Professional Documents
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2002 Adminguide
2002 Adminguide
Administrative
Justice Act
Administrators' Guide
Written by -
Parts 1 to 7: Iain Currie and Jonathan Klaaren, Research Unit for Law
and Administration, Associate Professores at the University
of the Witwatersrand
Part 8: Thinus Rudolph, Jakkie Wessels, Lecturers at Justice
College/Department of Justice and Rainer Pfaff, German
Magistrate/GTZ-German Technical Co-operation
Justice College and GTZ hold the copyright of this Guide. Permission for reprint will be
granted subject to written approval by GTZ and Justice College. In this case the Guide
or parts thereof must be reprinted in the same format and with the same contents
referring to Justice College and gtz - German Technical Co-operation as the copyright
holders.
Contact number for GTZ- Legislative Drafting Project: 012/3227558
Promotion of Administrative Justice Act
Administrators’ Guide
CONTENTS
Topic Page
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Part 1
Introduction:
The Aim of this guide
The aim of this guide is to provide administrators in the public service with an
introduction to the most important requirements of the Promotion of Administrative
Justice Act 3 of 2000 (‘AJA’).
The AJA:
• Sets out the rules and guidelines that administrators must follow when making
decisions;
• Requires administrators to give reasons for their decisions;
• Requires administrators to inform people about their rights to review or appeal
and to request reasons; and
• Gives members of the public the right to challenge the decisions of
administrators in court.
Note
This guide does not include the “Code of Good Administrative Conduct” that the Minister of
Justice must still draw up. This Code will include guidelines and information for
administrators to assist them to meet the requirements of the AJA.
This guide also does not deal with the regulations to the AJA in detail. Instead, it touches
only on those dealing with how administrators should work (as they were in June 2001).
The regulations to the AJA will change from time to time. As a result, you will therefore
need to look at the regulations and the Code of Good Conduct regularly as well.
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Part 2
Important terms
And concepts
Some of the terms and concepts needed to understand the way the AJA works and what it is trying to
do. It explains:
• The Constitution;
• The Rule of Law
• The Bill of Rights;
• The State;
• Administrative Law; and
• Judicial Review.
a. The Constitution
South Africa is governed by the Constitution of the Republic of South Africa, Act 108 of
1996 (the Constitution). One of the most important things that the Constitution does is
to make South Africa a “constitutional democracy”. This means that the Constitution
is the highest law i n the country. It contains the Bill of Rights and the rules how
government has to function.
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c. The Law
If the government must obey the law and can only act when the law allows it to, where
is the law to be found?
i. Legislation
The Constitution is the highest a nd
most important law in South Africa. It has
a number of specific legal rules and it Legislatures
gives legislatures the power to The Legislature is the part of government that
makes new laws; amends (changes) any
make written laws (called legislation). written laws that need to be changed; and
scraps old written laws that are no longer
Although the Constitution is itself necessary.
legislation (having been passed
by Parliament in 1996), all In South Africa, we have:
• A national legislature (Parliament) to
other legislation is subordinate make laws for the whole country.
to the Constitution. These laws are known as Acts of
Parliament or simply Acts;
This means that legislation will only • Provincial Legislatures, to make laws
be valid if it complies with the Constitution. for their province. These are called
Provincial Acts; and
• Local legislatures, called municipal
A lot of legislation is made by councils to make laws (called By-
administrators. This type of law is Laws) for their municipal areas.
called delegated legislation. Very often,
an Act of Parliament or a Provincial Act,
will set out a broad framework and will give (delegate) the power to an administrator to
make rules for the administration of the Act. These rules are known as regulations.
Example
The South African Passports and Travel Documents Act 4 of 1994 (the Passports Act) deals with
passports. But the Act says nothing about things like:
• What forms must be used when you apply for a passport;
• What the application fee is; or
• How long the passport is valid for and whether it can be renewed.
Instead, the Act gives the Minister of Home Affairs the power to make regulations to cover these.
These regulations are therefore an important source of law on the subject of passports.
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A legislature can pass a law that overrules or changes the common law. Like all law, it
is also subordinate to the Constitution.
The particular right that we are concerned with is section 33 of the Bill of Rights, which
reads as follows:
(1) Everyone has the right to administrative action that is lawful, reasonable and procedurally fair.
(2) Everyone whose rights have been adversely affected by administrative action has the right to be given
written reasons.
(3) National legislation must be enacted to give effect to these rights, and must
(a) provide for the review of administrative action by a court or, where appropriate, an independent and
impartial tribunal;
(b) impose a duty on the state to give effect to the rights in subsections (1) and (2); and
(c) promote an efficient administration.
