Corporate Accountability and Human Rights: Aligning South African Business Practices with Constitutional Values
July 7, 2023
Public Sector and Regulatory
A Guide To Making Administrative Decisions That Are Lawful, Reasonable, And Procedurally Fair
1. What is administrative law?
Administrative law is a set of principles contained in both court decisions and legislation. It sets out how administrative decision makers must make decisions and provides affected people with a way to challenge those decisions.
Administrative law applies to government officers who make decisions under legislation that affect the rights and interests of others. In some instances. it may also apply to people who work for a private entity and make decisions on behalf of the government, or who perform a public function or exercise a public power in terms of legislation.
The apex laws governing and constraining the exercise of public powers and the performance of public functions are –
- Section 33 of the Constitution of South Africa, 1996
- Promotion of Administrative Justice Act, 2000 (PAJA)
- Principle of Legality at Common Law (court rulings)
2. Are you an administrative decision maker?
Common examples of administrative decision makers are ministers, officers working within government departments or municipalities, and people authorised through delegated authority to make decisions on behalf of those ministers or officers.
Administrative decisions are usually made under legislation and are directed towards a particular person (or organisation). They are different from contractual and commercial decisions, and policy and political decisions.
Examples of administrative decisions include:
- Issuing a fishing vessel licence;
- Granting or refusing access to documents under PAIA;
- Refusing to register a medical practitioner;
- Placing conditions on a planning permit.
3. What questions must be asked when making administrative decisions?
Where does the power to make the decision come from?
Decision-makers must find the section(s) of legislation that gives them the power to make decisions so they are aware of exactly what decision they are empowered to make. There may also be subordinate legislation, such as regulations or instruments made under the primary legislation, that must be confirmed.
Remember – make sure you are using the most up-to-date (current) version of the legislation.
Example: The power to grant or refuse the authorisation in terms of an application to establish a bank is vested in the Registrar of Banks designated by the Reserve Bank. This power to grant or refuse an application can be specifically pointed out in terms of section 13(1) of the Banks Act, 94 of 1990, as follows:
“13. Granting or refusal of application for authorization (1) Subject to the provisions of subsection (2), the Registrar may, after considering all information, documents and reports furnished to him or her for the purposes of an application under section 12, grant or refuse the relevant application or grant the application subject to such conditions as he or she may determine.”
In the seminal case of Fedsure Life Assurance v Greater Johannesburg Transitional Metro Council, the Constitutional Court explained that the Legislature and Executive in every sphere are constrained by the principle that they may exercise no power and perform no function beyond that conferred upon them by law.
Does the legislation give you any discretion in making the decision?
The Act may require a decision-maker to make a particular decision or it may give such person discretion in what is decided. A requirement to make a particular decision will often be indicated by the word ‘must’.
Discretion in making a decision will often be indicated by the word ‘may’. If the legislation gives you discretion, make sure you understand the boundaries within which you can exercise the discretion. This includes making decisions that are consistent with the purpose of the legislation (the purpose of the legislation may be set out at the Preamble or beginning of the legislation).
Example: Section 11 of the Promotion of Access to Information Act of 2000 (“PAIA”), which states that, a requester must be given access to a record of a public body, provided that the requirements are met. In this instance the information officer has no choice about the decision and is required to provide access to the documents in this circumstance.
Where a decision requires discretion to be applied, before being taken, the Court in Carephone (Pty) Ltd v Marcus NO posed the following illustrative question: Is there a rational objective basis justifying the conclusion made by the administrative decision-maker between the material properly available to him (i.e. the evidence available to make the decision) and the conclusion he or she eventually arrived at? If not, the decision taken must be considered arbitrary and not a lawful application of the decision-maker’s discretion.
Who is authorised to make the decision?
It will not always be possible for the people given decision making power under legislation to make all of those decisions. For example, ministers are often given powers to make decisions under legislation but are too busy to make all of those decisions personally. In these circumstances the minister may be able to authorise someone else to make the decisions for them.
If the legislation does not give you direct power to make the decision, you will need to be authorised as an authorised officer or delegate of the decision maker who is identified in the legislation. Make sure you have up-to-date documentation of this authorisation (for example, a document signed by the minister authorising you to make the decision) and that the decision you want to make falls within the scope of your authorisation.
Remember – If you are a delegate, you will make the decision in your own name. If you are an authorised officer, you will make the decision in the name of the person who authorised you.
