regards both its language and the shape of the legal and
administrative system within which the decision is taken. The enabling act/
empowering act is important in determining the content of procedural
fairness.

 Fairness requires that a person who may be adversely affected by the

decision, will have a reasonable opportunity to make representations on
his own behalf either before the decision is taken with a view to producing
a favourable result, or after it is taken, with a view to procuring its
modification, or both.
  Since the person affected usually cannot make worthwhile representations
without knowing what factors may weigh against his interests, fairness will
very often require that he is informed of the gist of the case which he has
to answer. Must be given reasonable notice of the case they have to meet.
Where there is no enabling act, 14 working days is sufficient time – as
established in the Joseph case.

(b) In order to give effect to the right to procedurally fair administrative

action, an administrator, subject to subsection (4), must give a
person referred to in subsection (1) –
(i) – (v) are core/ compulsory requirements
(i) and (ii) – pre-decision requirements
(i) Adequate notice of the nature and purpose of the proposed
administrative action;
Notify the party adequately of the case they have to meet

Nkomo v Administrator Natal ( H 333)

- This case was an illustration of not giving people adequate time, where the
consequences were serious.
- They were given 48 hours which was insufficient time. The consequence was
that they lost a significant amount of money – which the court held was
inadequate.

(ii) A reasonable opportunity to make representations;

 (iii), (iv) and (v) - Post-decision requirements

(iii) a clear statement of the administrative action;

Du Preez v TRC.
- A general in the former SA defence force was told by the TRC that allegations
that he had participated in gross human rights violations will made against
him on a particular date.
- Du Preez challenged this, saying that the TRC process had to be procedurally
fair – they had to tell him in substance what the case had been. Simply saying
“gross human rights violations” was insufficient detail and cannot prepare in
response to that.
- The court held that you must inform the person with adequate detail of the
case that they have to meet so as to enable them to effectively prepare and
make representation.
- To give them adequate detail of the case they have to meet – which related to
a “clear statement of administrative action”. This requires the administrator to
simply say what decision has been reached – whether something has been
granted or not.
- In addition to this decision, the following must be included:
o They must indicate who took the decision
o When the decision was taken
o Under what legal authority the decision was made
o 2 requirements follow below

(iv) adequate notice of any right of review or internal appeal, where

applicable; and
Indicate to the person that they have the right to appeal a decision – the
steps they must follow

(v) adequate notice of the right to request reasons in terms of

section 5.
The right to request reasons for the decision within 90 days.
(3) In order to give effect to the right to procedurally fair administrative
action, an administrator may, in his or her or its discretion, also give a
person referred to in subsection (1) an opportunity to –
(a) obtain assistance and, in serious or complex cases, legal
representation;
(b) present and dispute information and arguments; and
(c) appear in person.

(a) - (c) are discretionary requirements - may be required to give the person a trial-
type hearing where something more is required of the administration. This the most
exacting type of hearing a person can get. A quasi-judicial hearing.
- Examination in chief (lead the evidence of the witness)
- Cross-examination (not restricted to issues in examination in chief)
- Re-examination (only re-examine on issues covered in cross-examination)
These trial type hearings arise at the appeal level.

Hamata v Peninsula Technikon (H379)

- Hamata student at PT wrote an article which had incorrect facts. University

charged him with misconduct – tarnishing reputation of University (brought it
into disrepute).
- Had disciplinary hearing. Couldn’t be legally represented but represented by
an academic or a fellow student.
- He was convicted and expelled. He subsequently challenged the decision on
the basis that he had a right to legal representation at a disciplinary hearing.
This is the minimum standard with which there must be compliance.

Core principles from Hamata:

 Absolute right to legal rep in criminal proceedings, but ITO admin
proceedings – the court reasoned that one does not have an automatic
right to legal representation. However, one has a right to have their
request for legal representation considered. This is the minimum standard,
where they must decide whether to grant legal representation - which is
 general administrative law. This is because statute may give you
automatic legal representation, which is specific administrative law.
 If presiding officer does not consider the request, it will be a violation of
section 3 (3) of PAJA.
 Factors that presiding officer has to take into account to allow legal
representation:
 What is the nature of the administrative action? (how complex is the
administrative action)
 What are the consequences for the applicant?
 Whether the other side is legally represented (if one side is being
represented then the other side should be represented)
 Assess the suitability of the alternatives being offered

(4)
(a) If it is reasonable and justifiable in the circumstances, an
administrator may depart from any of the (core/ discretionary)
requirements referred to in subsection (2).

