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

• Author: Plasket, C.
• Published date: 27 November 2020
• Date: 27 November 2020
• Pages: 698-712

698

PROCEDURAL FAIRNESS, EXECUTIVE

DECISION-MAKING AND THE RULE OF LAW

CLIVE PL ASKET†

Judge of the Supreme Cou rt of Appeal;

Honorary Visiting P rofessor, Rhodes University

The connec tion between procedu ral fairness and the r ule of law was assumed to b e

trite until the majo rity judgment in Ma setlha v Pres ident of the Republic of

South Afr ica & another 2008 (1) SA 566 (CC). It held that procedural fairness

was not part of the r ule of law, being a doctr ine that only applied in ad ministrative

decision-m aking, and that it was in appropriate to ‘c onstrain executive pow er to

requirements of p rocedural fairness’. In Albutt v Cent re for the Study of Violence

and Reconcil iation & others 2010 (3) SA 293 (CC) an attempt was m ade to

undo some of the damag e that had been caused by M asetlha (short of ove rruling it)

by holding that in some c ases, in order to take a rational decisi on, the decision-m aker

was required to hear a ected parties. I n terms of Albut t, however, the right to a

hearing was th e exception, rather th an the default position. T his article argu es that

the majority dec ision in Masetlh a is wrong and should be ove rruled, and that the

Albutt exce ption is very much a second- best alternative to a proper r ight to procedural

fairness — to a reco gnition that procedural fai rness is part of the r ule of law and

that executive dec ision-maker s, as is the case with e veryone else who ha s to decide

anything, are required t o act fairly.

Rule of law – procedu ral fairness – M asethla – Albutt

I IN TRO DUCT ION

It is probably tr ue to say that few people saw it coming. It had be en assumed

by most public lawyer s that procedura l fair ness was a component of the

rule of law, one of the foundi ng values of the South A frican Con stitution.

Then, in Masetlha v P resident of the Republic o f South Africa & anothe r,1 a

majority of t he Constitution al Court held th at procedural fa irness wa s

not part of the r ule of law, but only a rule th at applied to the review

of admin istrative ac tion. The majorit y went further, holdi ng that in any

event, it was inappropr iate to ‘constrai n executive power to require ments

of procedural f airnes s’.2 In the later ca se of Albutt v Centre for the Study of

Violence and Re conciliation & others,3 however, the Con stitutiona l Court,

while not overr uling Masetlha, clawed back some of t he lost ground. It did

so by holding th at in some cases, i n order for an executive decis ion-maker

to act rationa lly — and thus i n compliance wit h the rule of law4 — he or

† BA LLB LLM (Nata l) PhD (Rhodes).

1 2008 (1) SA 566 (CC).

2 Ibid para 77.

3 2010 (3) SA 293 (CC).

4 Pharmace utical Manufactu rers Association o f SA: In re ex parte Pre sident of the

Republic of So uth Africa & other s 2000 (2) SA 674 (CC) para 85.

(2020) 137 SALJ 698

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