Administrative law – LAWS4063A
Topic 5: The right to reasons
Prescribed readings:
• Quinot (2020): Chapter 9 (227-254)
• 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)
• Minister of Environmental Affairs and Tourism and Others v Phambili Fisheries (Pty) Ltd
and Another (32/2003, 40/2003) [2003] ZASCA 46; ; [2003] 2 All SA 616 (SCA)
• Transnet Ltd. v Goodman Brothers (Pty) Ltd (373/98) [2000] ZASCA 62; 2001 (1) SA 853
(SCA)
• Wessels v Minister for Justice and Constitutional Development and Others (594/09)
[2009] ZAGPPHC 81; 2010 (1) SA 128 (GNP)
• Judicial Service Commission and Another v Cape Bar Council and Another (818/2011)
[2012] ZASCA 115; 2012 (11) BCLR 1239 (SCA)
Learning Outcomes:
• Explain the importance of reasons for effective decision-making.
• Explain the common law position regarding the giving of reasons for administrative
action.
• Identify and explain the provision in the Constitution dealing with the right to reasons
for administrative action.
• Identity and explain the right to reasons for administrative action in PAJA.
• Analyse and explain the right to reasons under the principle of legality.
9.1 Introduction
➢ S33(2) → ‘Everyone whose rights have been adversely affected by AA has the right to
be given written reasons’.
o Supporting element of the right to admin justice.
➢ Purpose of reasons = To justify AA + advance the constitutional requirements of
‘fairness, accountability, and transparency’.
o Likely to increase public confidence + enhance legitimacy.
Page 1 of 12
, ➢ Baxter → Importance of reasons
o Duty to give reasons entails duty to rationalise the decision.
o Conducive to public confidence in admin decision-making process.
o Rational criticism of a decision may only be made when the reasons for it are
known.
➢ Giving reasons improves quality of admin decision-making.
➢ Requirement of reasons means quality and rationality of decision are more likely to be
stronger than in cases where reasons are not required.
➢ Reasons will put affected persons in position to decide whether to let the matter rest,
or whether to make a new revised application or to make use of any admin appeal
facility provided, or whether to take it on review.
➢ Absence of reasons for a decision makes it difficult to invoke grounds of review.
➢ There are still some drawbacks for giving reasons.
o Imposes burden on administrators.
o Formulating and communicating written reasons is a time-consuming exercise.
o Stifle the exercise of discretion.
o Reasons can’t be furnished in all instances.
o It will lead to the ex post facto fabrication of artificial reasons to justify the decision.
o Increase in review applications.
Unconvincing and outweighed by benefits of reasons
➢ Most important balance to be struck is between protecting the admin justice rights of
the individual (being given proper reasons for decision) and promoting admin
efficiency.
o Administrator ought not to be unreasonably overburdened by having to provide
reasons.
➢ PAJA provides right to reasons in S5.
o Affected person may request reasons which the administrator must then provide
within the prescribed time.
o Administrator does not have to provide reasons at the time the decision is
communicated to the affected individual and doesn’t need to provide reasons at
all absent a request ito S5.
o Not appropriate to ask for reasons for the promulgation of regulations.
Page 2 of 12
Topic 5: The right to reasons
Prescribed readings:
• Quinot (2020): Chapter 9 (227-254)
• 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)
• Minister of Environmental Affairs and Tourism and Others v Phambili Fisheries (Pty) Ltd
and Another (32/2003, 40/2003) [2003] ZASCA 46; ; [2003] 2 All SA 616 (SCA)
• Transnet Ltd. v Goodman Brothers (Pty) Ltd (373/98) [2000] ZASCA 62; 2001 (1) SA 853
(SCA)
• Wessels v Minister for Justice and Constitutional Development and Others (594/09)
[2009] ZAGPPHC 81; 2010 (1) SA 128 (GNP)
• Judicial Service Commission and Another v Cape Bar Council and Another (818/2011)
[2012] ZASCA 115; 2012 (11) BCLR 1239 (SCA)
Learning Outcomes:
• Explain the importance of reasons for effective decision-making.
• Explain the common law position regarding the giving of reasons for administrative
action.
• Identify and explain the provision in the Constitution dealing with the right to reasons
for administrative action.
• Identity and explain the right to reasons for administrative action in PAJA.
• Analyse and explain the right to reasons under the principle of legality.
9.1 Introduction
➢ S33(2) → ‘Everyone whose rights have been adversely affected by AA has the right to
be given written reasons’.
o Supporting element of the right to admin justice.
➢ Purpose of reasons = To justify AA + advance the constitutional requirements of
‘fairness, accountability, and transparency’.
o Likely to increase public confidence + enhance legitimacy.
Page 1 of 12
, ➢ Baxter → Importance of reasons
o Duty to give reasons entails duty to rationalise the decision.
o Conducive to public confidence in admin decision-making process.
o Rational criticism of a decision may only be made when the reasons for it are
known.
➢ Giving reasons improves quality of admin decision-making.
➢ Requirement of reasons means quality and rationality of decision are more likely to be
stronger than in cases where reasons are not required.
➢ Reasons will put affected persons in position to decide whether to let the matter rest,
or whether to make a new revised application or to make use of any admin appeal
facility provided, or whether to take it on review.
➢ Absence of reasons for a decision makes it difficult to invoke grounds of review.
➢ There are still some drawbacks for giving reasons.
o Imposes burden on administrators.
o Formulating and communicating written reasons is a time-consuming exercise.
o Stifle the exercise of discretion.
o Reasons can’t be furnished in all instances.
o It will lead to the ex post facto fabrication of artificial reasons to justify the decision.
o Increase in review applications.
Unconvincing and outweighed by benefits of reasons
➢ Most important balance to be struck is between protecting the admin justice rights of
the individual (being given proper reasons for decision) and promoting admin
efficiency.
o Administrator ought not to be unreasonably overburdened by having to provide
reasons.
➢ PAJA provides right to reasons in S5.
o Affected person may request reasons which the administrator must then provide
within the prescribed time.
o Administrator does not have to provide reasons at the time the decision is
communicated to the affected individual and doesn’t need to provide reasons at
all absent a request ito S5.
o Not appropriate to ask for reasons for the promulgation of regulations.
Page 2 of 12