Note
Subsection (3) of section 33 says that an Act of Parliament must be
passed to:
• Explain how administrators must act; and
• Give people rights that they can enforce in court.
This Act has been passed - it is the AJA and is the focus of this guide.
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e. The State
The state is the “organised authority” of a country. It manages its public affairs, both
inside and outside the country. The state is made up of many organs of state. These
can be divided into four separate areas:
2. The judiciary. The judiciary is made up of the courts and the judges and
magistrates. Their function is to interpret and to enforce the law (including the
Constitution).
3. The executive. The National Executive is made up of the President and the
cabinet (the ministers). At provincial level, the executive is the Premier of a
province and the provincial Executive Council. At local level, the executive is
the respective district or municipal council. The executive makes political
decisions. It develops policy and writes legislation which it asks Parliament (or
the other legislatures) to consider and pass.
Note
The executive (the President, cabinet ministers, MECs, municipal or district councils etc) can also
sometimes act as members of the administration when they perform administrative (rather than
political) functions. When a cabinet minister, acting as the head of a government department, makes
regulations, he or she is acting as an administrator.
f. Administrative law
This is the branch of the law dealing with the administration. It is made up of:
1. General administrative law. This is the law that governs the administration in
general, by setting out:
• General rules and principles that all administrators must follow; and
• Remedies for people a ffected by administrative decisions – that is, where
administrative powers have not been properly used or where requirements of
in the law have not been followed.
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2. Particular administrative law. This is the body of law governing specific areas
of the administration. For example, the law relating to refugees and immigration,
vehicle licensing, state tendering procedures, land-use planning or civil aviation.
The AJA is part of general administrative law. It applies to and binds the entire
administration – national, provincial and local. The AJA:
• Sets out the general rules for the proper performance of all administrative action;
• Says reasons must be given for administrative action in certain circumstances;
• Requires administrators to inform people about their rights to review or appeal
and to request reasons; and
• Sets out the remedies that are available if these rules are not followed.
Because the rules in the AJA are general, they do not give powers to administrators.
Instead, the AJA says how the powers given to administrators by other laws must be
exercised.
Before administrators can make decisions that have an impact on another person, they
must be allowed to do so by a law. Whether the law allows a particular administrator to
make a particular decision depends on the law that applies to that administrator.
Even when administrators have this power, their decisions must also satisfy general
administrative law.
Example
Suppose officials of the Department of Home Affairs decide to increase
the fee for people applying for a passport. This decision affects the
public and can only be made if the law allows it. The law here is
Section 4(e) of the Passports Act. This allows the Minister of Home
Affairs to make regulations relating to the fees payable for a passport.
Can the Minister delegate this power to someone else in the
Department? Must a hearing be held before the decision is taken to
increase the fees? Must reasons be given for the decision to increase
the fees? The Passports Act itself does not answer these questions.
Instead, one must turn to the AJA, which sets out generally how the
powers given to administrators must be exercised.
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g. Democracy
Administrators exercise public power. The public has agreed to administrators having
power over them but, in a democratic state, administrators are expected to use this
power for the public benefit and not for their own private benefit.
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h. Judicial review
Because the government must obey the law it is possible to take the government to
court if you believe it has broken any law. The power that courts have to decide
whether a government decision is allowed by the law is called judicial review. Once the
court has heard both sides, it may decide the government’s action was unlawful – that
is, the action is not permitted by the law and is therefore invalid.
The AJA sets out the procedures and grounds for challenging a particular type of
government action - administrative action. If someone feels that a decision by an
administrator is unlawful, unreasonable or that fair procedures were not followed, they
can approach a court for judicial review of the decision.
Note
i. Batho Pele
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The Batho Pele White Paper sets out eight national service delivery principles, which
highlight the public service’s need to:
• Regularly consult with its customers about the level and quality of services they
are receiving and should receive in future;
• Set service standards, setting out the level and quality of services that
customers can realistically and consistently expect;
• Increase access to services, especially to those people who experience
barriers to access (such as their race, gender or disability; where they live; how
much money they have; their access to modern communication systems; their
culture and so on);
• Ensure higher levels of courtesy by setting out and sticking to standards of
behaviour for the treatment of customers;
• Provide more and better information about services, so that customers have
full, accurate, relevant and up-to-date information about the services that are
available and that they are entitled to receive;
• Increase openness and transparency about how services are delivered, how
well they perform, the resources they use and who is in charge;
• Remedy failures and mistakes, so that when problems occur, there is a
positive response and problems are sorted out; and
• Give the best possible value for money, so that customers feel that the money
they contribute to the state (through various forms of taxes), is used properly and
that any savings are used to improve service delivery further.
