STUDY UNIT 7

Question 1

PURPOSE FOR REASONS (KOYABE v MINISTER OF HOME AFFAIRS):

Answer 1

is to justify administrative action, advance the constitutional requirements of fairness, accountability and transparency.

Question 2

BEFORE THE CONSTITUTIONAL ERA, BAXTER EMPHASIZED THE IMPORTANCE OF REASONS AS FOLLOWS:

Answer 2

1. A duty to give reasons entails a duty to rationalise the decision
2. if the decision-maker knows that reasons may be requested, it forces him to consider those reasons in making the decision
3. rational criticism of a decision can only be made when the reason for it are known
4. May increase the public confidence in governance decisions
5. Reasons may serve a genuine educative purpose.

Question 3

WHAT ARE REASONS?

Answer 3

Reasons are the explanation for a decision.

Question 4

WHAT ARE FINDINGS?

Answer 4

Findings are findings of fact or law which are essential background to a decision but that are not in themselves complete explanation for it.

Question 5

SECTION 5 OF PAJA:

Answer 5

SECTION 5(1)- 90 days for the affected person to request reasons
SECTION 5(2)- 90 days for the administrator to provide adequate written reasons
SECTION 5(3)- the failure of the administrator to provide adequate written reasons
SECTION 5(4)- departure from providing reasons, if it is reasonable and justifiable
SECTION 5(5)- different but fair procedure empowered by an empowering provision.

Question 6

WHO MAY REQUEST REASONS?

Answer 6

Section 33(2) of the Constitution applies the right to everyone whose rights have been adversely affected by the administrative action.
Section 5 applies the right to any person whose pre-existing rights have been adversely affected by the administrative action.

Question 7

ORAL REASONS:

Answer 7

Oral reasons will not suffice.

Question 8

THE REQUEST MUST BE:

Answer 8

the request must be in writing and provided to the administrator concerned by fax, post, email or delivered by hand

Question 9

SECTION 9 OF PAJA:

Answer 9

provided that the 90-day period may be extended to a fixed period on agreement by the parties or by a court or tribunal upon request of either party.

Question 10

SECTION 5(4) FACTORS:

Answer 10

1. the objects of the empowering provision
2. the nature, purpose and likely effect of the administrative action concerned
3. the nature and the extent of the departure
4. the relation between the departure and its purpose
5. the importance of the purpose of the departure
6. the need to promote an efficient administration and good governance.

Question 11

PREREQUISITES FOR ADEQUATE REASONS:

Answer 11

1. the reasons must contain the statement of decision
2. administrator’s findings of the facts, must be provided
3. the reasons must not be merely reiteration of the empowering provision
4. the reasons must be worded in clear and unambiguous language
5. reasons must be intelligible and informative from the outset, not only by benefit of hindsight
6. reasons must be of appropriate length and level of detail.