(b) In determining whether a departure as contemplated in paragraph (a)

is reasonable and justifiable, an administrator must take into
account all relevant factors, including –
(i) The objects of the empowering provision;
The empowering provision/ enabling act
(ii) The nature and purpose of, and the need to take, the
administrative action;
(iii) The likely effect of the administrative action;
(iv) The urgency of taking the administrative action or the urgency
of the matter; and
(v) the need to promote an efficient administration and good
governance.

Incorporates the requirement of a limitation clause – fall back provision – you can
limit those requirements
- This is the law of general application that will allow you to limit the right.
(5) Where an administrator is empowered by any empowering provision to
follow a procedure which is fair but different from the provisions of
subsection (2), the administrator may act in accordance with that different
procedure.
In some circumstances, the statute itself (empowering statute) may give you more
rights; to which you can follow those provisions.

Multi-staged decision making. (H 396) ***

Multi-layered decision making is involved where a scenario of official “A” takes a

decision and then a second decision has to be made by another.
Have a hearing at every level of the decision. Give a decision on different levels /
multi-teared decisions.

 Save the Vaal case

*** reflect on facts of save the Vaal and whether it will be decided in the same
way for Buffalo City***

 Facts: Sasol Oil Company – wanted to mine on the surface / banks

of the Vaal River. Found rich vein of coal there. However, the
legislation(the enabling act) which allowed them to do this,
provided for two processes to be followed before mining could
begin in earnest:
 Section 9 phase: the enabling legislations envisaged an
initial application at the section 9 phase, for authorization to
commence exploratory action. Permission to look at thee
viability and suitability of extracting the coal
 Section 39 phase: possible to bypass S39 phase. Here,
there would be permission granted to commence mining but
before that happened, the applicants would have had to
submit an environmental management plan/ show
compliance with environmental laws – which was quite an
exacting process.
The applicants who were land owners on the Vaal River – argued for a hearing on
both of these phases. The respondent contended that the applicants were going to
have a full hearing at the section 39 phase. A full opportunity to make
representations here. Furthermore, it would delay process and frustrate effective
administration to give every hearing, at every phase, including the preliminary
phase. They did not give the applicants the hearing at the section 9 phase, and the
applicants challenged this.

A decision of the SCA – but is a pre-PAJA decision, and the judge reasoned as
follows:
 The section 9 phase triggers a chain of action/ events that could
result in the applicants rights being adversely affected (if mining
was allowed ITO s39)
 Without the s9 phase the other phase would not be triggered off.
 S9 phase could ultimately result in the approval of the
application and permission being granted to mine.
 This means that s9, whilst it is a preliminary decision, they
should have been given preliminary hearing at Section 9 phase.
 In s9 phase – you can invite people to make written
representations and therefore you don’t have to slow down the
process.
 The respondents had acted procedurally unfairly by not
providing for hearing at both phases.

 Buffalo City (BC)***

Emphasize the wording of s3 (1) when it talks about rights or a legitimate
expectation being adversely affected

 Facts: this case is post-PAJA

- BC municipality decided to expropriate the applicant’s land. The legislation
(allowing them to do this) made it clear that the way process works is that the
municipality takes a resolution to expropriate the land.
- They then send that resolution to the premier of the province.
- Took the view that they had the power to expropriate the land (approached
the applicant and said they would expropriate their land and gave them cash)
- It was pointed out to them that they could not do this because they did not
have the power to do so
- Decided to start process again and indicated to the applicant that they are
expropriating their land, and send it up to the premier so the expropriation
decision is waiting the approval of the premier.

- According to the court pages. The premier is going to invite all affected
parties to make representation. One of the consequences of Buffalo City,
taking the resolution is that the owners of the land cannot alienate the land.
- Effect of the resolution is that the status quo must be preserved.

- Before the premier makes the decision, the applicant brings this application to
set aside the resolution taken by BC on the basis that he has not been treated
procedurally fairly before the resolution was taken.

- This is a post-PAJA decision – where s3 relates that you must show that your
rights have been adversely affected.
- The only consequence of the resolution, was that you cannot alienate the
land.

- The judge in this case said:

o Assuming that before the premier makes the decision, he would give
the applicants a reasonable opportunity to make representations –
because once there is a decision to expropriate the land, their rights
will be affected.

