Procedural Fairness Flashcards
(57 cards)
What section of the Constitution guarantees the right to lawful, reasonable, and procedurally fair administrative action?
Section 33(1) of the 1996 Constitution.
What does Section 33(2) of the Constitution provide?
The right to be given written reasons when rights are adversely affected by administrative action.
Which three legal sources determine the content of the right to procedural fairness?
Common law, PAJA, and judicial decisions.
What are the two key common law principles of natural justice?
Audi alteram partem (hear the other side) and nemo iudex in sua causa (no one may be a judge in his own cause).
What does audi alteram partem ensure in administrative procedures?
Opportunity to be heard, notice, legal representation, evidence, cross-examination, and public hearing.
What does nemo iudex in sua causa prohibit?
Bias, partiality, or prejudice in decision-making.
Which PAJA section addresses bias in administrative action?
Section 6(2)(a)(iii).
Which PAJA section codifies the audi alteram partem rule for individuals?
Section 3.
Which PAJA section deals with public participation (audi rule for the public)?
Section 4.
Which PAJA section gives individuals the right to written reasons for administrative decisions?
Section 5.
When does PAJA not apply to a power?
When the power exercised is private in nature.
What are three core components of the audi alteram partem principle?
- Opportunity to be heard
- Proper notice
- Right to be informed of opposing considerations.
What are six elements of the opportunity to be heard?
- Proper notice
- Reasonable and timely notice
- Personal appearance
- Legal representation
- Evidence/cross-examination
- Public hearing.
Is there an absolute right to legal representation under PAJA?
No, it’s at the discretion of the administrator under Section 3(3)(a).
Must an individual be informed of the policy relied upon in decision-making?
Yes, failure to do so is administratively unfair.
What does Section 3(3) of PAJA provide regarding appearance and representation?
Allows for oral or written submissions and discretionary legal representation.
Does common law guarantee a public hearing?
No, but openness, transparency, and fairness are emphasized.
What did the court hold in Turner v Jockey Club regarding timely notice?
That more serious or complex issues require longer, reasonable notice to ensure fairness.
What is a key difference between common law and PAJA regarding procedural fairness?
Common law applies to private powers, while PAJA only applies when public powers are exercised.
Does PAJA apply to disciplinary actions by domestic tribunals?
No, because these exercises of power are considered private in nature.
Under common law, are public hearings guaranteed in administrative processes?
No, there is no absolute right, but transparency and openness are valued.
Under PAJA, when can legal representation be requested?
Where the nature of the hearing requires it for fairness, and the administrator has discretion.
What section of the Constitution guarantees the right to lawful, reasonable, and procedurally fair administrative action?
Section 33(1) of the 1996 Constitution.
What does Section 33(2) of the Constitution provide?
The right to be given written reasons when rights are adversely affected by administrative action.
