Kiva v Minister of Correctional Services and Another (1453/04 , 43/2006) [2006] ZAECHC 34; [2007] 1 BLLR 86 (E); (2007) 28 ILJ 597 (E) (27 July 2006)

22

FORM A

FILING SHEET FOR EASTERN CAPE JUDGMENT

ECJ no : 43

PARTIES: NELSON BALEKILE KIVA APPLICANT

AND

THE MINISTER OF CORRECTIONAL RESPONDENT

SERVICE + 1 OTHER

REFERENCE NUMBERS -

Registrar: 1453/04

Magistrate:

Supreme Court of Appeal/Constitutional Court:

DATE DELIVERED: 27 JULY 2006

JUDGE(S): C. PLASKET

LEGAL REPRESENTATIVES -

Appearances

:

for the State/Applicant(s)/Appellant(s): ADV. B. HARTLE & ADV. GAISA

for the accused/respondent(s): MR M. WOLMARANS

Instructing attorneys:

Applicant(s)/Appellant(s): MILI ATTORNEYS

Respondent(s): N. N. DULABH AND CO.

CASE INFORMATION -

Nature of proceedings : ADMINISTRATIVE ACTION

Topic:

Keywords:

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

CASE NO: 1453/04

DATE HEARD: 22/6/06

DATE DELIVERED:27/7/06

REPORTABLE

In the matter between:

NELSON BALEKILE KIVA

Applicant

and

THE MINISTER OF CORRECTIONAL SERVICES 1st Respondent

THE NATIONAL COMMISIONER OF CORRECTIONAL

SERVICES 2nd Respondent

______________________________________________________________

Administrative Law – duty to furnish reasons for administrative action in terms of s 5 of the Promotion of Administrative Justice Act 3 of 2000 (the PAJA). The applicant, an employee of the Department of Correctional Services, had applied to be promoted. Although he qualified for the post, he was unsuccessful. He launched an application to compel the respondents to furnish reasons for not promoting him. Held, as to the point that his application was premature because he had not exhausted the internal remedy of appealing when he had earlier applied for information in terms of the Promotion of Access to Information Act 2 of 2000, that this was not an internal remedy in respect of the right to reasons. Held, on the merits, that the decision not to promote the applicant was an administrative action as defined in the PAJA, that the applicant was entitled to be furnished with reasons in terms of s 5 of the PAJA and that he had not been furnished with reasons. The application was granted with costs.

JUDGMENT

PLASKET, J

[1] The applicant applied for an order in the following terms:

‘1. directing that the administrative action of the first respondent, or his functionaries, in failing to furnish the applicant written reasons for certain administrative action requested in annexure “NBK8” to the applicant’s founding affidavit, be judicially reviewed in terms of the provisions of the Promotion of Administrative Justice Act no. 3 of 2000 (“PAJA”), and declared unlawful;

2. directing the first respondent, or his functionaries, within 30 days of the service of this order, to furnish the written reasons to the applicant’s request set out in annexure “NBK8” to his founding affidavit;

3. directing the respondents to pay the costs of the application, the one paying, the other to be absolved;

4. directing that the order granted herein be served on the respondent, c/o The State Attorney, 29 Western Road, Central, Port Elizabeth.’

[2] At the outset Mr Gaisa, who appeared with Ms Hartle for the applicant, wisely abandoned the relief claimed in paragraph 1 of the Notice of Motion. Clearly, when an application is brought for the furnishing of reasons for administrative action, it is brought in terms of s 5 of the Promotion of Administrative Justice Act 3 of 2000 (the PAJA) and not as a review in terms of s 6. The application is now aimed directly at compelling the respondents to furnish the applicant with reasons for a decision that affected him adversely.

[A] THE FACTS

[3] The applicant is employed as an Area Commissioner (at the post level of Deputy Director) in the Department of Correctional Services (the Department). He is stationed at the Sada Prison.

[4] During 2003 he applied for promotion to a position as Area Commissioner at the post level of Director. He was short-listed and interviewed but was not promoted. He was formally informed that his application for promotion had not been successful by letter dated 21 October 2003. This letter thanked him for his application, expressed regret at the fact that his application had been unsuccessful and thanked him for the ‘interest shown in the post’. It concluded by wishing him ‘every success with your future career’.

