Reasons

Wits Law School

16-17 April 2018
Readings
• Quinot, Chapter 8 (193-218) & Hoexter 470-485
• Koyabe and Others v Minister for Home Affairs and Others (CCT
53/08) [2009] ZACC 23; 2009 (12) BCLR 1192 (CC) ; 2010 (4) SA 327
(CC) (25 August 2009) esp para 63 (88 paras)
• Kiva v Minister of Correctional Services (1453/04, 43/2006) [2006]
ZAECHC 34; [2007] 1 BLLR 86 (E); (2007) 28 ILJ 597 (27 July 2006) (43
paras)
• Judicial Service Commission and Another v Cape Bar Council and
another (818/2011) [2012] ZASCA 115; 2012 (11) BCLR 1239 (SCA);
2013 (1) SA 170 (SCA); [2013] 1 All SA 40 (SCA) (14 September 2012)
(55 paras)
Outline
• History and Purpose of the Right to Reasons in SA Admin Law
• The Right to Reasons in PAJA s 5
• Evaluating the Adequacy of Reasons Given
• Further topics relating to the right to reasons
• Remedies
• Inconsistency
• Reasons for non-PAJA administrative action
History of Right to Reasons in SA Admin Law
• The right to reasons was not part of general SA administrative law
prior to 1994
• But it was provided for in some legislative sections
• Constitutional advent of the “culture of justification” (E Mureinik)
• Increase rationality, fairness, public confidence, and legitimacy
• Section 33(2): “Everyone whose rights have been adversely affected
by administrative action has the right to be given written reasons”
Purpose(s) of the Right to Reasons
• To improve quality of decision-making by structuring discretion
• To increase fairness and public confidence by informing the person affected
of the reasons for the decision
• To enable rational and constructive criticism of decisions after the fact –
akin to monitoring and evaluation – and to enable appeal and review
• To educate the person(s) affected for future applications
• NB: There are costs as well as benefits, often termed as “administrative
efficiency” (as mentioned in section 33(3))
• Time burden
• Chilling/stifling of discretion
• Increased level/number of review applications
The Right to Reasons in PAJA s 5
• Process is a request-driven regime
• NB: a clear statement of administrative action is a mandatory element of PAJA s 3
procedural fairness
• Affected person may request reasons; once triggered, administrator must
furnish reasons within 90 days; administrator may furnish reasons without
request and may furnish reasons before 90 days
• Evidence is oral or documentary information provided to the administrator
• Reasons – an explanation for a decision/administrative action
• Findings – part of the essential background for reasons, but not themlseves
a complete explanation
• In US law, may be basic findings or ultimate findings (made by inference from basic
findings)
The Right to Reasons in PAJA s 5
• Section 5(1): Any person whose rights have been materially and adversely
affected by administrative action and who has not been given reasons for
the action may, within 90 days after the date on which that person became
aware of the action, request that the administrator concerned furnish
written reasons for the action.
• Section 5(2): the administrator “to whom the request is made must, within
90 days after receiving the request, give that person adequate reasons in
writing for the administrative action”
• Section 9(1) allows for the period of 90 days to reduced or extended by
agreement between the parties
• Who may request reasons?
• What must that person do to request reasons?
The Right to Reasons in PAJA s 5
• Who may request reasons?
• Any person ‘whose rights have been materially and adversely affected by
administrative action’
• PAJA adds element of materiality – just means significant and not trivial
• Transnet v Goodman Brothers (SCA, 2001) gave reasons where a tenderor’s right, interests,
and legitimate expectations were not affected; done in order to allow tenderer to know if the
right to lawful administrative action had been violated; also equal treatment was suggested
• Kiva v Minister of Correctional Services (similar reasoning)
• Any person ‘who has not been given reasons for the action’
• If reasons already provided are adequate, then subsequent request need not be responded
to
• If reasons provided are inadequate, then adequate reasons must be given on request
• ‘Written reasons’ suggests oral reasons cannot be adequate
• ‘Given’ – does this include not individual notice but public notification?
The Right to Reasons in PAJA s 5
• Process of requesting reasons: 90 day period
• To what degree is this firmly regulated by detailed PAJA subordinate legislation?
• 2002 Regulations on fair administrative procedures
• Includes requirement for requester to stipulate the rights adversely affected
• 2009 Draft Rules of Procedure for Judicial Review of Administrative Action (not in effect)
• Process of providing reasons: 90 day period
• 2002 Regulations (requiring acknowledgement of request)
• Conflicting decisions on whether the 90 day period may be reduced in absence of an agreement or
court order (in context of whether an application for reasons ahead of the 90 day period would be
premature) (Quinot p. 202-203 suggests that proper approach is to apply to court for order for
period to be reduced, not reasons given) (good place for a general administrative tribunal?)
