Question 1
Section 3 of the Promotion of Administration Act takes into consideration the right to
procedural fairness .According to section 3 (1) Administrative action which materially
and adversely affects the rights or legitimate expectations of any person must be
procedurally fair.
Sub Section (2) (a) A fair administrative procedure depends on the circumstances of
each case. (b) 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.
Subsection (3) In order to give effect to the right to procedurally fair administrative
action, an administrator may, in his or her or its discretion, also give a person referred to
in subsection (1) an opportunity to – (a) obtain assistance and, in serious or complex
cases, legal representation; (b) present and dispute information and arguments; and (c)
appear in person.
Subsection (4) (a) If it is reasonable and justifiable in the circumstances, an
administrator may depart from any of the requirements referred to in subsection (2). (b)
In determining whether a departure as contemplated in paragraph (a) is reasonable and
justifiable, an administrator must take into account all relevant factors, including – (i) the
objects of the empowering provision; (ii) the nature and purpose of, and the need to
take, the administrative action; (iii) the likely effect of the administrative action; (iv) the
urgency of taking the administrative action or the urgency of the matter; and (v) the
need to promote an efficient administration and good governance
Subsection (5) Where an administrator is empowered by any empowering provision to
follow a procedure which is fair but different from the provisions of subsection (2), the
administrator may act in accordance with that different procedure.
It is important to note that the banning order did not follow the correct procedure it terms
of Section 3 of PAJA Act. Yes, according to the scenario the decision of the Minister
was not fair since Mr Jack Sparrow was denied the right to appeal and thereby, was
not given time to give further representations.
Section 3 of the Promotion of Administration Act takes into consideration the right to
procedural fairness .According to section 3 (1) Administrative action which materially
and adversely affects the rights or legitimate expectations of any person must be
procedurally fair.
Sub Section (2) (a) A fair administrative procedure depends on the circumstances of
each case. (b) 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.
Subsection (3) In order to give effect to the right to procedurally fair administrative
action, an administrator may, in his or her or its discretion, also give a person referred to
in subsection (1) an opportunity to – (a) obtain assistance and, in serious or complex
cases, legal representation; (b) present and dispute information and arguments; and (c)
appear in person.
Subsection (4) (a) If it is reasonable and justifiable in the circumstances, an
administrator may depart from any of the requirements referred to in subsection (2). (b)
In determining whether a departure as contemplated in paragraph (a) is reasonable and
justifiable, an administrator must take into account all relevant factors, including – (i) the
objects of the empowering provision; (ii) the nature and purpose of, and the need to
take, the administrative action; (iii) the likely effect of the administrative action; (iv) the
urgency of taking the administrative action or the urgency of the matter; and (v) the
need to promote an efficient administration and good governance
Subsection (5) Where an administrator is empowered by any empowering provision to
follow a procedure which is fair but different from the provisions of subsection (2), the
administrator may act in accordance with that different procedure.
It is important to note that the banning order did not follow the correct procedure it terms
of Section 3 of PAJA Act. Yes, according to the scenario the decision of the Minister
was not fair since Mr Jack Sparrow was denied the right to appeal and thereby, was
not given time to give further representations.