[5] On 17 October 2003, four days before the date of the letter but presumably after the applicant had been informed verbally that his application had not succeeded, he filed a grievance in which he stated, after referring to the post he had applied for, that the Department ‘must give me reasons why I am always not successful’ in applying for promotion. In an annexure to the grievance form, he set out details of his career and his accomplishments and stated: ‘I want to know where can I improve so that I can get a higher position.’ Further on in the annexure, he stated: ‘My worry is how long am I going to be Deputy Director. Is there any future for me in this Department?’

[6] In response to the grievance, the applicant received a copy of a letter from the Department’s Head Office to the Acting Regional Commissioner, Eastern Cape in which it was pointed out that the only way an employee may be promoted is if he or she applies successfully for a higher post that has been advertised, that candidates must, in order to be considered, possess the minimum requirements for the post and that in the selection process ‘it is an unfortunate reality that an applicant has to compete against other deserving candidates. In the process qualifications, relevant work and managerial experience and the profile of the candidate are considered’. The writer continued to say that there was no evidence that an unfair labour practice had been committed against the applicant, that he was not ‘the only employee in this situation’ and that there were, in fact, ‘many other employees in a similar situation’. He was advised to ‘keep on trying’.

[7] The applicant was not satisfied with this response so he requested, in terms of s 25 of the Promotion of Access to Information Act 2 of 2000, the Department’s record of the interviews for the post for which he had applied, and the decision taken. This was refused on the basis of s 44(2)(b) of the Act.

[8] The applicant then instructed attorneys who requested, in terms of s 5 of the PAJA, the reasons for the decision not to promote him. In the letter requesting the reasons, however, his attorneys referred erroneously to another post for which the applicant had applied and been refused. Nothing turns on this mistake for two reasons, even though the respondents opportunistically sought to make something of it. First, the respondents knew that the reference to the post in this letter was erroneous. They knew, all along and particularly in the light of the grievance filed by the applicant and the request for information, that the matter concerned the application for the position as Area Commissioner at the post level of Director. They have, in all of their dealings in this matter, proceeded on that basis. They have consequently not been prejudiced in any way by what was an obvious mistake. Secondly, their defence on the merits is not based on the mistake but is that the applicant is not entitled to reasons and, if he is, he has been furnished with reasons in the form of the letter informing him that his application was unsuccessful and the response to his grievance.

[9] It is common cause that subsequent to the dispatch of the letter requesting reasons, no reasons had been furnished by the respondents and that the 90 day period within which reasons must be furnished in terms of s 5(2) of the PAJA has expired.

[10] The principal issues that arise from these facts are whether the applicant has a right to reasons in the circumstances and, if so, whether the two documents mentioned above contained reasons. In addition to the point taken by the respondents and already dealt with by me concerning the erroneous reference to a different post in the request of reasons, two further points taken by the respondents require brief attention. They are that the applicant failed to exhaust his internal remedies before launching these proceedings and that he should have joined as respondents the other applicants for the post for which he had applied unsuccessfully.

[B] THE RESPONDENTS’ POINTS

(1) The Exhaustion of Internal Remedies

[11] Section 7(2)(a) of the PAJA provides that ‘no court or tribunal shall review an administrative action in terms of this Act unless any internal remedy provided for in any other law has first been exhausted’. Section 7(2)(b) states that ‘a court or tribunal must, if it is not satisfied that any internal remedy referred to in paragraph (a) has been exhausted, direct that the person concerned must first exhaust such remedy before instituting proceedings in a court of tribunal for judicial review in terms of this Act’. Section 7(2)(c) provides, however, that ‘a court or tribunal may, in exceptional circumstances and on application by the person concerned, exempt such person from the obligation to exhaust any internal remedy if the court or tribunal deems it in the interest of justice’.

[12] It is the respondent’s contention that because the applicant did not appeal internally against the Department’s refusal to provide him with information in terms of the Promotion of Access to Information Act, he has not exhausted an internal remedy and that I must, in terms of s 7(2)(b) of the PAJA direct that he first exhaust that remedy before approaching this court for relief.

[13] There are at least three reasons why this point is misconceived.

