Procedural fairness, executive decision-making and the rule of law

AuthorPlasket, C.
Citation(2020) 137 SALJ 698
Published date27 November 2020
Date27 November 2020
Pages698-712
698
PROCEDURAL FAIRNESS, EXECUTIVE
DECISION-MAKING AND THE RULE OF LAW
CLIVE PLASKET
Judge of the Supreme Court of Appeal;
Honorary Visiting Professor, Rhodes University
The connection between procedural fairness and the rule of law was assumed to be
trite until the majority judgment in Masetlha v President of the Republic of
South Afr ica & another2008 (1) SA 566 (CC). It held that procedural fairness
was not part of the rule of law, being a doctrine that only applied in administrative
decision-making, and that it was inappropriate to ‘constrain executive power to
requirements of p rocedural fairness’. In Albutt v Cent re for the Study of Violence
and Reconciliation & others2010 (3) SA 293 (CC) an attempt was made to
undo some of the damage that had been caused by Masetlha (short of overruling it)
by holding that in some c ases, in order to take a rational decision, the decision-m aker
was required to hear aected parties. In terms of Albutt, however, the right to a
hearing was the exception, rather than the default position. This article argues that
the majority decision in Masetlha is wrong and should be overruled, and that the
Albutt exce ption is very much a second- best alternative to a proper r ight to procedural
fairness — to a recognition that procedural fairness is part of the rule of law and
that executive decision-makers, as is the case with everyone else who has to decide
anything, are required to act fairly.
Rule of law – procedu ral fairness – MasethlaAlbutt
I INTRODUCTION
It is probably tr ue to say that few people saw it coming. It had be en assumed
by most public lawyers that procedural fairness was a component of the
rule of law, one of the founding values of the South African Constitution.
Then, in Masetlha v President of the Republic of South Africa & another,1 a
majority of the Constitutional Court held that procedural fairness was
not part of the rule of law, but only a rule that applied to the review
of administrative action. The majority went further, holding that in any
event, it was inappropriate to ‘constrain executive power to requirements
of procedural fairness’.2 In the later case of Albutt v Centre for the Study of
Violence and Reconciliation & others,3 however, the Constitutional Court,
while not overr uling Masetlha, clawed back some of t he lost ground. It did
so by holding that in some cases, in order for an executive decision-maker
to act rationally — and thus in compliance with the rule of law4 — he or
BA LLB LLM (Nata l) PhD (Rhodes).
2 Ibid para 77.
4Pharmaceutical Manufacturers Association of SA: In re ex parte President of the
Republic of South Africa & others2000 (2) SA 674 (CC) para 85.
(2020) 137 SALJ 698
© Juta and Company (Pty) Ltd

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