A 3 page monograph on Reasonableness

Section 33 of the Constitution provides that administrative action must be reasonable. What is reasonable
or unreasonable inevitably draws the court into the merits of the administrative decisions, threatening the
distinction between appeal and review. While the courts need to enjoy the power to examine the decisions
of administrative authorities in order to test for reasonableness, the challenge is that this power bears the
risk that the courts will overstep the mark by venturing into areas of decision-making which would be best
left to the executive arm of government.

No single meaning can be attributed to reasonableness. If legislation clearly authorises an unreasonable use
of administrative power, it will be in conflict with the just administrative clause in section 33 of the
Constitution, and it is highly unlikely to be judged reasonable and justifiable in an open and democratic
society in terms of section 36 of the Constitution. In administrative law the concept is now unco ntroversial
in that the first element promised by reasonable administrative action is rationality. This means in essence
that a decision must be supported by the evidence and information before the administrator as well as the
reasons given for it. It is a requirement of the rule of law that the exercise of public power by the executive
and other functionaries should not be arbitrary. Decisions must be rationally connected to the purpose for
which the power was given; otherwise they are in effect arbitrary and inconsistent with this requirement. It
follows that in order to pass constitutional scrutiny the exercise of public power by the executive and other
functionaries must, at least, comply with this requirement. If it does not, it falls short of the stan dards
demanded by our Constitution for such action.

In the case of Carephone (Pty) Ltd v Marcus NO 1999 3 SA 304 (LAC) the Labour Appeal Court put the
question in these terms:

Is there a rational objective basis justifying the conclusion made by the admini strative
decision-maker between the material properly available to him and the conclusion he or
she eventually arrived at?

The question whether a decision is rationally related to the purpose for which the power was given calls for
an objective enquiry. Otherwise a decision that, viewed objectively, is in fact irrational, might pass muster
simply because the person who took it mistakenly and in good faith believed it to be rational. In New Clicks,
for example, the court concluded that the President’s decisi on to bring an Act into operation in the
circumstances attempted could not be found to be objectively rational on any basis whatsoever. The fact
that the President mistakenly believed that it was appropriate to bring the Act into force, and acted in good
faith in doing so, did not put the matter beyond the reach of the Court’s powers of review. What the
Constitution requires, according to the Constitutional Court, is that public power vested in the executive
and other functionaries be exercised in an objectively rational manner.

Section 6(2) (f) (ii) of PAJA gives effect to the element of rationality by referring to action that is not
rationally connected to: (aa) the purpose for which it was taken; (bb) the purpose of the empowering
provision; (cc) the information before the administrator; or (dd) the reasons given for it by the
administrator. Rationality is not the only element of reasonableness. The second element is
proportionality. Proportionality may be defined as the notion that one ought not to use a sledgehammer to
crack a nut. Its purpose is to avoid an imbalance between the adverse and beneficial effects of an action
and to encourage the administrator to consider both the need for the action and the possible use of less
drastic or oppressive means to accomplish the desired end.

Section 6(2) (h) of PAJA deals with unreasonable effects but not specifically with proportionality. Section
6(2)(h) provides that a court may review an administrative action if the exercise of the power or the
performance of the function authorised by the empowering provision, is so unreasonable that no
reasonable person could have so exercised the power. This was confirmed in Bato Star by O’Regan J: “An
administrative decision will be reviewable if, in Lord Cooke’s words, it i s one that a reasonable decision-
maker could not reach.

Scrutiny of a decision based on reasonableness introduces a substantive ingredient into review proceedings
and, in judging a decision for reasonableness, it is often impossible to separate the merits from scrutiny.
However, the distinction between appeals and reviews, according to the Constitutional Court in Sidumo,
continues to be significant.

As mentioned earlier, section 33(1) of the Constitution provides that administrative action must be lawful,
reasonable and procedurally fair. The danger however arises that judges could utilise the power to declare
agency action unreasonable as a device to substitute their own policy preferences in place of the agency. It
must be conceded that within reason there is an area of legitimate diversity, a space within which various
reasonable choices may be made. It does not suggest that a decision is reasonable only when it is correct or
perfect in the court’s eyes.

In Government of the Republic of South Africa v Grootboom 2001 1 SA 46 (CC) the court was concerned with
the right of access to adequate housing and the meaning of reasonable legislative and other measures
required to be taken by the state. The court emphasised that when it evaluates the reasonableness of the
state’s measures, it would be inappropriate for it to enquire whether other, more desirable measures could
have been adopted, or whether public money could have been better spent. It recognised that there is a
wide range of possible options that could be adopted by the state to meet its obligations and that many of
these might meet the requirement of reasonableness. The case of Mazibuko v City of Johannesburg 2010
(4) SA 1 (CC) supports this view: the Constitutional Court held that the City of Johannesburg’s Free Basic
Water policy fell within the bounds of reasonableness and was therefore not in conflict with either section
27 of the Constitution or with the national legislation regulating water services. The Court confirmed,
during the course of its judgment, that “the concept of reasonableness places context at the centre of the
enquiry and permits an assessment of context to determine whether a government programme is indeed
reasonable.