- The question before the court was: should the applicant be given a hearing
before the premier takes the decision? Should Buffalo city be given a hearing
before the premier takes the decision (at that first resolution stage)?
o The court reasoned as follows:
  The effect or the only consequence of the resolution is that you
cannot alienation the land
 If you simply come to court and say you can’t alienate your land
and therefore must be given a hearing – you have failed to
demonstrate how your rights have been adversely affected.
 You have to demonstrate that as a consequence of the
resolution that you are unable to alienate your land, and
because you are unable to alienate your land this is the
prejudice you suffer.
 This is what they failed to do. They failed to show what the
practical effect of the prejudice that they were suffering
was.

 They had to demonstrate that because the resolution states that

one cannot alienate their land, they therefore suffered practical
prejudicial consequences to them.

*** Juxtapose the reasoning in Save the Vaal case with the Buffalo City case
- One material difference is that Buffalo City is post-PAJA
- Were these cases decided the same way?
o Save the Vaal discussed the trigger effect, and clearly the resolution
was a trigger factor in the BC case (because without the resolution, it
would not have gone to the next stage)
o However, the judge in Buffalo city said that you have to have to
demonstrate some practical consequences, as an applicant – because
s 3 (1) discusses rights or legitimate expectations being adversely
affected.
o One of the ways to reconcile that, is to make reference to Joseph.
 Joseph reduced/ narrowed some of the jurisdictional facts – but
also defined the concept of rights broadly.
 Don’t simply rely on trigger factor, but to show what the practical
consequences of what the trigger factor is on you property value
and how it is practically impacting on you.
  Greys Marine Hout Bay and others v Minister of Public Works and
Others 2005 (10 BCLR 931 (SCA)
o Companion case to buffalo city is the case of Greys Marine.
o Important ITO the meaning of admin action

- The government owns certain property in Hout Bay – vacant piece of land
- Alongside it are restaurants and various other activities
- One of the restaurant owners in the past, had a lease over that land – but
because they did not utilize it – it reverted to the state. None of the
neighbours had any rights to the land – but the nearby property owners used
the land as parking.
- The governments then decided to lease that land to a black empowerment
company of women - to allow them access to the industry in that area. Sign
lease agreement and they could put up structures to be used.

- The neighbours in this application argued that ITO of s 3 (1) of PAJA they
ought to be treated procedurally fairly and given the reasonable opportunity to
make representations before the lease agreement was entered into - because
they are the neighbours to this property.

- Before the applicants claimed that they were entitled to procedural fairness,
the applicants must demonstrate that either their rights or legitimate
expectations were adversely affected.

- In this case, did the neighbours have any rights to the property? The fact that
they were using it, was simply an interest they had – but they did not have
any rights to the property, nor a legitimate expectation.

- Therefore his argument was that because neither rights nor legitimate
expectation were adversely affected – there was no obligation to have a
hearing for procedural fairness.
 Earthlike Africa. (H 375)

- Eskom wanted to construct what they call a pebble-bed modular nuclear

reactor. Complicated issue as to whether the nuclear reactor should be built.
- The empowering legislation that governs this whole process is the
Environment Conservation Act. The process was meant to work in the
following way:
o The Director-General of the department would make a
recommendation to the minister as to whether the nuclear plant should
be built – to which the minister would make the final decision.
o Because of the complexity of the decision at the time, the DG of
minerals and energy (together with Eskom) sets up a panel of experts
to decide on whether this bill should go ahead.
o Eskom is therefore the applicant in this case and want to build this
reactor.
o This panel of experts include scientists and lawyers. They engage in
an extended/ extensive process of public engagement process –
where they hear representations from people as to whether or not to
make a recommendation that the nuclear reactor should be built.
o They then draft a report which they submit to the DG (who will look at it
and make a recommendation to the minister)

o The applicants of the case (environmental NGO called earthlike Africa)

make a request that they should be given an opportunity to make
representations on the draft report before it is send to the DG and on to
the minister.
o They base their argument on the fact that the draft report has new info
they want to comment on. This was refused by the DG and a final
report was prepared.
 o In summary, the consultants recommended that the report for Eskom’s
application to build the reactor be approved – without having heard
Earth like Africa.
o Earthlike Africa had a right to appeal to the minister, but rather than
waiting - they go to court, bringing an application to review the decision
without appealing the decision to the minister.
They bring the application to review the decision of the DG not to allow
them to make representations in respect of the draft report.

o Case NB for two reasons:

 Section 7 of PAJA – must exhaust domestic remedies before taking
a matter on review.
 Meaning they should have exhausted their appeal to the
minister before going to court - except in exceptional
circumstances.
 The decision to build a nuclear reactor is a profoundly
complex issue that will have implications for generations to
come; and there is already a host of appeals before the
minister and it will take time before they are exhausted; and
this review is also on a process ground – making it better for
that issue to be resolved before the minister hears the other
appeals. (Rather hear the review, than have the decision set
aside by the courts for not acting procedurally fairly)
 Hence, this judgement provides an indication of what
exceptional circumstances may be and that they exist.

