Application of Section 3(2)(b)(ii) and (3)(a) of PAJA Act 3 of 2000: Procedural Fairness and the Right to Particular Legal Representation Dyanti v Rhodes University 2023 (1) SA 32 (SCA)

Abstract

The elements constituting procedural fairness at common law were eloquently set out by Mokgoro J in De Lange v Smuts NO (1998 (7) BCLR 779 (CC)), where she emphasised that, in essence, fair procedure is designed to prevent arbitrariness in the outcome of a decision. It gives content to the rule of law by mandating that no one should be judge in their own matter and that the other side should be heard. It eliminates partiality and gives everyone the right to state their case. De Ville sees this approach as explaining the rationale for the existence of the right to procedural fairness. Implicit in Mokgoro J’s dictum are the two requirements of natural justice – namely, audi alteram partem (hear the other side) and nemo iudex in sua causa (no one may be a judge in their own cause).

In practice, however, before the decision of Administrator, Transvaal v Traub (1989 (4) SA 731 (A)), the opinion of the courts was that the audi rule was only applicable where a statute authorised the taking of a decision that could affect a person’s existing rights, property or freedom. This type of decision was regarded as quasi-judicial, and only in such situations would the audi rule find application. Corbett CJ in Traub held that in future, the audi rule would be applicable in all instances where a person’s existing rights, property or freedom were affected, and also where a person’s legitimate expectation was affected. In Jenkins v Government of the Republic of South Africa (1996 (3) SA 1083 (Tk)), the court held that the definition of legitimate expectation is unnecessary since the doctrine had already become part of our common law. Burns and Henrico concur with this statement to the extent that the doctrine does not conflict with the Constitution of the Republic of South Africa, 1996. Since Traub, the courts have retreated from their previously formalistic and restrictive approach to natural justice, and have accepted a flexible and broader duty to act fairly in all cases. As put by Hoexter and Penfold, procedural fairness has become one of the most interesting and vibrant areas of South African law. This is due to the creation of a constitutional right to procedurally fair administrative action in section 33 of the Constitution, as well as the provisions of the Promotion of the Administrative Justice Act (3 of 2000).