We need Batho Pele because many of our national and provincial departments are still
using outdated systems and procedures that were not designed to put the needs of the
people first. Batho Pele is therefore about ensuring that the resources we already use
to run the Public Service are geared towards delivering quality services. It is about
getting rid of wasteful and expensive internal procedures and using the money saved to
provide better services to more people. It is about making sure that the state’s priorities
for where money should be spent are in line with the public’s priorities.
Many improvements that the public would like to see cost nothing – a smile, treating
customers with respect, being honest with customers when giving info rmation, and
apologising if things go wrong. These are really about adopting different (and better)
standards of behaviour.
Batho Pele is not only about putting ‘the customer’ first. It is also about giving the people
who serve the customer - the front-line staff - a major role in the new public service.
Front-line staff, whether serving the public directly or providing services to other parts of
government, are often best placed to tell managers what needs to be done to improve
services for both internal and external customers. Front-line staff and those who
support and manage them now have the opportunity to have their say about how to
change and streamline systems and procedures that often get in the way of providing a
good service.
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Part 3
An Introduction to
The Promotion of Administrative
Justice Act (AJA)
A brief explanation of the AJA and its basic structures and principles.
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b. If the rights to administrative justice are already in the Bill of Rights, why is
there also an Act?
Note
Before the AJA was passed, administrators were only guided by the Constitution. Now,
the Constitution has been supplemented by the Act. This means that administrators
must first look to the AJA to find out what their general legal obligations are in relation to
the powers that they have by law.
But, if administrators are not sure about how to interpret something in the AJA, they
should remember that:
♦ The AJA is there to give effect to the right to just administrative action in the
Constitution; and
♦ The AJA is there to help ensure the government is democratic, accountable, open
and transparent.
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Part 4
Administrative Action
The type of decisions that are covered by the AJA, namely, decisions that amount
to “administrative action”. It describes:
• What is meant by the term “administrative action”; and
• Which of your decisions are administrative actions (and which are not).
The short answer is that the AJA deals with ‘administrative action’. But what does this
mean? Section 1 of the AJA gives a complicated definition of ‘administrative action’ that
can be summarised as follows:
(a) a decision
(b) that is of an administrative nature made in terms of an
empowering provision
(c) that is not specifically excluded by the AJA
(d) that is by an organ of state
(e) that adversely affects rights and
(f) that has ‘direct external legal effect’
Note 14
It is important not to misunderstand the AJA: The definition of administrative action given in the Act
is quite narrow – so, if an action does not fit this definition, it could be argued that the rules in the
Promotion of Administrative Justice Act
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a. “a decision”
The AJA says administrative action is limited to:
• a decision; or
• a failure to take a decision.
“Decisions”
A decision can be a decision (or a failure to make a decision) relating to:
(a) making, suspending, revoking (withdrawing) or refusing to make an order,
award, or determination;
(b) giving, suspending, revoking or refusing to give a certificate, direction,
approval, consent or permission;
(c) issuing, suspending, revoking or refusing to issue a licence, authority or other
instrument;
(d) imposing a condition or restriction;
(e) making a declaration, demand or requirement;
(f) retaining (keeping), or refusing to deliver up, an article; or
(g) doing or refusing to do any other act or thing of an administrative nature.
Failing to make a decision can have a major negative effect (it can “adversely affect”)
someone’s rights. An example would be failing to make a decision when someone
applies for a passport, since the Constitution gives every citizen the right to a passport.
(See section 21 (4) of the Constitution).
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• Of an administrative nature;
• Taken by an administrator;
• In terms of an empowering provision.
Example
The Minister of Home Affairs is allowed to increase passport
application fees.
The “empowering provision” that gives the Minister the power to make
this decision is Section 4(e) of the Passports Act.
These include:
• Policy decisions of the executive;
• The making of legislation by Parliament, a provincial legislature or a municipal
council; and
• The exercise of judicial functions by the officers of courts and some other bodies.
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Note
Government departments, functionaries and institutions are all covered by
the AJA. The AJA goes further though and covers decisions by private
individuals and companies when they are “exercising public power”. An
example would be when a government department out sources some of its
work to a private company, such as when a municipality contracts with a
company to supply water to the peoples’ homes.
For purposes of this guide though, we can ignore the application of the Act
in the private sphere.
To be an administrative action, the decision taken must adversely affect rights. What
does this mean?
Adversely
This means that the decision must impose a burden or have a negative effect. This
includes decisions that:
• Require someone to do something, to tolerate something or not to do something;
• Limit or remove someone’s rights; or
• Decide someone does not have a right to something. This is called an “adverse
determination of a person’s rights”.