- These are multi-layered decisions

o The DG taking a decision
o The minister taking a decision
o The applicants in this case were given an opportunity during the
consultation process, but they weren’t given an opportunity to
comment on the final draft.
- Eskom makes a plausible argument: A final draft has to contain information
which the parties have not seen before. The process would never end if you
continuously look for comment on every time something new is added – it
wouldn’t truly be a final draft.
- The court held that the applicants should have been given an opportunity by
the DG to comment on the final draft – because there was new information
and material in the final draft which the applicants had not had an opportunity
to comment on previously.

o The courts view was that given the seemliness of the decision being
taken, the DG should have been privy to as many views of affected
parties as possible.
o The court also pointed out that the panel of experts, while notionally
independent – were actually paid for by Eskom.

- On the issue of it frustrating the administration every time you have a final
draft - people should be allowed to make representations. The court used the
idea in Save the Vaal when they said what you can do is to allow written
representations within a defined period.

 Brenco case
- Revolved around the economic concept of dumping
o E.g. = costs 20 dollars for solar panels, but a company sells it for 10
dollars to kill the competition, and once they have left – you raise the
prices.
- We have processes in place to prevent dumping.

- There was a 3 stage process

o Doing investigations – making various assessments as to whether
dumping has occurred
 Merit investigation phase – assess the complaint (sometimes
competitors would complain for no reason)
  Provisional investigation phase detailed consultation with the
parties, they would interact and put the allegations to the
affected parties and get their response.
 Draft a report – allow the affected parties to comment on the
draft report.
o They reach a conclusion that dumping is in fact occurring and send or
make their recommendation to the minister of trade and industry to
approve the tax
o The minister of T&I would make a recommendation to the minister of
finance to make the final decision to impose the tax (add a tax on the
goods) in order to offset the dumping.

- The applicants in this case make the following arguments that they were
treated procedurally unfairly because:
o They weren’t given all the information that the government agency had
in its possession (were only given the essence of the allegations)
o It was during the second phase that the department was interacting
with the complainants without the applicants being present.
o They were given a comprehensive hearing in the first phase but not
given hearings before the minister of T&I / finance made the decision.

- The court rejected all these arguments

o Where the judge felt that a proper attempt had been made he is more
lenient. Because of the processes the court is going through – more
willing to give the benefit of the doubt

o The judge emphasizes that the content of the duty to act procedurally
fairly is a flexible one and it depends on the circumstances of the case
– it is not a means to find something wrong with the process
 Because they had a full hearing in the first phase and now it
must be replicated
o When you have an investigation as complex as this – you do not have
to give the people all the information all the information you have.
Simply have to give adequate information to enable them to mount a
response and adequately defend themselves.
 They had given them the key allegations that they had to meet,
with the information supporting those allegations.
 The court held that there was no obligation to give them all the
information

o Whilst they were conducting the investigation, they met with the
complainant in the absence of the persons accused
 The court distinguished between the various functions
performed by administrative agencies:
 Investigative functions - Investigate the complainant. The
court held that administrative agencies sometimes perform
investigative functions. The court grants a fair degree of
latitude to the department. Ensure that when carrying out
the investigation, that the department is not acting
vexatiously (with bad intent) or capriciously – this is the test
when carrying out investigative function.

E.g. complaint lodged with the HR commission is lodged

and legal department would investigate/ interview the
people and put info together.

 Adjudicative functions – demands a higher standard

because they are sitting as a quasi-court. Hear the entire
case

E.g.: the commissioners would sit in a hearing and hear the

case. Same department but different functions.
- Brenco judgement is important because the courts are not going to insist on a
hearing at every phase, depending on the nature of the hearing given at the
first phase.

Minister of Health and Another v New Clicks SA (PTY) LTD and Others
2006 (1) BCLR 1 (CC) para 147 to 185

- This case was dealt with pharmacies

- The private health sector providing health services to the majority of SAs
- There was a genuine attempt by the minister to try and resolve the high
dispensing cost. The minister tries to get a pricing policy that all chemists
would charge for dispensing.
- The process was that there would be a pricing committee to assist the
Minister and if they would make the recommendation about how much the
pharmacists should charge.