[14] The first is that the internal appeal in terms of s 74 of the Promotion of Access to Information Act is an appeal directed at obtaining information – and thereby exercising the fundamental right of access to information entrenched in s 32(1) of the Constitution – and has nothing to do with obtaining reasons for an administrative act in terms of s 5 of the PAJA -- and the enforcement of the fundamental right to just administrative action entrenched in s 33 of the Constitution.1 In other words, the administrative appeal created by s 74 of the Promotion of Access to Information Act is not an internal remedy for a refusal to furnish reasons for adverse administrative action in terms of s 5 of the PAJA.

[15] Secondly, if I am wrong in this respect, the obligation cast on an applicant by s 7(2) of the PAJA is not an ouster of the courts review jurisdiction. If it purported to be, it would be in conflict with the founding value of the rule of law and s 34 of the Constitution, the fundamental right of access to court. Instead, s 7(2) merely defers a person’s right of access to court until the internal remedy has been exhausted, or until the right to utilise it has lapsed.2 Section 75(1)(a) of the Promotion of Access to Information Act requires an appeal to be lodged within 60 days. Once that time period has elapsed an applicant is no longer barred from approaching a court. This application was launched more then 60 days after the refusal to provide the applicant with the information he requested.

[16] Thirdly, s 7(2) of the PAJA only applies to the review of administrative action in terms of the PAJA. Administrative action is reviewed in terms of s 6 of the PAJA. This application is not an application for the review of administrative action (despite the misdirected terms of the now abandoned paragraph 1 of the Notice of Motion) and thus directed at vindicating the fundamental right to lawful, reasonable and procedurally fair administrative action provided for in s 33(1) of the Constitution. It is, in substance and form, an application to compel the respondent to furnish reasons in terms of s 5 of the PAJA, which gives effect to the fundamental right to reasons for administrative action entrenched in s 33(2) of the Constitution. In any event, neither s 5 of the PAJA, any other section of that Act or any other relevant law creates an internal appeal or any other form of internal remedy for a refusal to furnish reasons for a decision, taken in terms of the Correctional Services Act 111 of 1998, not to promote an employee of the Department. Section 7(2) of the PAJA therefore does not bar the applicant from approaching this court for relief.

(2) Non-Joinder

[17] Mr Wolmarans, who appeared for the respondents, argued that the other applicants for promotion should have been joined as respondents in this application. This point is also misconceived. They have no interest in the applicant compelling reason for the decision not to promote him, although if he obtains reasons and decides to take that decision on review, he would be well advised to cite the successful candidate for promotion as a respondent. That person would clearly have a direct and substantial interest in the outcome of the application for review but has no legally recognised interest in these proceedings.

[C] THE RIGHT TO REASONS FOR ADMINISTRATIVE ACTION

(1) General Remarks

[18] Section 33(2) of the Constitution states: ‘Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons.’ Section 33(3) of the Constitution placed an obligation on the legislature to enact legislation to give effect to the fundamental right to just administrative action, including the right to reasons. That legislation is the PAJA.

[19] Section 5 of the PAJA, to the extent relevant for present purposes, states:

‘(1) Any person whose rights have been materially and adversely affected by administrative action 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 the administrator concerned furnish written reasons for the action.

(2) The administrator to whom the request is made must, within 90 days after receiving the request, give that person adequate reasons in writing for the administrative action.

(3) If an administrator fails to furnish adequate reasons for an administrative action it must, subject to subsection (4) and in the absence of proof to the contrary, be presumed in any proceedings for judicial review that the administrative action was taken without good reason.’

[20] Mr Wolmarans contended that because the rights of the respondents, as the applicant’s employers are also involved, s 5 of the PAJA should be restrictively interpreted. This submission finds no support in the case law. In Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and others3 O’Regan J stated that as the PAJA ‘gives effect to s 33 of the Constitution, matter relating to the interpretation and application of PAJA will of course be Constitutional matters’. As a general rule, constitutional provisions, particularly those concerning fundamental rights, should be interpreted generously and purposively so as to give to the bearers of those fundamental rights the full measure of the Constitution’s protection.4

[21] In Minister of Health and another NO v New Clicks South Africa (Pty) Ltd and others (Treatment Action Campaign and another as Amici Curiae)5

Chaskalson CJ, although dealing specifically with the interpretation of the definition of administrative action, expressed himself in favour of a generous interpretation of the PAJA when he stated that a narrow interpretation of the term ‘administrative action’ where it appears in s 33 of the Constitution ‘would not be consistent with the purpose of section 33 which is to establish a coherent and overarching system for the review of all administrative action; nor would it be consistent with the values of the Constitution itself’.6 Because the PAJA must be interpreted consistently with s 33 of the Constitution,7 it follows that, in order to avoid constitutional invalidity, the PAJA must, in general, be interpreted in the same generous and purposive way as the fundamental rights provisions in the Constitution to which it is to give effect.

