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VOICES: A community in Pursuit of Just Administrative Action

Herein below is a preliminary view on the rights and recourse that have been triggered by the events that have unfolded over the past few weeks and culminated in the community submitting a memorandum of demands to the Mayor of the SPM; in response to amongst other things; the High Electricity Tariffs and the impending implementation of the R260.00 availability fee as of the 1st July 2018.

As a point of departure, I deem it necessary to commend not only Tumelo Mosikare but each and every responsible member of the community who participated in the protest and or ensured that the protest of was peaceful and effective. Today was symbolic of what we can achieve as a collective and will certainly inspire a greater sense of activism within our community.

1. This paper seeks to explore the Constitutional right to Just Administrative Action as enshrined in Section 33; which promotes efficient administration and good governance by Municipalities when discharging its responsibilities towards members of the community. Equally important, the paper addresses albeit in summation the implications of non-compliance with applicable legislation. Some of the salient features of our Constitution are the following;

1. The Constitution is the supreme law of the country. 
2. We must respect and uphold the rule of law.
3. That the Constitution binds the judiciary, executive, legislature and all organs of 
State (which includes municipalities)

2. The foregoing aspects of our constitutional democracy are of particular significance in that they afford members of the community rights and a measure of protection from unlawful conduct not only by members of the community but even the state itself. The Municipality is tasked with great responsibilities to provide basic services to the community amongst other things and the decision they make have a great bearing on the living conditions of the community which they lead. Fortunately, the Constitution is alive to the susceptibility of ordinary members of the community to capricious decisions.

3. The events that have unfolded over the past few weeks within Kimberley have triggered the relevance of Just Administrative Action as a Constitutional Right. Section 33 of the constitution provides as follows:

(1) Everyone has the right to administrative action that is lawful, reasonable and procedurally fair. 
(2) Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons. (3) National legislation must be enacted to give effect to these rights, and must—
(a) provide for the review of administrative action by a court or, where appropriate, an independent and
impartial tribunal;
(b) impose a duty on the state to give effect to the rights in subsections (1) and (2); and (c) promote an efficient administration.

4. The empowering legislation commonly referred to as the PAJA further defines an administrative action as follows:

1. Any decision taken or any failure to take a decision by an organ of state when exercising a power in terms of the Constitution or provincial constitution or;

2. Exercising a public power or performing a public function in terms of any legislation

It follows that, the proposed availability charge of R260.00 and tariff structure, constitutes an administrative decision and therefore is subject to the legislative prescripts of the Paja.

5. The provisions of Section 151 and 152 of the Constitution, refer to municipalities as a sphere of local government; and further empowers Municipalities to ensure the provision of services like water and electricity to the communities in a sustainable manner. Section 154 of the constitution provides that a municipality must manage its administration and budgeting and planning processes to give priority to the basic needs of the community and to promote the social and economic development of the community. In discharging its constitutional mandate, the municipality must comply with inter alia with Section 3 and 4 of the PAJA which provides as follows:

3. Procedurally fair administrative action affecting any person.

(1) Administrative action which materially and adversely affects the rights or legitimate expectations of any person must be procedurally fair.

(2) (a) A fair administrative procedure depends on the circumstances of each case. 
(b) in order to give effect to the right to procedurally fair administrative action, an 
administrator, subject to subsection 4, must give a person referred to in subsection (1) 
(i) Adequate notice of the nature and purpose of the proposed administrative action;
(ii) A reasonable opportunity to make representations; 
(iii) A clear statement of the administrative action; 
(iv) Adequate notice of any right of review or internal appeal, where applicable, and 
(v) Adequate notice of the right to request reasons in terms of Section 1

(3) In order to give effect to the right to procedurally fair administrative action, an administrator may, in his or her or its discretion, also give a person referred to in subsection (1) an opportunity to- 
(a) obtain assistance and, in serious or complex cases, legal representation; 
(b) present and dispute information and arguments; and 
(c) appear in person.

4. Administrative action affecting public 
(1) In cases where an administrative action materially and adversely affects the rights of the public, an administrator, in order to give effect to the right to procedurally fair administrative action, must decide whether-
a) to hold a public inquiry in terms of subsection (2); 
b) to follow a notice and comment procedure in terms of subsection (3)
c) to follow the procedures in both subsection (2) and (3)
d) where the administrator is empowered by an empowering provision to follow a procedure that is fair but different, to follow that procedure; or 
e) to follow another appropriate procedure which gives effect to section 3

6. In instances where a municipality fails to comply with the provisions of the paja when making decisions; Section 6 makes provision for Judicial Review of administrative action through the courts;