• Departures from PAJA s 5: (PAJA s 2 (exemptions) and PAJA s 5(4) (departures (w/
reasons) and s 5(5) (fair but different))
• PAJA s 5(6) (providing potential for Minister to categorize some administrative action as
requiring automatic reasons)
The Right to Reasons in PAJA s 5
• Inference relevant to judicial review from the failure to provide
reasons
• Courts willing to draw an adverse inference if the administrator does not
provide reasons; National Transport Commission v Chetty’s Motor Transport
• PAJA s 5(3) codifies this and goes further, enacts a presumption that
administrative action was taken for no good reason if reasons are not
provided
• Wessels v Minister for Justice and Constitutional Development (High Court,
2010)
• Where no reasons provided for shortlisted applicant’s non-appointment, court presumes
appointment decision taken for no good reason and thus set aside
Evaluating the Adequacy of Reasons Given
• Adequacy of reasons will be relevant to the satisfaction of the s 5(1)
request and to the standing of the requester – e.g. whether the
requester has already been given reasons
• Adequacy fits the purpose(s) of the right to reasons
• So that the person affected knows why and how the decision was made
• So that the person affected can evaluate her options to appeal/re-apply
Evaluating the Adequacy of Reasons Given
• Commissioner, SAPS v Maimela (High Court, 2003): Reasons “must be informative in the
sense that they convey why the decision-maker thinks (or collectively think) that the
administrative action is justified.”
• Minister of EA & T v Phambili Fisheries (SCA, 2003) adequacy includes:
• The decision-maker’s understanding (interpretation) of the relevant law
• The decision-maker’s finding on the facts
• Particularly important where the facts are in dispute
• The decision-maker’s reasoning process
• Bare conclusions are inadequate
• Reasons must set out not only factors but also their role in the decision
• Reasons stated in clear and unambiguous language
• Usually the use of statutory language would not be adequate
• Reasons of appropriate length and level of detail, considering
• The complexity of the decision
• The time available to formulate the statement of reasons
• The nature and importance of the decision
Evaluating the Adequacy of Reasons Given
• Koyabe v Minister of Home Affairs (LHR as Amicus Curiae) (CC, 2010)
• Reasons do not have to be “specified in minute detail, nor is it necessary to
show that every relevant fact weighed in the ultimate finding”
• Kiva v Minister of Correctional Services (High Court, 2007)
• Inadequate reasons were furnished by a letter informing an applicant that he
was not promoted and a second document providing him with a list of factors
considered
• Commissioner, SAPS v Maimela
• Adequacy of reasons must be judged from the viewpoint of the requester and
“from the outset” (e.g. prospectively, not retrospectively)
• If referring to an extraneous source, should that source be (a) identified (yes) and (b)
provided (maybe)?
Evaluating the Adequacy of Reasons Given
• The case of standard form reasons (in some situations, pro forma reasons
would be sufficient; in other situations, they would be insufficient)
• Nomala v Permanent, Dept of Welfare (High Court, 2001) (the standard form reasons
provided did not inform the requester/denied applicant about what to address
specifically in an appeal or a new application)
• Ngomana v CEO, South African Social Security Agency (High Court, 2010) (considering
reasons ito Social Assistance Act, notifying refused applicant of absent or non-
supportive medical report available to the applicant was sufficient to comply with
the right to reasons)
• If there is a requirement that there be such a report, absence and that requirement should be
notified to the applicant (Quinot p 214)
• If medical report is non-supportive, how and why it is non-supportive should be explained
(Quinot p. 214)
• Millenium Waste Management (SCA, 2008)
• Reasons provided in first stage of procurement (administrative compliance) may simply be
noted absence or presence of required detail and reference to legal provisions requiring such
detail
Further topics on the Right to Reasons
• Remedies
• Maimela (a court cannot prescribe to an administrator what its reasons
should be; appropriate remedy is to review the decision)
• Alternative: since inadequate reasons are not reasons, then an order
compelling provision of reasons is competent under PAJA (Quinot at p. 216)
• Provisions allowing for such orders exist in PAJA s 8(1)(a) and in the 2009 PAJA
regulations
• Inconsistency and the provision of supplementary reasons
• De Ville (consistency required; 90 days is time enough); Currie (in the name of
efficiency, an administrator may supplement initial reasons)
Further Topic: Reasons and non-PAJA
administrative action
• Judicial Service Commission v Cape Bar Council (SCA, 2013) (deciding not to
appoint any nominees to the WC bench, leaving two posts unfilled, noted
no nominees had received a majority vote)
• Responding to the challenge that this was “no reason at all” and thus
irrational, JSC argued:
• JSC under no constitutional or statutory duty to give reasons
• JSC did give reasons (see above); and
• JSC has secret voting procedures, limiting it to above reasons
• SCA found JSC has implied Con’l duty to provide reasons; that reasons
given were inadequate; JSC could choose another non-secret procedure;
see explicit Con’l reasons required for Con Court appointments
• Relying on the principle of legality, SCA invalidated the decision as irrational