[22] The procedures for requesting and enforcing the right to reasons and the obligations of administrative functionaries to furnish reasons for their decisions on request must be interpreted consistently with s 33(2) of the Constitution and with the purpose of that right, which is to give effect to the values of accountable,8 responsive and open governance, enshrined as a founding value in s 1(d) of the Constitution.9 In this sense the giving of reasons is not a values-free mechanical process.10 It serves to make judicial review of administrative action effective11 and contributes to the attainment of a culture of justification for the exercise of public power.12 It attains even more significance in South Africa where the Constitution places the public administration under specific obligations to act ethically, efficiently, impartially, fairly, equitably, without bias and accountably.13

[23] In terms of s 5(1) of the PAJA, the right to reasons is qualified by the requirement that an applicant’s rights must have been ‘materially and adversely affected’ by the administrative action concerned. Before proceeding further I note that s 5(1) has, by including the word ‘materially’, purported to place a limitation on s 33(2) of the Constitution which speaks of the right to reasons being activated when rights are adversely affected. I am in agreement with Professor Hoexter who takes the view that this does not change the approach to the interpretation of the right.14 Section 5 (1) of the PAJA must still be construed consistently with s 33(2) of the Constitution and I find it difficult to imagine a situation where a person’s rights have been adversely affected but the effect is not material. Be that as it may, I now proceed to consider whether the applicant qualifies to be furnished with reasons for the decision not to promote him.

(2) Is the Applicant Entitled to Reasons?

[24] The first issue to be determined is whether that decision constituted administrative action: if it does not, then the applicant will not be entitled to reasons; if it does, he will be if he meets the requirements of s 5(1) of the PAJA.

[25] In Grey’s Marine Hout Bay (Pty) Ltd and others v Minister of Public Works and others15 Nugent JA said the following of the way in which courts must approach the interpretation of the term ‘administrative action’:

‘[21] What constitutes administrative action - the exercise of the administrative powers of the State - has always eluded complete definition. The cumbersome definition of that term in PAJA serves not so much to attribute meaning to the term as to limit its meaning by surrounding it within a palisade of qualifications. It is not necessary for present purposes to set out the terms of the definition in full: the following consolidated and abbreviated form of the definition will suffice to convey its principal elements:

“Administrative action means any decision of an administrative nature made . . . under an empowering provision [and] taken . . . by an organ of State, when exercising a power in terms of the Constitution or a provincial constitution, or exercising a public power or performing a public function in terms of any legislation, or [taken by] a natural or juristic person, other than an organ of State, when exercising a public power or performing a public function in terms of an empowering provision, which adversely affects the rights of any person and which has a direct, external legal effect. . . .”

[22] At the core of the definition of administrative action is the idea of action (a decision) “of an administrative nature” taken by a public body or functionary. Some pointers to what that encompasses are to be had from the various qualifications that surround the definition but it also falls to be construed consistently, wherever possible, with the meaning that has been attributed to administrative action as the term is used in s 33 of the Constitution (from which PAJA originates) so as to avoid constitutional invalidity.’

[26] Nugent JA then proceeded to consider the meaning of the qualifications that, for a decision to be an administrative action, it must also adversely affect rights and have a direct, external legal effect. He held in this regard:16

‘While PAJA's definition purports to restrict administrative action to decisions that, as a fact, “adversely affect the rights of any person”, I do not think that literal meaning could have been intended. For administrative action to be characterised by its effect in particular cases (either beneficial or adverse) seems to me to be paradoxical and also finds no support from the construction that has until now been placed on s 33 of the Constitution. Moreover, that literal construction would be inconsonant with s 3(1), which envisages that administrative action might or might not affect rights adversely. The qualification, particularly when seen in conjunction with the requirement that it must have a “direct and external legal effect”, was probably intended rather to convey that administrative action is action that has the capacity to affect legal rights, the two qualifications in tandem serving to emphasise that administrative action impacts directly and immediately on individuals.’