(1) Any person may institute proceedings in a court or a tribunal for the judicial review of an administrative action. 
(2) A court or tribunal has the power to judicially review an administrative action if- 
(a) The administrator who took it 
(i) Was no authorized to do so by the empowering provision; 
(ii) Acted under a delegation of power which was not authorized by the empowering provision; or 
(iii) Was biased or reasonably suspected of bias; 
(b) A mandatory or procedure or condition prescribed by an empowering provision was not complied with; 
(c) The action was procedurally unfair; 
(d) The action was materially influenced by an error of law; 
(e) The action was taken- 
(i) For a reason not authorized by the empowering provision; 
(ii) For an ulterior purpose or motive; 
(iii) Because irrelevant considerations were taken into account or relevant considerations were not considered; 
(iv) Because of the unauthorized or unwarranted dictates of another person or body; 
(v) In bad faith; or 
(vi) Arbitrarily or capriciously; 
(f) The action itself- 
(i) Contravenes a law or is not authorized by the empowering provision; or 
(ii) Is not rationally connected to – 
(aa) the purpose for which it was taken; 
(bb) the purpose of the empowering provision; 
(cc) the information before the administrator; or 
(dd) the reasons given for it by the administrator; 
(g) the action concerned consists of a failure to take a decision; 
(h) the exercise of the power or performance of the function authorized by the empowering provision, in pursuance of which the administrative action was purportedly taken, is so unreasonable that no reasonable person could have so exercised the power or performed the function; 
(i) the action is otherwise unconstitutional or unlawful.

7. Section 8 of the PAJA provides the remedies that are available to members of the public in instances where municipalities act in a manner that is inconsistent with the PAJA: 
8. Remedies in proceedings for judicial review
(1) The court or tribunal, in proceedings for judicial review in terms of section 6(1), may grant any order that is just and equitable, including orders – 
(a) Directing an administrator- 
(i)to give reasons; or 
(ii) to act in a manner the court or tribunal requires; 
(b) Prohibiting the administrator from acting in a particular manner; 
(c) Setting aside the administrative action and 
(i)remitting the matter for reconsideration by the administrator, with or without directions; or 
(ii)in exceptional cases 
(aa) substituting or varying the administrative action or correcting a defect resulting from the administrative action; or 
(bb) directing the administrator or any other party to the proceedings to pay compensation; 
(d) Declaring the rights of the parties in respect of any matter to which the administrative action relates; 
(e) Granting a temporary interdict or other temporary relief; or 
(f) As to costs. 
(2) The court or tribunal, in proceedings for judicial review in terms of section 6(3), may grant any order that is just and equitable, including orders –
(a) Directing the taking of the decision; 
(b) Declaring the right of the parties in relation to taking of the decision; 
(c) Directing any of the parties to do, or to refrain from doing, any act or thing, or refraining from the doing, of which the court or tribunal considers necessary to do justice between the parties; or 
(d) As to costs.

8. It must be understood that, in as much as the Constitution grants certain powers to Municipalities, the same constitution also determines how that power must be discharged by Municipalities to ensure that the objectives of the Constitution are achieved and in instances whereby Municipalities fail to abide by the Constitution that they have the right to approach the courts to prevent the implementation of that decision. It all sounds good and well to tell people that they have rights, however if they are not able to enforce those rights, then the right itself loses its value. The South African Constitution has been hailed the world over as being one of if not the best constitution in the world. The biggest challenge however is that, the Constitution is an ambitious document and not all rights are guaranteed. For that very reason, the constitution provides for the right to just administrative action and conversely provides for remedies in instances whereby organs of state fail to act consistently with the prescripts of the law.

9. The implication of the above is that, in situations where people are victims of unjust administrative action, must firstly be familiar with the fact that 1. They have a right to just administrative action; 2. That in the event that the municipality makes decisions that are procedurally unfair, they have the right to approach the courts to have the decision reviewed. 3. They would require access to legal representation. Ultimately, the reality of the situation is the disjuncture between the right to just administrative action and the actual enforcement of this right through the review mechanism of the courts devalues the constitutional right to just administrative action.

In order to give meaning to the right to just administrative action, the Municipality itself must respect and uphold the rule of law and the rights of the people it serves, instead of waiting for protests and litigation through the courts.

These views are my own.
Mkhokeli Pino

This story is part of the VOICES section of this website. The views and opinions expressed are those of the authors and do not necessarily reflect the official policy or position of The Kimberley City Info Website or the Webmasters. Any content provided by our readers, bloggers and authors are of their opinion.

Aeon Computer Kimberley

About Mkhokeli Pino

Mkhokeli Gareth Pino is a young lawyer and entrepreneur living and working in Kimberley, South Africa.

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