Example
Refusing to grant someone a licence is a decision that has an adverse effect on that
person, while deciding to grant them a licence does not.
Quite often though, a decision to grant one person a benefit will have an adverse
effect on someone else. For example, X and Y apply for the same licence and the
administrator decides to give it to X.
Or, when permission is granted to construct a building, this could have an adverse
effect on a neighbour whose view may be blocked by the new building.
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Affects
There are two ways that a decision can affect a person’s rights:
• The decision could deprive a person of their existing rights. For example,
where an administrator decides to withdraw a license that a person already has;
or
• It could affect a person’s right by determining what those rights are. An
example is where someone applies for a license and the administrator decides
not to grant it. Here, the decision means the person will not get the rights that
go along with the license.
The AJA uses the term in both of these senses. In other words, decisions that deprive
someone of rights, and those that determine what that person’s rights will be, are both
“administrative action”.
Rights
Rights are understood in law as when one person has a right to claim something
against another person and that other person has a duty to do something.
Rights can be the rights granted by the Bill of Rights, by contract or by legislation.
Rights can even be created by a promise of an administrator.
Example
A person applies to the Department of Social Development for a welfare grant. If the
grant is given, the person has a claim against the department for the payment of money
and the department has a duty to pay the money. This is a right. If officials of the
department turn down the application, an adverse determination of the applicant’s
rights has been made (i.e., it has been decided that the applicant has no right to claim
the grant).
This is another way of saying that to qualify as administrative action, decisions must
have a real impact on a person’s rights. A short, simple definition would be:
Legal effect
This means that a decision must be a legally binding determination of someone’s rights
or obligations. In other words, a decision must establish what someone’s rights or
obligations are, or must change or withdraw them.
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Direct effect
This means that the decision must be a final one. If the making of a decision requires
an administrator to take several steps or decisions, and only the last step effects a
member of the public, then only the last step is said to have direct effect. In such a
case, only the last step is an administrative action and can taken to court for judicial
review.
External effect
This means that the decision has to affect someone who is not a part of the organ of
state. This will be the case even where people within such an organ of state (such as
public servants, students or prisoners) are concerned if they are affected in their
individual rights - that is, not through measures that are part of the daily business of
the organ of state.
Example
The decision to suspend a public servant or to fail a learner in their matric exam affects
these people in their indivi dual rights. These decisions are therefore administrative
actions.
The word ‘external’ should therefore not be interpreted literally. Even people within an
organisation are included by this term if their rights are affected because of the decision.
To Recap
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Over the next few pages, we will consider a long example to see how this works in
practice.
A Practical Example
1. The Department of Social Development is thinking about upgrading the
computer software it uses to calculate and pay pensions. It decides to
conduct a feasibility study. Is this an administrative action?
c. The decision is not specifically excluded by the AJA (it does not fit in any of
the section 1 exclusions).
BUT
f. The decision does not have a direct external legal effect – this is only something
that is part of the daily business of the Department.
For these reasons, the decision is not an administrative action under the AJA.
This does not mean that the decision is not subject to the Constitution and other
laws though. As we have seen, the Constitution and the rule of law require
organs of state to obey the law and to have legal authority for everything they do.
When the department makes decisions like this, it is not bound by the general
rules in the AJA. But it is bound by the particular rules set out in the laws
governing the public service and public finance, and by the laws governing social
welfare and pensions.
2. After completing the feasibility study, the Department decides to put out a
tender to design and install the new system. Is this administrative action?
Points (a) to (d) are still the same. But, again, the decision does not involve an adverse
determination or deprivation of anyone’s rights. And, the decision does not have direct
external legal effect in the sense of finally impacting on anyone’s rights.
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Once again, the fact that the AJA does not apply here does not mean that the
decision is not governed by law. For example, the laws governing public
finance management and state tendering procedures require contracts above
a certain value to be put out to public tender. If the department decided to
ignore these requirements and contract directly with a supplier it would be in
breach of the law and its actions (and the contract) would be invalid.
3. The request for tenders to design and install the new system is published
in the State Tender Bulletin. Is this administrative action?
Until a final decision is made on which tender to accept, the department’s actions do
not adversely affect rights and have no direct, external legal effect. So, again, this is
not administrative action under the AJA. However, the department must still follow the
law regarding tenders.
With regard to tenderer 1 (the person or company given the contract) this is not
administrative action under the AJA because the decision is a beneficial one.
