The right to be heard  - worth the delay? A critical examination of public participation’s role in the efficiency of administrative action in democratic South Africa

Halley, Telana Deslin

The right to be heard - worth the delay? A critical examination of public participation’s role in the efficiency of administrative action in democratic South Africa

Master Thesis

2014

Publisher

University of Cape Town

Department

Department of Public Law

Faculty

Faculty of Law

Abstract

“Section 4 in the Promotion of Administrative Justice Act 3 of 2000 (the PAJA) is a great achievement for South African administrative law, and its very presence in the PAJA is likely to have a positive effect on the rate and quality of participation in administrative decision-making. Despite the accuracy of this statement, how costly is public participation to efficient administrative action? In terms of section 4 of the PAJA, in cases where an administrative action materially and adversely affects the rights of the public, to give effect to the right to procedurally fair administrative action, an administrator, must decide whether to hold a public inquiry, follow a notice and comment procedure, follow both a public inquiry and notice and comment procedure, or where an administrator is empowered by any empowering provision, follow a procedure which is fair but different or to follow any procedure that gives effect to section 3 of the PAJA. However, if reasonable and justifiable in the circumstances, an administrator may depart from the requirement to involve the public in the administrative decision. In determining whether a departure from the public participation procedure is reasonable and justifiable, several factors must be taken in account; one such factor is the need to promote an efficient administration and good governance. To what degree should the public accept this departure? The PAJA’s preamble sets out its purpose, which is to promote an efficient administration and good governance, and create a culture of accountability, openness and transparency in the public administration. It can thus be said that an efficient administration is an important aspect of just administrative action. This paper considers the instances where public bodies departed from the requirements of section 4 of the PAJA through a proper assessment of case law and case studies. It considers practical examples of administrative action by South African public entities and instances where the public participation process affected the efficiency of the administrator and the consequences thereof. This paper seeks to answer the question ‘Why is creating a culture of transparency and public participation so important to lawful, reasonable and procedural fair administrative action?’

Description

Includes bibliographical references.

Keywords

Public Law

Reference:

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Masters

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