- In the judgement it is explained that even though there were two processes
where the pricing committee made a recommendation; and the minister
followed that recommendation – this was essentially considered one process.

- Because it was such a complicated process, with various experts sitting in the
pricing committee they were advising the minister. The minister would not
make a different decision because they worked on the decision.

- The way the pricing committee functioned, was that they had done their
investigation, decided on a pricing structure and published it as regulations for
comment from the industry. There is an overlap between section 3 and
section 4 in this regard. There were also hearings where parties wished to
appear before them and re-state their comments. They then proceeded to
have oral hearings.
 - The applicants in the case argued that at the oral hearings, not all the
members of the pricing committee were present. During the meeting people
went in and out - which they argued was contrary to the principles of
procedural fairness.

- The CC said that you have to distinguish between what they called legislative
administrative action, where you are making regulations and rules and
adjudicative administrative action. The pricing committee here, was not
involved in what is classified as the legislative administrative action (because
they were legislating rules - not deciding whether someone was guilty of
misconduct or whether someone should get a dispensation). Therefore the
court held that the requirements are different. If it is an adjudicative process
you need to have a full tribunal at the hearing.

- However, because this was a legislative process and people had made
written submissions – the court ruled on this point that the pricing committee
had complied with the principles of procedural fairness.

Mamabolo v Rustenberg Regional Local Council 2001 (1) SA 135 (SCA) ***

*** QUESTION ***Assume you are to advise on whether or not it is permissible to

have a hearing post a decision – criteria the court will consider?

- The Rustenberg municipality had a municipal manager, who was on a 6

month probation period – that was about to end.
- Suddenly the Rustenberg Municipal council panicked, unsure as to whether
they wanted to re-employ him. They had reservations about him.
- They were unsure about the legal position they were in, but made the
decision not to re-new the position, or appoint him now.
- However, at the end of the month – the full council would meet and he could
make his representations to the full council.
- With his lawyer at the council meeting, he doesn’t address important
concerns of the council and they affirm the decision. He challenges the
 decision on the basis that he was not given a hearing before the decision was
made.

- In the judgement, it is established that the normal rule is that there should be
a hearing before the decision is made. However in certain circumstances you
can depart from this. They were not intending to deprive him of a hearing, but
they felt the circumstances compelled them to act in this way. In departing
from this rule, the courts will have regard for the following factors:
o Was there sufficient time between the decision and its implementation
of it – to enable the applicant to make proper representation?
o Is there adequate evidence that the decision maker retained an open
mind – and was open to being persuaded to reversing the original
decision?
o Was there evidence that the hearing post the decision caused
prejudice to the applicant?

- On the facts of this case, the CH that it was clear that the council had an open
mind and there was no showing of the applicant suffering any prejudice
because of it. Therefore they felt that the hearing was fair.

SA Veterinary Council and Another v Veterinary Defence Association 2003 (7)

BCLR 697 (SCA).
- Man takes his dog to a vet and communicates to the vet throughout the day.
- There is evidence that the vet had been fobbing him off the entire day and
receives a message that the dog had died.

- He lodges a complaint with the investigative body that oversees vets

throughout the country – and the way this administrative agency functions is
by calling all the parties together, hear the evidence and the allegation that
the vet had acted negligently (and as a result the dog died).
- The vet chooses not to testify because there was no case to answer.
 - The disciplinary council take the view that the dog was in the custody of the
vet and was solely in a position to take the tribunal in his confidence and
explain what happened to the dog. They convicted him of misconduct.
- If he had testified, the council would have been able to draw adverse
inferences against the vet.

- When the case goes on review, it is established that you only need to
respond if the other side (the disciplinary agency) have established a prima
facie case (some sort of evidence of misconduct). If they do not provide any
evidence of misconduct there is no obligation on the vet to testify (don’t have
to convict himself)

- It was concluded that the vet was incorrectly convicted here.

The doctrine of legitimate expectation. (h 376)

- LE is something short of a right.

o You have the notion of a right and outside the right is the idea of a
legitimate expectation and beyond that are interests.