[27] The decision not to promote the applicant was a decision taken by an organ of State exercising a public power in terms of a statute: s 2 of the Correctional Services Act 111 of 1998 provides that the purpose of the correctional system established by the Act is to ‘contribute to maintaining and protecting a just, peaceful and safe society’ by ‘enforcing sentences of the courts in the manner prescribed by this Act’, by ‘detaining all prisoners in safe custody whilst ensuring their human dignity’ and by ‘promoting the social responsibility and human development of all prisoners and persons subject to community corrections’. Secondly, s 3(5)(g) vests in the second respondent the power to ‘appoint, remunerate, promote, transfer, discipline or dismiss correctional officials in accordance with this Act, the Labour Relations Act and the Public Service Act’. Self- evidently, the purpose of these powers is to achieve the public purposes enumerated in s 2: when taken together these sections of the Act make it clear that decisions such as whether or not to promote an employee such as the applicant are to be made in the furtherance of the public interest.17 Such a decision is a decision of an administrative nature because it concerns the bureaucratic management of the Department.18

[28] As far as the remaining qualifications to the definition of administrative action are concerned, none of the exclusions apply and the decision not to promote the applicant certainly had the potential to affect his rights to fair labour practices and equality, to name but two fundamental rights that would or could be affected if the decision not to promote him was found to be invalid.19 It also had a real, direct and immediate impact on him, in the sense that he was not paid at a higher rate, he did not receive the privileges and perks of a promotion to the post level of Director and he remained at the same post level he has occupied for some time while others have, as he stated in his grievance, passed him in the Department’s hierarchy. I conclude then that the decision not to promote the applicant was an administrative action for purposes of the PAJA.

[29] Transnet Ltd v Goodman Brothers (Pty) Ltd20 concerned whether the respondent had a right to reasons for a tender being rejected. The provision that then applied, prior to the commencement of the PAJA, but after the final Constitution came into operation, was item 23(2)(b) of Schedule 6 of the Constitution, which was in essence s 24 of the interim Constitution with minor stylistic changes. This provision granted a fundamental right to reasons for administrative action that affected any of a person’s ‘rights or interests’. In construing this provision, Schutz JA held that a valid approach to its interpretation was that because ‘the tenderer has the rights to lawful and procedurally fair administrative action provided for in paras (a) and (b)’ of item 23(2)(b) of Schedule 6, the ‘rejection of a tender affects these rights and they are protected by para (c)’.21 He proceeded to hold on the issue of whether the respondent’s rights were affected that ‘[w]ithout reasons Goodman is deprived of the opportunity, to which he is entitled, to consider further action’:22

[30] Olivier JA, in a judgment that reached the same conclusion as that of Schutz JA, held that the right that had been affected was the right to equality. He stated:23

‘[41] One of the most fundamental rights guaranteed in our Bill of Rights appears in s 9. It is the right to equality: “Everyone is equal before the law and has the right to equal protection and benefit of the law . . .” (ss (1)). “Equality includes the full and equal enjoyment of all rights and freedoms . . .” (ss (2)). Subsection (4) further provides that “[no] person may unfairly discriminate directly or indirectly against anyone on one or more . . .” of the grounds set out in ss (3).

[42] One need hardly look further for a more obvious fundamental right which justifies the application of s 33 of the Constitution to the present case. The right to equal treatment pervades the whole field of administrative law, where the opportunity for nepotism and unfair discrimination lurks in every dark corner. How can such right be protected other than by insisting that reasons be given for an adverse decision? It is cynical to say to an individual: you have a constitutional right to equal treatment, but you are not allowed to know whether you have been treated equally. The right to be furnished with reasons for an administrative decision is the bulwark of the right to just administrative action.’

[31] As the right to reasons is intended to make judicial review effective, it can also be said that the right affected is the right of access to court entrenched in s 34 of the Constitution: without reasons for an administrative action, an affected person is not able adequately to consider whether he or she should challenge it by way of review.24 It is also evident that the applicant, without reasons, cannot determine whether he was the victim of an unfair labour practice, in violation of the fundamental right to fair labour practices entrenched in s 23(1) of the Constitution.

