ADL2601 Assignment 1 Semester 1 2023

ADL2601 Assignment 1 Semester 1 2023 DOCUMENT PREVIEW QUESTION 1 The Hate Speech Act 71 of 2008 (the “Act”) gives the Minister of National Integration Reconciliation and Official Languages (the “Minister”) the power to ban for a period of up to (5) five years any individual, club, society, or other organisation that is associated with racism or has racist sympathies. Section 9 of the Act creates and empowers the Racism Commission of South Africa (“RCSA”) to undertake an investigation into the activities of any organisation and to make a report to the Minister. The Minister then has the discretion to adopt or reject the recommendation in issuing a banning order. It is important to note that the Act does not permit any reviews or appeals and does not provide a duty for the Minister to give reasons for any banning orders issued. Your client, Mr Jack Sparrow (a South African citizen), has notoriously stated that colonisation has been a blessing to Africa and its benefits are still being realised. This starts a series of protests on social media and he’s actions are condemned by all political parties throughout the country. A week ago, he received a banning order in terms of the Act. The RCSA submitted a report to the Minister recommending that he be banned from the Republic, or otherwise deported from South Africa for a year to Mozambique. The Minister accepts the report and immediately decides to issue a banning order in terms of the Act. Mr Sparrow believes that the process leading to the ban was unfair. Discuss the procedural fairness of the Minister’s decision in terms of applicable law and opine on the correctness of the Minister’s decision. Section 3 of PAJA provides for procedural fairness. Section 3(2)(b) of PAJA lists the mandatory requirements: In order to give effect to the right to procedurally fair administrative action, an administrator, subject to subsection (4), must give a person referred to in subsection (1) i. adequate notice of the nature and purpose of the proposed administrative action; ii. a reasonable opportunity to make representations; iii. a clear statement of the administrative action; iv. adequate notice of any right of review or internal appeal, where applicable; and v. adequate notice of the right to request reasons in terms of section 5 The discretionary requirements for procedural fairness are listed in section 3(3) of PAJA). i. The aggrieved party may be given an opportunity to obtain assistance, even legal assistance in complex cases. ii. The aggrieved party may be given an opportunity to present and dispute information and arguments. iii. The aggrieved party may be given an opportunity to appear in person. S 3(4) of PAJA states that the requirements in s 3(2) of PAJA may be departed from only if reasonable and justifiable. This is determined by taking all relevant factors into account, which include: • The objects of the empowering provision • The nature and purpose of and need for the action • The likely effect of the administrative action • The urgency of the matter • The need to promote efficient administration and good governance (s 3(4)(b)) The decision to ban Mr Sparrow does not constitute procedurally fair administrative action in terms of PAJA because, inter alia: Mr Sparrow was not given an opportunity to make representations (an opportunity to be heard) since the ban was issued with immediate effect; and was not given adequate notice to request reasons for the administrative action. Mr Sparrow was not given the opportunity to obtain assistance. He was not given the opportunity to dispute information, nor was allowed to appear in person. There seems to be no reason that it could be reasonable and justifiable to depart from these requirements Furthermore, discuss if the Minister’s decision was reasonable in terms of applicable law Section 33(1) of the Constitution provides that all persons have the right to administrative action that is reasonable. Historically, the scope and content of this right has been disputed. Section 6(1) of PAJA also effectively guarantees the right to reasonable administrative action, as it provides that an individual may institute proceedings for judicial action to be reviewed, if the exercise of the power of the performance of the function in respect of which the administrative action was taken was so unreasonable that no reasonable person could have so exercised the power or performed the function (Section 6(2)(h) of PAJA). The Constitutional Court pronounced on the meaning of ‘reasonableness’ in the case of ‘Bato Star Fishing v Minister of Environmental Affairs 1 . In this case O’ Regan J also established certain factors that must be considered in determining whether or not a decision is reasonable, namely i. the nature of the decision, ii. the identity of the decision-maker, iii. the range of factors relevant to this decision, iv. the reasons given for the decision, v. the nature of the competing interests involved, and vi. the impact of the decision on the lives and wellbeing of those affected. In my opinion, Mr Sparrow right to reasonable administrative action was not infringed. This is because the action that was taken by the Minister was reasonable. In other words, the action that he took, banning Mr Sparrow with immediate effect, was one that a reasonable decision-maker could reach. This is upon consideration of the factors that were laid out by O’Regan J in the ‘Bato Star’ case Firstly, the Minister decision constituted a was in line with the recommendations that was made by the Racism Commission of South Africa. Furthermore, considering the history and harm brought by colonisation, Mr Sparrow statement can be classified as hate speech in terms of the Hate Speech Act 71 of 2008. Therefore the decision was reasonable since the Minister did not departure from the application law as well as the recommendations by the Racism Commission of South Africa