However, in relation to the people or companies that were not successful, this is
administrative action in terms of the AJA because: The decision to award the tender to
tenderer 1 and not to them adversely affects their rights and has a direct external legal
effect on them.
This shows: Some decisions have opposite effects on different people. As the entire
decision-making process cannot be separated, fair procedures have to be followed
from the very beginning to comply with the AJA.
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Part 5
Procedural Fairness
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 AJA gives more detail about how these duties are to be
carried out by administrators.
• Section 3 deals with procedurally fair administrative action that affects any person.
• Section 4 deals with procedurally fair administrative action that affects the public.
• Section 5 deals with the duty to provide reasons for administrative action that
adversely affects rights.
• Section 6 deals with the requirement that administrative action must be lawful,
reasonable and procedurally fair by providing a right to judicial review of
administrative action on a list of grounds.
Over the ne xt few pages, we will look at each of these sections, and the duties they
place on administrators, in detail. In this part, we will look at the requirements in
sections 3 and 4. In Part 6 of this guide, we will look at the duty to give reasons in
section 5, and in Part 7, we will look at judicial review.
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• 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 and not
because of their own private or personal interest in the matter. As is often said,
“justice must both be done and must be seen to be done”.
Example
A decision not to award someone a social pension that they have applied for is a
decision affecting a particular person. Here, the administrator taking such a decision
must follow the procedures in section 3 of the AJA.
A decision to change the age at which people qualify for a social pension affects the
public generally. The procedures set out in Section 4 of the AJA must therefore be
followed before taking such a decision.
The AJA 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).
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NOTE
Remember that, when deciding whether or not to follow one of the optional procedures,
both the Constitution and the AJA require decisions to be made fairly. You will therefore
need to decide which procedures will, in the circumstances, be fair to the people who
will be affected by your decision.
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 AJA.
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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.
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Ø A person affected may need to be given the opportunity to appear in person before
the administrator.
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As we have said though, the regulations will change from time to time. If you are planning a notice
and comment procedure, check the regulations to make sure that you follow them carefully.
Again, these regulations will change from time to time. Anyone planning to use this procedure
should check the regulations carefully before beginning.
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Part 6
Giving Reasons
With the requirement in the AJA that people affected by administrative action have
the right to request reasons. It explains:
• When you need to give reasons;
• Who can ask for them;
• What “adequate reasons” are; and
• What your reply to a request for reasons should include.
According to the AJA, the request for reasons must be made within 90 days of the date
on which the person became aware (or should have become aware) of the
administrative action. You must then give adequate reasons, in writing, within 90 days.
NOTE
According to the AJA, administrators must give reasons for their administrative action to a
person who requests them. Of course, an administrator can give reasons immediately with
the decision. Sometimes this can help settle potential disputes already at the very
beginning.
Sometimes a request for reasons will be made months after the decision has been taken. It
is good administrative practice to make a note of the reasons for a decision at the time that
it is made. Having made a note, you will easily be able to provide reasons when requested
to do so.
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Anyone whose rights have been adversely affected by administrative action can request
written reasons. This includes someone whose rights have been specifically affected.
However, if you receive a verbal request from someone who cannot write or needs any other
assistance, you must help that person to make their request in writing.
Once you receive the request, you must acknowledge receipt. If you decide not to give reasons, you
must still write to the person and tell them why you are refusing to give reasons for your decision.
You must provide a satisfactory explanation of why a decision was taken. This does
not mean that the reasons have to convince the person that the decision was correct.
Instead, your reasons must have enough detail to explain why the administrative action
was taken. It is not enough to just repeat the relevant sections of the empowering
provisions in your reply.
If the person requesting reasons has raised specific questions, these should be
answered as far as possible.
The reasons should be written in a language that the requester will understand. For
example, do not use technical terms unless you know the person will understand these.
Generally, the length of your statement will depend on the complexity, nature and
importance of the decision that it explains. The more complex or serious, the better
motivated your statement should be.
d. Structure of reasons
In Part 8 you will find a detailed example of how reasons should be written.
Part 7
Judicial30Review
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With the right that people have to ask a court to review administrative action that
they do not agree with. It explains:
• What “judicial review” means;
• What “exhaustion of internal remedies” means;
• The “grounds” on which someone can ask for judicial review; and
• What the administrator must do if an administration action is taken to
court.
a. Introduction
For the rights to just administrative action to be more than just rights on paper, there
must be a way to enforce them. The most important way in which these rights can be
enforced is by judicial review. This means that any person who is unhappy with an
administrative decision can challenge the decision in court. There, they can argue that
the decision is a violation of the rights to just administrative action. If the court finds that
the decision is unlawful, unreasonable or procedurally unfair it can make any of a
number of possible orders to rectify the situation. These include:
Ø An order declaring the administrator’s decision invalid;
Ø Ordering the administrator to reconsider the decision;
Ø Replacing the decision with the court’s own decision; and
Ø Ordering the government to pay damages to the affected person.