Reasonableness and deference

The idea of judicial restraint or judicial deference is potentially relevant to any ground of review. In
Minister of Environmental Affairs and Tourism v Phambili Fisheries (Pty) Ltd 2003 6 SA 407 (SCA) the court
had to consider whether fishing quotas had been allocated in an arbitrary or capricious manner. The court
referred to its relative lack of expertise and information and pointed out that judicial deference is
particularly appropriate where the subject-matter of administrative action is very technical or of a kind in
which a court has no particular proficiency. The court held that it did not have the skills and access to
knowledge that was available to the administrator in the particular case. In Bato Star v Minister of
Environmental Affairs 2004 4 SA 490 (CC) the court pointed out that deference is not a matter of judicial
courtesy or etiquette, but emerges from the fundamental constitutional principle of the separation of
powers itself. It has no connotations of servility.

In Foodcorp (Pty) Ltd v Deputy Director-General, Department of Environment Affairs and Tourism 2006 2
SA 199 (C) the court held that the setting aside of an irrational, inexplicable and unreasonable allocation of
fishing rights did not breach the principle of separation of powers.
Reasonableness in labour law

The following case clearly demonstrates the applicability of the test of reasonableness in the field of labour
law, in the specific context of dismissals for misconduct.

Sidumo v Rustenburg Platinum Mines 2008 (2) SA 24 (CC):

In terms of the Labour Relations Act 66 of 1995 (the LRA), a CCMA or Bargaining Council commissioner has
to determine whether a dismissal is fair or not. A commissioner is not given the power to co nsider afresh
what he or she would do, but simply to decide whether what the employer did was fair. In arriving at a
decision, a commissioner is not required to defer to the decision of the employer. What is required is that
he or she must consider all relevant circumstances.

Section 33 of the Constitution provides that national legislation must be enacted to give effect to the right
to administrative action that is lawful, reasonable and procedurally fair. Section 145 of the LRA constitutes
national legislation in respect of administrative action within the specialised labour law sphere. It has to
meet the requirements of section 33(1) of the Constitution by providing for administrative action that is
lawful, reasonable and procedurally fair, and does so. Nothing in section 33 of the Constitution precludes
specialised legislative regulation of administrative action such as section 145 of the LRA alongside general
legislation such as PAJA.

Sidumo held that arbitration by a commissioner constituted administrative action. This did not mean,
however, that the review provisions of PAJA were automatically applicable to the review of commissioners’
arbitration awards. The powers of the Labour Court set out in section 158 of the LRA differ significantly
from the powers of a court set out in section 8 of PAJA. The former are directed at remedying a wrong and,
in the spirit of the LRA, at providing finality speedily. If an application in the normal course for the review of
administrative action succeeds, an applicant is usually entitled to no more than the setting aside of the
impugned decision and its remittal to the decision-maker to apply his or her mind afresh. The
Constitutional Court held that the Supreme Court of Appeal had erred, as a result, in holding that PAJA
applied to arbitration awards in terms of the LRA, the review provisions contained in the LRA themselves
being the applicable source for the Labour Court’s review power.

The standard of review Section 145 of the LRA must be read to ensure that administrative action by the
CCMA is lawful, reasonable and procedurally fair. The Constitutional Court held in Sidumo (at para 106) that
the reasonableness standard must now suffuse section 145 of the LRA. This does not threaten the
distinction between review and appeal. The Labour Court, in reviewing the awards of commissioners
inevitably deals with the merits of the matter (which does tend to blur the distinction between appeal and
review). A judge’s task, nevertheless, remains to ensure that the decisions taken by administrative agencies
(such as the CCMA) fall within the bounds of reasonableness as required by the Constitution. The test, to
summarise, is whether the decision reached by a CCMA commissioner is one that a reasonable decision-
maker could not reach. Applying this test gives effect not only to the constitutional right to fair labour
practices, but also to the right to administrative action which is lawful, reasonable and procedurally fair.
The court concluded that the Sidumo case was one of those where decisionmakers acting reasonably could
legitimately arrive at differing conclusions. The LRA had given the decision -making power to a CCMA
commissioner and it could not be said that the decision arrived at was one that a reasonable decision
maker could not reach.