©LegallyHope 2020
REASONS
TOPICS
1. The importance of reasons under the Constitution and PAJA
2. Requesting reasons under PAJA
3. The requirement to provide adequate written reasons
4. Variations and deviations from the requirement to provide reasons
5. Effect of failure or Refusal to give reasons
6. Reasons under the principle of legality
INTRODUCTION
Section 33(2) of the Constitution provides that everyone whose rights have been
adversely affected by AA has the right to be given written reasons.
Section 5 of the PAJA gives effect to this constitutional right - principle of
constitutional subsidiarity.
Regulations on Fair Administrative Procedures also applies here.
Section 9 - Variations - also finds application here.
Section 38 of the Constitution as well may find application - enforcement of rights.
DEVELOPMENT OF RIGHT
Before 1994, there was no general duty to give reasons, either oral or written, for
administrative decisions.
The common law required the giving of reasons in certain well-defined situations -
arrest.
Legislation, sometimes, imposed a duty to give reasons in particular statutes.
Sometimes, courts were willing to draw an adverse inference from a refusal or failure
to give reasons.
And then comes democracy and the Constitution…PAJA.
Importance of Reasons
Reasons offer an explanations or justifications for actions.
This right is important has it promotes a culture of justification, accountability, and
enhances public confidence in the decisions made.
, ©LegallyHope 2020
These advantages need to be balanced against the need to promote efficient
administration.
The formulation and communication of reasons can be a time-consuming
exercise.
The Constitution and the PAJA
Section 33(2) limits the application of the right to be given written reasons to person
whose rights have been adversely affected by AA - narrow.
Section 5(1) of the PAJA narrows this further by adding that rights must have been
materially and adversely affected.
Materially does not really mean much.
Courts have said that it is hard to imagine a situation where AA has had an
adverse impact on rights, but that impact is not also material - Kiva
Requesting Reasons
Looking at the WHO, HOW AND WHEN
Section 5(1) of the PAJA
Any person whose rights have been materially and adversely affected by AA
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 or might reasonably have
been expected to have become aware of the action, request that administrator
concerned furnish written reasons for the action.
Materially does not add any difference - if any rights of the applicants were
affected, such effect was material and adverse (Joseph)
Goodman reasoning - one will always have an adversely affected right to point
to, for the right to lawful, reasonable and procedurally fair AA in section 33(1)
will always be adversely affected by a failure to give reasons, and presumably
the effect will be material too.
This line of reasoning was picked up by Kiva - high court judgment.
Problems with the Goodman reasoning:
Hoexter - bootstrapping reasoning (a form of reasoning that verifies a
reliability by checking the source against itself) and it is not what the drafters
of the Constitution had in mind.
I think it is a form of judicial activism and this should not be allowed - we
see this clearly in the reasoning of Plasket J in Kiva.
REASONS
TOPICS
1. The importance of reasons under the Constitution and PAJA
2. Requesting reasons under PAJA
3. The requirement to provide adequate written reasons
4. Variations and deviations from the requirement to provide reasons
5. Effect of failure or Refusal to give reasons
6. Reasons under the principle of legality
INTRODUCTION
Section 33(2) of the Constitution provides that everyone whose rights have been
adversely affected by AA has the right to be given written reasons.
Section 5 of the PAJA gives effect to this constitutional right - principle of
constitutional subsidiarity.
Regulations on Fair Administrative Procedures also applies here.
Section 9 - Variations - also finds application here.
Section 38 of the Constitution as well may find application - enforcement of rights.
DEVELOPMENT OF RIGHT
Before 1994, there was no general duty to give reasons, either oral or written, for
administrative decisions.
The common law required the giving of reasons in certain well-defined situations -
arrest.
Legislation, sometimes, imposed a duty to give reasons in particular statutes.
Sometimes, courts were willing to draw an adverse inference from a refusal or failure
to give reasons.
And then comes democracy and the Constitution…PAJA.
Importance of Reasons
Reasons offer an explanations or justifications for actions.
This right is important has it promotes a culture of justification, accountability, and
enhances public confidence in the decisions made.
, ©LegallyHope 2020
These advantages need to be balanced against the need to promote efficient
administration.
The formulation and communication of reasons can be a time-consuming
exercise.
The Constitution and the PAJA
Section 33(2) limits the application of the right to be given written reasons to person
whose rights have been adversely affected by AA - narrow.
Section 5(1) of the PAJA narrows this further by adding that rights must have been
materially and adversely affected.
Materially does not really mean much.
Courts have said that it is hard to imagine a situation where AA has had an
adverse impact on rights, but that impact is not also material - Kiva
Requesting Reasons
Looking at the WHO, HOW AND WHEN
Section 5(1) of the PAJA
Any person whose rights have been materially and adversely affected by AA
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 or might reasonably have
been expected to have become aware of the action, request that administrator
concerned furnish written reasons for the action.
Materially does not add any difference - if any rights of the applicants were
affected, such effect was material and adverse (Joseph)
Goodman reasoning - one will always have an adversely affected right to point
to, for the right to lawful, reasonable and procedurally fair AA in section 33(1)
will always be adversely affected by a failure to give reasons, and presumably
the effect will be material too.
This line of reasoning was picked up by Kiva - high court judgment.
Problems with the Goodman reasoning:
Hoexter - bootstrapping reasoning (a form of reasoning that verifies a
reliability by checking the source against itself) and it is not what the drafters
of the Constitution had in mind.
I think it is a form of judicial activism and this should not be allowed - we
see this clearly in the reasoning of Plasket J in Kiva.