Example
Agnes fled the civil war in the Democratic Republic of the Congo. She came to South
Africa and applied for asylum. She attended a hearing before a Refugee Status
Determination Officer who rejected her application as unfounded in terms of the
Refugees Act 130 of 1998. She believes that this decision is unreasonable and wants
to challenge it.
In terms of s 26(1) of Act 130 of 1998, asylum seekers who are unhappy with such
decisions can appeal to the Refugees Appeal Board. This is a three-member board
appointed by the Minister that can confirm, set aside or substitute any decision taken by
a Refugee Status Determination Officer.
This procedure is an internal remedy. So Agnes can only ask a court to review this
decision if the Appeal Board also finds against her.
This law does allow this procedure to be left out in ‘exceptional circumstances’ and if it
is ‘in the interest of justice’. If she wants to leave out this internal remedy, Agnes will
have to show the court why her circumstances are exceptional and why it is in the
interests of justice to do so.
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Where there are no internal remedies available, the application must be made within
180 days of the date on which the applicant became a ware of the decision (or could
reasonably be expected to have become aware of the decision).
A person who asks for judicial review after this period will not be successful, unless they
can convince the court to that it is “in the interests of justice” to allow it.
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and their decisions will be invalid. In most cases, administrators need to be able to
show a specific law that gives them the authority to perform an administrative action. In
general, without legislative authority, administrators are not authorised to make
decisions and take administrative action.
The law will often put certain conditions on this authorisation. Many laws require a
decision to be made by an official of a certain rank or with certain qualifications. If such
a decision is made by someone without these qualifications, they will have acted without
authority. For example, if a law says an official who makes a particular decision must
have a legal qualification, a decision made by someone without a legal qualification will
not be authorised.
Unauthorised delegation is a
similar idea. If a law says a
decision must be made by a Example
particular official, then only that The law governing public schools says the principal must
official can make that decision. decide to start disciplinary proceedings against learners. The
This official cannot delegate the principal cannot give this function to anyone else. If, for
power to make the decision to example, a teacher decides to start disciplinary proceedings
anyone else. against a learner, the decision (which is an administrative
action as it adversely affects the rights of the learner) will be
unauthorised and invalid and can be set aside by a court.
There are two types of bias: actual bias and apparent bias. Both types make an
administrative decision invalid. This is explained by the saying that “justice must not
only be done but must also be seen to be done”. Even if you are not actually biased
against a particular person or decision, you will act without a uthority if it reasonably
appears that you are biased. That is, if a reasonable member of the community could
think that you are biased, this will be apparent bias and procedural fairness will not
have been complied with.
Example
Mr Ndlovu is suing the local council for damaging his property. While this case is waiting
to be heard, he applies to the same local council for planning permission to add a new
room to this home.
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The local council officials cannot refuse to give him the planning permission unless he
withdraws his case against them. This is because the town-planning laws say decisions
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When using your discretion, you can only take relevant factors into account. If relevant
factors are not considered, or you take irrelevant factors into account, then your
decision will not have been taken for good reason. In such a case, a court can review
your decision.
Discretionary powers must be used by the person given these powers and not by
others.
Example
The Refugees Act says that a Refugee Status Determination Officer decides whether or not an
asylum-seeker applicant will be given refugee status. Another Department of Home Affairs
Official cannot make this decision, nor can they tell the Refugee Status Determination Officer to
make that decision in a particular way.
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The person who takes the administrative action to court (the Applicant) will issue a
“notice of motion”. This is a notice to the other side (the Respondent) that a court action
is being started. The Applicant will attach affidavits and other relevant documents to the
notice of motion. This notice of motion will be served on the administrator (who will be
the Respondent in this matter).
There can be more than one Respondent in any matter. For example, they might be the
relevant Minister, the Director-General, and the person who made the decision.
The Respondent (or Respondents) must deliver all documentation and records
regarding the administrative action to the relevant registrar or clerk of the court within 15
court days (working days).
As the decision maker, you may also be required to make an affidavit e xplaining the
circumstances and factors that you took into account when making the decision.
CONCLUSION
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Part 8
A practical example
In a practical case which so far has been described in more general terms. It outlines the
whole structure of a decision-making process from the application to the final decision. It
concludes with a kind of template for decisions.