[32] I conclude, on the basis of what has been set out above, that the applicant’s rights to equality, to just administrative action, to access to court and to fair labour practices have been materially and adversely affected by the administrative action concerned. The applicant has therefore established that he was entitled to be furnished with reasons for the decision not to promote him. The argument raised by the respondents that they are not obliged to furnish the applicant with reasons is accordingly rejected. The next issue that must now be dealt with is whether the respondents have, in fact, furnished reasons for the decision not to promote the applicant. I turn now to that issue.

(3) Has the Applicant Been Given Reasons?

[33] The respondents have argued, in the alternative to the argument that they are not obliged to furnish the applicant with reasons, that they have, in any event, furnished him with reasons. Those reasons, they say, are contained in two documents: the letter in which the applicant was informed that his application for promotion had been unsuccessful and the response to his grievance.

[34] In the first document, the applicant was thanked for his application, regret was expressed that his application had been unsuccessful, he was thanked for the ‘interest shown in the post’ and he was wished ‘every success’ with his ‘future career’. The second document stated that the only way an employee of the Department could be promoted was by applying successfully for a higher post that had been advertised, that candidates, to be considered for promotion, had to possess the minimum requirements for the post and that in the selection process ‘it is an unfortunate reality that an applicant has to compete against other deserving candidates. In the process qualifications, relevant work and managerial experience and the profile of the candidate are considered’. This document also stated that there was no evidence that an unfair labour practice had been committed against the applicant, that he was not ‘the only employee in this situation’ and that there were, in fact, ‘many other employees in a similar situation’. He was advised to ‘keep on trying’.

[35] In order to determine whether these documents do, indeed, contain a statement of reasons, it is necessary first to determine what purpose reasons serve and what constitutes a reason.

[36] In a passage that has been cited with approval by courts interpreting the fundamental right to reasons, Professor Baxter set out the importance of reasons in the administrative process as follows:25

‘In the first place, a duty to give reasons entails a duty to rationalize the decision. Reasons therefore help to structure the exercise of discretion, and the necessity of explaining why a decision is reached requires one to address one’s mind to the decisional referents which ought to be taken into account. Secondly, furnishing reasons satisfies an important desire on the part of the affected individual to know why a decision was reached. This is not only fair: it is also conducive to public confidence in the administrative decision-making process. Thirdly – and probably a major reason for the reluctance to give reasons – rational criticism of a decision may only be made when the reasons for it are known. This subjects the administration to public scrutiny and it also provides an important basis for appeal or review. Finally, reasons may serve a genuine educative purpose, for example where an applicant has been refused on grounds that he or she is able to correct for the purpose of future applications.’

[37] There is, in addition, a close relationship between the furnishing of reasons for official decisions and the rule of law which is a founding value of our Constitution. In Mphahlele v First National Bank of SA Ltd26 Goldstone J held, albeit in the context of judicial decision-making, that the furnishing of reasons serves as a safeguard against arbitrariness and as a mechanism for accountability. The same holds true, in my view, for the furnishing of reasons for administrative action.

[38] A reason is defined in the Concise Oxford English Dictionary as ‘a cause, explanation or justification’. This meaning is in harmony with the specialised meaning attributed to the word in administrative law. Reasons are constituted by the decision-maker’s ‘explanations as to why it settles upon its final choice’27 or, put in slightly different terms, reasons are ‘statements which explain why certain action has been taken’.28 These definitions are a distillation of the case law.29

[39] Can it be said that the content of the two documents relied upon by the respondents constitute reasons? In my view, they do not. The first, the letter to the applicant informing him that his application for promotion was unsuccessful, contains nothing that can even vaguely be considered to be a reason. It informed him of the result of his application, without furnishing any explanation as to how that result was arrived at.

[40] The second document, the response to the applicant’s grievance, does little more than inform him that he was one of a number of employees who qualified for promotion but that he, like many others, was unsuccessful in his application for promotion. While this document informed him of the type of factors that were considered, it did not state how he fared in relation to those factors and why he was considered to be less suitable than the person who was promoted. It too does not give him an explanation -- a justification -- for the conclusion that someone else was more deserving of promotion than him. He remained, after receipt of this document, in the dark as to why he was not promoted. He does not know if the decision was a proper one, what factors weighed against him and why, whether the decision is open to challenge and what he has to do, if it was a proper decision, to be promoted when the next suitable post is advertised.