Example: Section 5 of the Banks Act provides for the delegation of powers and assignment of functions by the Registrar of Banks, who may with the approval of the Reserve Bank—
(a) delegate to any officer or employee of the Reserve Bank or another financial sector regulator any power conferred upon the Registrar by or under the Act; or
(b) authorise any such officer or employee to perform any duty assigned to the Registrar by or under the Act.
In Minister of Health v New Clicks, the Constitutional Court did not allow the Minister of Health to subdelegate to her Director-General the task of determining a methodology for conforming to international benchmarks as this was a task for the Minister herself and the pricing committee that was appointed to advise her, as determined by the enabling legislation. The Director-General was not authorised by law to make this decision.
Are there requirements that need to be met before taking action?
There may be requirements (preconditions) that you need to satisfy before you can make a decision, for example, that you serve the affected person with a notice before you can take further action. There may be requirements that a person subject to your decision needs to satisfy before you can make a decision in their favour, for example, a requirement that they be of good character before you can grant them a licence.
If you are unsure about what the legislative requirements mean or how to interpret such provisions or how to apply them to a particular case, you should seek legal advice to ascertain what our courts have proffered as acceptable precedents for similar decisions made.
Example: Section 50 of the Promotion of Access to Information Act provides for the right of access to records of private bodies as follows –
(1) A requester must be given access to any record of a private body if —
(a) that record is required for the exercise or protection of any rights;
(b) that person complies with the procedural requirements in this Act relating to a request for access to that record; and
(c) access to that record is not refused in terms of any ground for refusal contemplated in Chapter 4 of this Part.
If the abovementioned requirements are not met by the requestor, e.g. if the requestor does not comply with the prescribed procedural requirements of duly completing the necessary forms and making payment, the information officer will not be obliged to grant them access to any record of a private body.
Has the decision maker acted fairly?
Procedural fairness (or ‘natural justice’) requires a decision maker to provide a fair hearing and be free of bias.
To provide a fair hearing, you must provide a person affected by your decision with an opportunity to respond to all issues or factual allegations that have come up during the decision-making process. You should also make sure there are no grounds for anyone to think you are biased or have a foreseeable conflict of interest.
A decision maker is bound by these requirements and legislation may also impose additional procedural fairness requirements, such as holding a formal hearing or issuing a notice.
Example: Section 6 of the Mineral Resources and Petroleum Resources Act of 2002 (“MPRDA”) provides that any administrative process conducted or decision taken in terms of this Act must be conducted or taken in accordance with the principles of procedural fairness. Section 10 of the MPRDA provides further, as follows –
10. Consultation with interested and affected parties
(1) Within 14 days after accepting an application lodged in terms of section 16, 22 or 27, the Regional Manager must in the prescribed manner –
(a) make known that an application for a prospecting right, mining right or mining permit has been accepted in respect of the land in question; and
(b) call upon interested and affected persons to submit their comments regarding the application within 30 days from the date of the notice.
In Janse van Rensburg NO v Minister of Trade and Industry NO, the Constitution Court explained that in modern states it has become more and more common to grant far-reaching powers to administrative functionaries. The safeguards provided by the rules of procedural fairness are thus all the more important. Procedural fairness is often explained through the audi alterum partem principle, meaning “hear the other side”.
In Bengwenyama Minerals (Pty) Ltd v Genorah Resources (Pty) Ltd, the Constitutional Court set aside the grant of a prospecting right issued under the MPRDA partly on the basis that the administrator had failed to comply with the consultation process required by the MPRDA before granting the prospecting right.
Have all relevant matters been considered in making the decision?
When exercising discretion, you must consider any relevant matters that the legislation requires you to consider (whether expressly or implied).
Where an action was taken because irrelevant considerations were taken into account, or relevant consideration were not considered, the decision maker has failed to apply properly his or mind to the decision.
The appropriate weight must be apportioned to matters of obvious and paramount importance with respect to the case or application before the decision-maker at the time. A decision-maker should not give another factor a weight far in excess of its true value – this is a failure to apply the mind properly to the matter.
Example: In Eskom Holdings Ltd v New Reclamation Group (Pty) Ltd, a tender for the collection and disposal of scrap metal was awarded on the basis of an irrelevant consideration, the financial ability of a third party, and without having regard to the financial ability of the tenderer itself.