It shows:
• The AJA complements the provisions of particular administrative law as far as fair
procedure is concerned;
• It gives helpful guidance for structuring efficient and lawful decision-making
processes;
• It can be changed to fit other areas of particular administrative law so that organs of
State can customize it to their particular needs.
An Example
Note
This example does not deal with all the details of the area of law used in the
example or with the complex decision-making process. Instead, it focuses on the
impact of the AJA on the decision-making process, which is:
§ The application (or where you act on your own authority without receiving an
application);
§ Applying the law to the facts of the matter;
§ Correspondence with the person who may be affected by a decision before the
decision is taken. Then, re-applying the law to the facts in the light of the
representation received;
§ Taking and issuing of a clear decision;
§ Giving reasons or informing the person of the right to reasons, and of any legal
remedies, when the decision is negative or qualified.
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All necessary forms have been completed, fingerprints taken and so on.
The national Department of Social Development has developed a 'Procedure Manual for
Social Assistance'. This manual provides a useful insight into this specific area of public
administration. However, it was developed before the AJA came into operation and the AJA
must now be followed as well when making these decisions.
Sometimes it can be more difficult to understand the person's request. For example,
the application may not be clear or the matter may be very complex.
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In our example, the most relevant law is the Social Assistance Act 59 of 1992 (“the
SAA”). However, it is in the regulations to this Act that you will find the detail on the
procedures to be followed and on substantive matters like the required age, the amount
of money to be paid and so on.
Lastly, there are forms and even software programmes to assist you in making this
kind of decision.
The following sets out the information you will need to find :
• Am I competent to take a decision? Has the authority to take the decision
been delegated to me?
• Am I potentially biased?
• Are there procedural requirements?
• What are the substantive requirements?
• Are there any other issues?
Once you have the information you will need, the next step when applying the law is to
get an understanding of the purpose of the empowering provision. With this
knowledge, it will be possible to avoid a too rigid, too technical and sometimes even
incorrect application of the law.
a. The Law
• Potentially biased. Since you do not know the applicant, it is unlikely that
you could be biased. However, as will be seen later, you do have certain
information about Ms Dube that you might have to take into consideration and
that will affect your decision.
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There may be some procedural steps that, if not followed, will not necessarily
lead to an unlawful decision. These are procedures that have been put in
place to ensure efficient internal operations. Examples are procedures on
how to register an application, filing systems and so on.
Note
The AJA focuses on fair procedures. Although decisions can be reviewed in terms
of s 6 (2) of the AJA also because of the reasons you took into account (as
opposed to the procedures you followed), this will really depend on whether you
have properly applied the empowering provisions of the particular administrative
law (here the SAA).
b. The Facts
What are the corresponding facts in our case?
• Procedural requirements in the SAA. Let's presume that they are all
complied with.
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Now we can see the particular relevance of the AJA, because you may have to reject
Ms Dube's application. Since this would adversely affect her rights and also have a
direct, external, legal effect, the provisions of the AJA apply.
Your decision is clearly an administrative action (since it meets all the aspects of the
definition of “administrative action” in the AJA). As a result, the AJA requires you to
inform Ms Dube of your planned decision so that she can make representations (see
section 3 of the AJA). The communication with Ms Dube can be done in writing, on the
telephone, or by using any other appropriate communication channels. In most cases it
is best to use written down procedures.
Notes
a. Positive decisions
At first sight, the AJA appears only to apply to 'negative' decisions (those which adversely
affect rights). But, a too narrow understanding may lead to unlawful decisions even where
you grant an application. For example, section 3 (2) (c) states that there must be a clear
statement of the administrative action. So, even if you decide to approve Ms Dube's
application, you have to inform her of this decision. Your letter must say that you have
granted the pension and how much money she will receive. Otherwise, Ms Dube could sue
you for failure to take a (clear) decision.
b. Temporary awards
In case of temporary awards (such as giving someone a disability grant for a fixed period),
the AJA applies as well because this decision will affect the person’s rights if they had
applied for a permanent grant.
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To make sure Ms Dube has a chance to explain her side of the story, you will probably
need to write to her, explaining what you have found out and what decision you plan to
take. The letter you write to her may look like this one:
I refer to your application for an old age pension. Regulation State the problem by
13 of the regulations to the Social Assistance Act 66 of 1992 referring to explaining the
says that a pension can only be given to a person who relevant legal provisions (in
(amongst other things) does not have savings exceeding as simple language as
R5,000.00. possible).
It has come to our knowledge that you have recently received State the corresponding
an amount of R100,000.00 Rand as an out -of-court settlement facts of the case as well as
relating to the death of your late husband 10 years ago. If this your conclusions for the
is so, you will not qualify for an old age pension. possible decision.