- Normally arises in one of two circumstances:

 Where there is a settled course of conduct by a public body (and there is a
reasonable expectation that such course of conduct will continue) –
government has acted in a particular way for a particular period of time
 Where there is an express promise made by government – expect
government to honour its promises

SA Veterinary Council and Another v Szymnski. 2003(4) BCLR 378 (SCA) ***

- Qualified vet from Poland who came to South Africa and if you qualify
elsewhere – you write a conversion exam. S claims that he was told by one of
the professors that he only needed to get 40% in the segments of the paper.
- An oral and written assessment – if he got 40% would pass. Only minimum.
- Could not let him practice with the mark he obtained.
- He argues in court that he had a legitimate expectation that if he attains 40% -
he would be admitted as a vet.
- The judgement held that for there to be a legitimate expectation, it must be
reasonable from an objective perspective, for the applicant to actually have
that expectation. The subjective belief of the applicant is inadequate.

- Justice Cameron lays down 4 criteria in deciding whether an expectation is

legitimate (comes from a case called Phillips)
o Whatever has induced the expectation, clear, unambiguous and devoid
of provocation? If there is doubt, you cannot take what suits you best.
o It must be objectively reasonable
o The expectation that you have must have been induced by something
that the decision-maker said or did
o It must be lawful and competent for the expectation to be made.
Walele v The City of Cape Town 2008 (11) BCLR 1067 (CC) ***

***QUESTION – does the applicant have a legitimate expectation with

these facts (Symnski and Walele)?

- Home-owner A applies to the city for planning permission to extend his home.
Granted.
- The applicant (home owner B) in this case brought an application against the
city alleging that they gave permission to someone to extend their home and
in the winter months, the home cast a shadow over his property. He stated
that he should have been granted a hearing before the city granted
permission for the extension.

- Attorneys find an instance where the city gave a person in home-owner B’s
position, an opportunity to make representations. On the basis of that, he
contends that a precedent was set – and failing to give him an opportunity
was a violation of 3(1) of his legitimate expectation.

- Judgement reaffirmed Symnski criteria

o Found that you can only have an expectation in the 2 circumstances.
 o The expectation must be objectively reasonable
o The subjective view of the applicant is irrelevant
- The facts of this case prove that one occurrence is not sufficient to amount to
a course of conduct. Therefore there was no legitimate expectation in this
case.
- The court found for the applicant on other grounds as well.

Procedural expectation (process) vs a substantive expectation

*** Explain what rights the applicant has if they can show that they had a legitimate
expectation

(Look at the issue of substantive or process/ procedural legitimate expectations) –

draw on English cases to make an argument for substantive legitimate expectations

o If you establish the criteria for a legitimate expectation – what do you

have an expectation to?
 You have an expectation to a process right not to the thing itself
o We have followed English law in this regard and incorporated this
doctrine of legitimate expectation into our law. In some circumstances,
they give the applicants the right not just to the process, but to the
entitlement itself and it seems that our law moves in a similar direction.

Ex Parte Hargeaves (H 383)

- The prison authorities in the UK had a policy, where they would get a
weekend pass for good behavior.
- These prisoners were convicted at the time the policy was in place – but
pressure on government to tighten up on crime, the policy became more
restrictive. More difficult to get the weekend pass.
- Prisoner brought this application saying he had a legitimate expectation to get
the weekend pass ITO the policy that was in place at the time he was
convicted. But the prisoner didn’t ask for a hearing, but rather a substantive
benefit (the pass or benefit of the policy)
o The courts rejected this, saying that the test is simply whether
government is acting rationally in launching new policy
o And there was sufficient evidence in the way government had acted.

Ex Parte Coughlan (H 383)

- Took English law into a new zone
- Severely disabled old women, moved from a hospital to a home.
- The government said that if they move her, she would access to the house or
care facility for the rest of her life. Wanted to close the house down
eventually.
- She had no right to the house, but only the promise she could rely on that
government made her.
- Government had made a promise to her, and so in these cases where you
establish a legitimate expectation – 3 obligations could arise:
o Government must act rationally
o Government must act procedurally fairly (give you an opportunity to be
heard before decision is made)
o In some circumstances the court may insist that government honors
the expectation – in circumstances where to do otherwise would
amount to an abuse of power (want logical justification from gov.)

Abdi and Nadarajah (H 384)

- N was a Sri Lankan refugee – refugee appeal tribunal
- Building on the Coughlan case
- They found against N
o The court would allow government to depart from a promise it has
made to someone if government can show that such departure is not
an abuse of power.
o The way in which you demonstrate this is to show that the decision not
to honour the promise is proportionate and in the public interest
o This involves the court weighing up the cost to the applicant of not
honoring the promise on the one hand, and the benefit to the public of
not honoring the promise

- Court concluded that it is only the public interest that is served by not
honoring the promise - outweighs the cost to the applicant – would it be
proportionate. In every other instance it would be an abuse of power.