[41] Mr Wolmarans argued that the applicant could not be informed of the reasons for the decision not to promote him because this was privileged information. He was unable to explain the basis of the alleged privilege and I am sure that there is none. It seems to me, however, that he was confusing the reasons for the decision, on the one hand, and the information that had been supplied to the respondents, on the other, which may have included some personal information concerning other applicants for promotion. Once this distinction is understood, and once it is understood that reasons are the explanation for the decision, it will be abundantly clear that the respondents’ concerns about privileged information being divulged are groundless, and that nothing stands in the way of them complying with their constitutional obligation to furnish the applicant with adequate reasons in writing for the decision not to promote him.30

[D] CONCLUSION

[42] In summary, I have found that the applicant has established that he was entitled to the reasons that he requested and that he has not been furnished with such reasons.

[43] I make the following order.

(a) The respondents are hereby directed to furnish the applicant with written reasons for the decision not to promote the applicant to the post of Area Commissioner at the post level of Director (with reference number S6509/20), and to do so within 30 days of the service of this order.

(b) The respondents are directed to pay the costs of the application jointly and severally, the one paying, the other to be absolved.

(c) Leave is granted to the applicant to serve this order on the respondents care of the State Attorney, 29 Western Road, Central, Port Elizabeth.

___________________________

C. PLASKET

JUDGE OF THE HIGH COURT

1 For a discussion on the distinction between reasons and information, see Hoexter The New Constitutional and Administrative Law (Vol 2: Administrative Law) Cape Town, Juta and Co: 2002, 243-244 (hereafter referred to as Hoexter).

2 Reed and others v Master of the High Court of South Africa and others [2005] 2 All SA 429 (E) para 19; Ntame v MEC for Social Development and two similar cases 2005 (6) SA 248 (SE), para 30.

3 [2004] ZACC 15; 2004 (4) SA 490 (CC); 2004 (7) BCLR 687 (CC), para 25.

4 S v Zuma and others [1995] ZACC 1; 1995 (2) SA 642 (CC); 1995 (4) BCLR 401 (CC), paras 14-15; S v Makwanyane and another [1995] ZACC 3; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC), paras 9-10 and 100; Soobramoney v Minister of Health, KwaZulu-Natal [1997] ZACC 17; 1998 (1) SA 765 (CC); 1997 (12) BCLR 1696 (CC), paras 16-17.

5 2006 (2) SA 311 (CC); 2006 (1) BCLR 1 (CC), para 118.

6 See too the judgment of Ngcobo J in the same case at para 446.

7 Grey’s Marine Hout Bay (Pty) Ltd and others v Minister of Public Works and others [2005] ZASCA 43; 2005 (6) SA 313 (SCA), para 22.

8 See Hoexter ‘The Current State of South African Administrative Law’ in Corder and Van Der Vijver (eds) Realising Administrative Justice Cape Town, Siber Ink: 2002, 20, 22, who says: ‘Thanks to the presence of a democratic Constitution, our public law – and more specifically, our administrative law – is now imbued with democratic principles, including those of accountability and participation. As far as the Bill of Rights is concerned, this is achieved largely in ss32, 33 and 34.’ See too Turpin British Government and the Constitution London, Butterworths: 1999, 80 who says: ‘Accountability is a liability or obligation attaching to those invested with public powers or duties. Its primary ingredient is an obligation to explain and justify decisions made or action taken.’ He also says: ‘We can find in accountability a link with democracy, in that those elected by the people to govern are given power not for their own ends but for the public good; and a link with the rule of law, which demands that the grantee of a power should not exceed the legal limits of his authority.’

9 In the interpretation of the Bill of Rights, courts are required by s 39(1) of the Constitution to ‘promote the values that underlie an open and democratic society based on human dignity, equality and freedom’, they ‘must consider international law’ and they ‘may consider foreign law’. Similarly, when interpreting legislation, courts ‘must promote the spirit, purport and objects of the Bill of Rights’. For a comparative survey of the development of the duty to give reasons in foreign, democratic systems, see Plasket The Fundamental Right to Just Administrative Action: Judicial Review of Administrative Action in the Democratic South Africa unpublished PhD Thesis, Rhodes University: 2002, 470-475.

10 In Siemens Engineering Company v Union of India AIR 1976 SC 1785, 1789, Bhagwati J captured this idea eloquently when he held that the requirement of reason-giving ‘is, like the principle of audi alteram partem, a basic principle of natural justice which must inform every quasi-judicial process and this rule must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirement of law’. (This dictum is quoted from Takwani Lectures on Administrative Law (3 ed) Lucknow, Eastern Book Company: 1998, 175.)