Please let us know whether this in fact the case and, if it is, how
much money you actually received. Please let us have your
reply by 15 November 2001 or I will have to reject your
application.
Signature
A Brooks Your name
Deputy Director: Social Grants Your job title and
dm department
There are no enclosures to
this letter – if there were,
you would indicate this here.
The writer’s initials
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If you had no doubts that your understanding of the legal and factual issues on which
you want to base your decision is correct, you could now come up with the final
decision.
However, in o ur example your information is based on hearsay – that is, you have heard
that Ms Dube has this money but you do not know this for sure yourself. News like this
can sometimes be spread without any factual basis. Ms Dube lives in your
neighbourhood. It should therefore be easy for you to contact her directly. As a good
administrator, you may want to visit Ms Dube to remind her to answer your request for
information. Even though the law does not require this, an administrator, in line with the
Batho Pele principles that demand customer-oriented service delivery, sometimes
should go the 'extra mile'.
However, even though you visited her house, she was not there. While talking to one of
her neighbours, she tells you as well about the out-of-court settlement and the money
Ms Dube received. As a result, and since Ms Dube has never written back to you, you
decide to turn down her application.
It provides a ‘template’ or structure for you to follow. You may want to change the
template to suit your needs. For e xample, if you are not responding to an application
but instead are acting on your own authority (perhaps by terminating an existing grant).
Often decisions are very simple and short. For example, there may be no cost order
necessary or the decision itself was quite simple. The more difficult and complex a
decision is, the greater the need for a more detailed and sophisticated decision and for
more detailed reasons. In all cases though, you must comply with the following
minimum requirements:
• A clear decision must be set out, which also includes your particulars;
• Adequate reasons must be given (or you must provide information on the right to
request reasons); and
• You must provide information on any legal remedies available.
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i. Address block
Make sure to include:
• Your address (which will usually be on the letterhead you use);
• The date of the letter;
• Your file reference number;
• Any special mailing instruction, if necessary (such as “By Registered Mail”; or
“By Fax”);
• The name of the person to whom you are writing;
• Their address;
• The name of the particular person you want to see the letter if you are writing
to a department or business (for example, “Attention: Ms P Ndlovu”);
• Your salutation (such as “Dear Ms Mkhize” or “Dear Sir”); and
• The subject of the letter (such as “RE: Your application for a liquor licence).
1. State the main decision in one sentence only, but do not give any reasons for
the decision here. The purpose of this sentence is for the recipient to get a
clear and simple answer to the question: “Did I succeed in my application?” or
“What does the Department want from me?”
Where you are acting on your own authority (and where you can't refer to an
application), you can test whether your decision is clear and complete by
checking to see that it answers the question: Who has to do what, when and
where?
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3. Make a cost order, if the empowering provision allows or requires it. State the
amount that must be paid, who must pay it, and by what date the amount
should be paid. If you have to issue an assessment before the amount can be
paid, attach the assessment as an enclosure.
a. State the jurisdiction or authority of the decision-maker. That is, say why
you have authority to make this particular decision (in simple cases, where
there is no dispute about your authority, it may not be necessary to
elaborate on this requirement).
b. State the facts of the matter. Two sets of facts are important:
c. Give the reference of the empowering provision – that is, say what
provision covers decisions on these types of facts.
d. State the purpose of the empowering provision. List the conditions that
must be met before an administrator may exercise the powers in the
empowering provision. If you rely on a Court’s interpretation of the
section, give the reference of the case and explain what impact this
decision has had on the section.
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2. Repeat the process for each of the subordinate decisions and any cost order.
Note
This structure sets out all the elements of a sound motivation for a decision. Of course, as in
our example, you can keep it short in simple in clear cases. This applies in particular to
situations where, after having read the party's representations, you know that the actual
dispute focuses on one very specific issue. In such a case, it is important to address this
topic and keep the rest very brief.
In such a case you will therefore have to include a paragraph where you explain the
right to request reasons. This should be done before you explain the person’s rights to
legal remedies.
Example
A person makes an application to your department. You decide to reject the
application, but your department’s policy is not to give reasons unless these are
requested from you. After your actual statement of the decision you should now add
a paragraph such as the following:
If you would like reasons for this decision, please send your request
to the above-mentioned address. In your letter, please refer to this
decision. You must also tell us which of your rights, in your opinion,
have been adversely affected. You must also provide us with your
full name, postal address and, if available, a telephone and fax
number where you can be contacted.'
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Remember to include:
• Your assessment for any fees payable; and
• An internal appeal form (if prescribed).
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