Section 33 guarantees that administrative action will be reasonable, lawful and procedurally fair. It also makes sure that you have the right to request reasons for administrative action that negatively affects you. The section says government must pass laws that will:

• Provide for a review of the actions of a government official (or department) where the action might have gone against a person’s rights, and
• Make it a duty of the government and all government bodies to put this right into practice, be just, and promote an efficient administration

The Promotion of Administrative Justice Act 2 (2000) (PAJA) says that all decisions of every administration at every level of government must be lawful, procedurally fair and reasonable and must follow the rules in the Act. Examples of administrative action are: applying for an ID or birth certificate, applying for a first-time home owners subsidy, applying for a work or residence permit, and applying for refugee or asylum seeker status. The Act applies to all government departments, the police and army and private people who exercise public powers or perform public functions (for example, ESKOM, Telkom and the SABC). A person whose rights have been wrongly affected can ask for reasons to be given in writing to explain the administrative action taken. The Act also provides for review of administrative action by a court or tribunal.

WHAT ARE THE REQUIREMENTS OF LAWFULNESS, PROCEDURAL FAIRNESS AND REASONABLENESS IN TERMS OF THE PAJA?

LAWFULNESS

When the state has a legal duty to act in a certain way and fails to do so, it is acting unlawfully.

PROCEDURAL FAIRNESS

The procedure that the government follows in making an administrative decision must be fair. If there is a set of established rules that the government must follow in coming to the decision then these must be properly followed otherwise the decision can be challenged. However, the common law rule – audi alteram partem rule – is one rule that the government must always follow in making a decision. This rule says that a person whose rights are or may be affected by an administrative decision must be allowed to state his or her concerns before the decision is made.

REASONABLENESS

Whether an administrative action is reasonable or not depends on the circumstances surrounding the decision, i.e. the environmental considerations against which the decision was taken.

A court will be asked to test whether the decision was reasonable or not, such as:

• Was the decision the suitable one to make in the circumstances?
• Was the decision necessary?
• Was the decision proportional? In other words does it balance the competing interests of all the people who will be affected by the decision?

EXAMPLE

Certain people in your community live in an informal settlement near the coast and close to an expensive coastal holiday resort where people from the city own holiday houses. A chemical company has been granted permission by the local authority to set up a chemical production plant very close to the informal settlement.

It is likely that this chemical plant will harm the environment and possibly the health of people in the community. These people want to find out how the chemical company got permission to set up the production plant, and what other action the chemical company may be thinking of taking. They have formally requested the local authority to provide them with information about the new chemical production plant so that they can use the information to comment on whether they think the permission for the plant should have been granted or not. Any decision taken by the local government is an administrative decision.

What can the community do?

• They can use PAJA to get written reasons from the local authority for their decision to allow the erection of the chemical production plant.
• They can use the PAJA to challenge the procedural fairness of the municipality decision as their rights are affected by the decision and they were not consulted prior to it being made.
• They can use the PAJA to challenge the reasonableness of the decision. Here the court would consider all of the surrounding circumstances to see whether the decision was suitable, necessary and proportionate.

Other rights that are potentially affected in this example include the right to equality if the nearby (wealthy) resort has not been negatively affected in the same way as the informal settlement, and the right of access to information because the community’s request for information about the chemical production plant has been ignored.

WHAT CAN YOU EXPECT FROM THE ADMINISTRATION?

When you apply for something (for example, a social grant) or when the administration decides to request something from you, you can expect to be:

• Told what decision is being planned before it is taken
• Allowed to tell your side of the story before a decision is made
• Told what the decision is and of your right to internal appeal or review
• Told that you have the right to request reasons
• Given proper written reasons for the decision
• Able to challenge the decision in court

EXAMPLE

Certain people in your community live in an informal settlement near the coast and close to an expensive coastal holiday resort where people from the city own holiday houses. A chemical company has been granted permission by the local authority to set up a chemical production plant very close to the informal settlement.

It is likely that this chemical plant will harm the environment and possibly the health of people in the community. These people want to find out how the chemical company got permission to set up the production plant, and what other action the chemical company may be thinking of taking. They have formally requested the local authority to provide them with information about the new chemical production plant so that they can use the information to comment on whether they think the permission for the plant should have been granted or not. Any decision taken by the local government is an administrative decision.

What can the community do?

• They can use PAJA to get written reasons from the local authority for their decision to allow the erection of the chemical production plant.
• They can use the PAJA to challenge the procedural fairness of the municipality decision as their rights are affected by the decision and they were not consulted prior to it being made.
• They can use the PAJA to challenge the reasonableness of the decision. Here the court would consider all of the surrounding circumstances to see whether the decision was suitable, necessary and proportionate.

Other rights that are potentially affected in this example include the right to equality if the nearby (wealthy) resort has not been negatively affected in the same way as the informal settlement, and the right of access to information because the community’s request for information about the chemical production plant has been ignored.

WHAT CAN YOU DO?

If you think that the administrative decision taken against you might be wrong, you can:

REQUEST REASONS FROM THE ADMINISTRATION

Requests must:

• Be in writing (if you can’t write, ask a friend or relative to help you)
• Say what decision you are requesting reasons for
• Say why you think the decision is wrong
• Include your name, postal address, email address, fax and telephone numbers
• Be sent by post, fax, email or delivered by hand

You must be given reasons within 90 days of the administrator receiving the request. You can ask for the reasons to be given in writing.

USE INTERNAL APPEAL PROCEDURES

If you are not satisfied with the reasons given, then you can use internal appeal procedures if there is one. Some departments have an internal appeal procedure that you can use, for example, the Department of Home Affairs has an appeal board. You have to use any internal appeal procedure before taking any other action. The department must explain how the procedures work and how to make an appeal.

GO TO COURT

If there is no internal appeal procedure, or if you have used the procedure and are still not satisfied, you can ask a court to review the decision. This must be done:

• Within 6 months of any internal appeal having been decided
• (Where there is no internal appeal) within 6 months of finding out the decision

USE OTHER REMEDIES

Taking a matter on review is expensive. Cheaper ways of finding assistance include:

• Using internal appeal procedures
• Complain to the area or regional manager of the department concerned
• Complain to the ward councilor or provincial MEC of the relevant department
• Refer the complaint to the public protector, the South African Human Rights Commission
• Approaching a justice centre (or if there is no justice centre, the legal aid board) for legal assistance to take the case up