11 Sorabjee ‘Obliging Government to Control Itself: Recent Developments in Indian Administrative Law’ [1994] Public Law 39, 44. Indian administrative law is particularly useful because the duty to give reasons for administrative action is well-developed. Soon after the Constitution of 1947 came into effect, the courts developed a general duty to give reasons. There has been a trend towards a more general duty to give reasons in a number of democratic states in recent years, to the point where the giving of reasons is sometimes referred to as a third leg of natural justice. See Takwani, op cit, 171

12 Mureinik ‘A Bridge to Where? Introducing the Interim Bill of Rights’ (1994) 10 South African Journal of Human Rights 31, 32.

13 Constitution, s 195(1).

14 Hoexter, 252.

15 [2005] ZASCA 43; 2005 (6) SA 313 (SCA), paras 21-22.

16 Para 23.

17 See Police and Prisons Civil Rights Union and others v Minister of Correctional Services and others [2006] 2 All SA 175 (E), para 54.

18 See Grey’s Marine Hout Bay (Pty) Ltd and others v Minister of Public Works and others supra, para 24 in which Nugent JA stated: ‘Administrative action is rather in general terms, the conduct of the bureaucracy (whoever the bureaucratic functionary might be) in carrying out the daily functions of the State, which necessarily involve the application of policy, usually after its translation into law, with direct and immediate consequences for individuals or groups of individuals’.

19 There is some circularity in this rather abstract approach to the issue of whether a right has been affected by the administrative action. That, unfortunately, is the price to be paid for a definition that defines whether an action is an administrative action by its effect, rather than by its nature. It is, however, the lesser of two evils because the contrary, more literal, approach would undermine, rather than promote administrative justice. On such an approach, in order to determine whether the action complained of affected rights and was thus administrative action, one would first have to determine whether the action complained of was invalid because of the presence of a reviewable irregularity. If it was, then the action would be administrative action because the right to just administrative action had been violated by it. If it was not liable to be set aside on review, it would not be administrative action because it did not adversely affect rights. Clearly, such an approach is untenable and illogical because it would mean that only invalid actions would be considered to be administrative actions as defined in the PAJA while valid actions would not be administrative actions as defined in the PAJA.

20 [2000] ZASCA 151; 2001 (1) SA 853 (SCA).

21 Para 11 of the judgment of Schutz JA (at 871F-G).

22 Para 12 of the judgment of Schutz JA (at 871G-H).

23 Paras 41-42 of the judgment of Olivier JA (at 867E-G). Section 9(4) of the Constitution was misquoted in para 41 of the judgment. I have corrected the error where I have quoted para 41.

24 See generally, Sorabjee ‘Obliging Government to Control Itself: Recent Developments in Indian Administrative Law’ [1994] Public Law 39, 42-44.

25 Administrative Law Cape Town, Juta and Co: 1984, 228. This passage has been cited with approval in Transnet Ltd v Goodman Brothers (Pty) Ltd supra, para 5 of the judgment of Schutz JA (at 869I-870B); Pascoal v Voorsitter van die Drankraad NO en andere [1997] 2 All SA 504 (NC), 506j-507b; Nomala v Permanent Secretary, Department of Welfare, Eastern Cape Provincial Government and another 2001 (8) BCLR 844 (E), 854C-D. See too Commissioner, South African Police Service and others v Maimela and another 2003 (5) SA 480 (T), 485G-J. See further, Hoexter, 245-247.

26 [1999] ZACC 1; 1999 (2) SA 667 (CC); 1999 (3) BCLR 253 (CC), para 12.

27 Baxter, op cit, 229.

28 Hoexter, 242.

29 See for instance, Sachs v Minister of Justice; Diamond v Minister of Justice 1934 AD 11, 40; Nkondo and others v Minister of Law and Order and another; Gumede and others v Minister of Law and Order and another; Minister of Law and Order v Gumede and others 1986 (2) SA 756 (A), 772H-773I, 775B, 775J-776B; Nomala v Permanent Secretary, Department of Welfare, Eastern Cape Provincial Government and another supra, 854B-855D..

30 For a useful explanation of the difference between information and reasons, see Hoexter, 242-244.