In Minister of Defence v Xulu, a decision not to renew a solder’s employment contract was informed by considerations including two old and relatively minor disciplinary offences, while a strong, favourable recommendation and solid evidence of advancement were disregard. The court described this as a classic case of irrelevant, or only marginally relevant, considerations being taken into account and all the relevant considerations being discounted or ignored completely.
Have any relevant policies been considered?
You need to inform the affected person of any criteria or policy that you will consider in making your decision so they can access and respond to the policy. Policies must be applied to take into account the individual circumstances of the case before you. If this is not done, a court or tribunal could rule that your decision is invalid.
Example: In Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs, the Constitutional Court dealt with the allocation of fishing quotas and commented that it will be permissible, and indeed will often be desirable, for administrative decision-makers to adopt and apply general criteria evenly to each application in order to ensure that the decision subsequently made is fair and consistent.
In Scenematic Fourteen v Minister of Environmental Affairs, where there were more than 300 competing applications in a particular fishing sector, the Court considered that reliance on a system of scoring applicants, against certain criteria was objective, rational and practical in the circumstances. The court reasoned that the consistency was imperative in applying the policy but also took into account the fact that provision had been made for adjustment whenever the criteria and weighting were inappropriate for any reason.
What factual evidence is the decision based on?
Decisions should be based on persuasive evidence that you have obtained fairly. Consider whether you require evidence to support the information provided by the person affected – for example, if the information is inconsistent with known facts. If you have a concern about whether the evidence is factual, such evidence should be clarified for comment and input from the person affected.
Decisions should be based on persuasive evidence that you have obtained fairly. Consider whether you require evidence to support the information provided by the person affected – for example, if the information is inconsistent with known facts. If you have a concern about whether the evidence is factual, such evidence should be clarified for comment and input from the person affected.
Example: In Pepcor Retirement Fund v Financial Services Board, the Court dealt with certificates that had been issued by the Registrar of Pension Funds on the basis of what turned out to be incorrect actuarial information provided to him. As a result, a large sum of money had in consequence been transferred to a retirement fund. The decision was set aside on the basis that the decision was encumbered by a mistake of fact.
Has a decision been made with recorded reasons, and persons affected fully informed?
Make sure the decision is made within the legislation’s timeframe (or a reasonable timeframe if the legislation does not state a specific timeframe).
You should record the decision, including:
- decision-maker’s name;
- the person the decision was about;
- the date the decision was made;
- your reasons for making the decision;
- the evidence you relied on;
- findings on material facts;
- signing the decision.
Make sure your file is complete, and store relevant material separately from irrelevant material. Consider confidentiality and privacy obligations when recording the decision and filing the material. When communicating your decision to the person affected, make sure you advise the person of any internal or external review rights. Also consider whether you are required to tell anyone else about the decision.
Example: Section 228 read together with section 229 of the Financial Sector Regulations Act states that –
228. An obligation in a financial sector law to notify a person of a decision taken in relation to that person must be read as including an obligation to notify the person of that person’s right :
(a) to request reasons for the decision in terms of section 229; and
(b) to have the decision reconsidered.
229. A person who has not already been given the reasons for the decision may within 30 days after notification of the decision, request a statement of the reasons for the decision from the decision maker.
After receipt of the request in terms of section 229 (1) a decision maker must within 1 month, give the person a statement of the reasons for the decision, which must include a statement of the material facts on which the decision was based.
Seeking legal advice and clarity - Judicial reviews
Before making your decision, obtain legal advice if you are unclear about the correct interpretation or purpose of the legislation or you have any other concerns about the lawfulness of your decision.
Questions for decision-makers
| QUESTIONS | THINGS TO CONSIDER |
|---|---|
| Are you making an administrative decision? |
|
| Have you identified where the power to make the decision comes from? |
|
| Does the legislation give you any discretion in making your decision? |
|
| Are you authorised to make the decision? |
|
| Have you acted fairly in making your decision? |
|
| Are there any requirements that need to be met before you can take action? |
|
| Have you considered all relevant matters? |
|
| Have you only relied on relevant matters? |
|
| What evidence is your decision based on? |
|
| Have you considered any relevant policies? |
|
| Have you made a decision, recorded your reasons, and fully informed the person affected? |
|
| Do you need legal advice? |
|
Source material
C Hoexter and G Penfold Administrative Law in South Africa (Third Edition) (2022).
Law Institute of Victoria A User’s Guide To Administrative Decision Making – Delivering Good Decisions (2013)
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