Free Essay About South African Administrative Law
The main framework of administrative law is structured through the legislation of the Promotion of Administrative Justice Act (PAJA) of 2000, which purpose is to give effect in giving justice to the administrative acts set forth under the Bill of Rights. The main provision of the PAJA is to secure the right of the people to a fair and just administrative acts (The Department of Justice and Constitutional Development of Republic of South Africa, n.d.). The independence of the National Prosecuting Authority was upheld under the PAJA, by virtue of which the prosecuting authority in South Africa repeatedly insists that their decision on whether to prosecute a case or not is beyond the power of judicial review of the court.
It is the contention of this author to disagree with the stand of the National Prosecuting Authority that their power to decide whether or not to prosecute a case is beyond the power of judicial review by the court. While this may be arguably correct that by virtue of the PAJA provision it appears that they have independence in prosecution, it has been emphasized in the precedent case of Kaunda & others v President of the Republic of South Africa & others (Constitutional Court of South Africa, 2004), specifically under paragraph 84, that the decision to institute a prosecution is not subject to judicial review, but the decision not to prosecute is within the scope of judicial review by the court.
An administrative act, by its nature, refers to the actions performed by public authorities in the implementation of the law that can affect the legal rights and freedoms of the citizens (Committee of Ministers of the Council of Europe, 2004). Administrative acts are subject to judicial review under the premise that administrative powers are considered to be statutory. This means that the power is derived from the laws that the high court is frequently called upon to review in order to determine whether the act of an administrative agency is within the lawful limitation provided by the law or may constitute as an ultra vires act (Hawke, 1998).
The principle of judicial review grants the courts the power to declare an administrative act as valid or null and void when it contravenes on what the law dictates (Hogan, 2006). It is the ability of the court to check on the valid exercise of a discretionary power of government or public agencies such as the National Prosecuting Authority. The same ruling has been reiterated by the court in the case of the National Director of Public Prosecutions v Freedom Under Law (Supreme Court of Appeal of South Africa, 2014).
In my opinion, the ruling is quite persuasive considering that the process of prosecution is within the province of the judiciary department. It can be noted that the independence enjoyed by the prosecuting authority is only limited to the institution of a criminal proceeding because prosecutors are given the discretion of exercising a sound judgment in determining the existence of a probable cause. The determination of a probable cause is the primary responsibility of the prosecution and is not considered to be within the level of judicial function by a judge. The institution of a criminal proceeding is therefore dependent upon the prosecution’s recommendation upon the determination of probable cause. It is in this aspect that the prosecutors enjoy independence. However, the decision of the prosecuting authority on not to prosecute may become subject of a judicial review when the reason of such authority is unreasonable and tainted in bad faith (Ramlogan, 2007). The judicial authority has the power to determine whether the prosecuting authority exercised an act based on bias administrative action, unfair procedure and failure to act (Yilmaz, 2013) in prosecuting meritorious cases. The National Prosecuting Authority therefore does not enjoy absolute independence and may be subject to judicial review in its decision not to prosecute a case.
In the case of M v Minister of Home Affairs, Judge Keightley AJ rules that applicant M was denied a fair and valid procedural due process in her application for an asylum in South Africa. The judge held that the applicant was deprived of adequate due process, which is a constitutional guarantee requiring fairness in the administration of justice by following certain legal processes. Procedural due process is defined by Signorelli (2011) as a right to safeguards that are considered to be implicit in the concept of ordered liberty and one that is rooted in the conscience and traditional rights enunciated in the constitution. Due process, by its nature, may be referred to as what is deemed to be reasonable and right. Judge Keightley anchored his argument of ruling favorably on the right of M as qualified for a refugee status under section 3 of the Refugees Act 130 of 1998, and ruled that she was arbitrarily deprived to be accorded with procedural due process that will help determine her entitlement for the refugee status. The ruling also reversed the decision of the Standing Committed on Refugee Affairs (SCRA) for upholding the decision of the Refugee Status Determination Officer (RSDO) and declared the same as unlawful, invalid and unjust.
Based on the antecedent facts, Judge Keightley noted that there were several procedural lapses committed in the processing of the application of M for a refugee status. There are notably several grounds by which the judge clearly identified procedural unfairness accorded to the applicant which this author strongly agrees. First, it can be accounted that during the initial application of M by using the BI-1590 Form, no adequate assistance was provided to her in terms of interpreting the language stated in the form since the applicant’s primary language is Tigrinya, but the interpreter provided for her does not speak the language, but only Amharic. This author recognizes that the Refugee Act adds more meaning to the provision of the PAJA by imposing upon administrative officials the duty of providing competent interpretation to an asylum applicant. This is mandated throughout the whole process of the procedure. This procedure was not adequately observed by the RSDO when the applicant initially commenced her application. The SCRA further did not exert the effort of taking into account certain facts stated in the application form which was used by the RSDO as a ground for denying the application due to inconsistent entries made in the application form. It merely sustained the RSDO’s decision by relying on such ground without personally determining the facts himself to obtain an independent judgment whether the decision of the RSDO is reasonable, fair and just. Because the basis of the denial of the application is due to the inconsistent entries made by the applicant, it is my opinion that the RSDO and SCRA should have exerted more effort in helping the applicant in correcting the entries she made by providing more accurate information with the help of a competent interpreter prior to making an outright denial of her application. It is worth emphasizing that the provision of the Refugee Act of providing competent interpreter provides the necessary safeguards to asylum applicants who are expected not to speak the native South African language. Helping the applicant correct the entries with the assistance of a competent interpreter has a substantive impact in the determination of her qualification as an asylum applicant and it is but just and fair that M should have been accorded with adequate assistance to overcome the language barrier that prevents her from filling up the form more accurately.
Secondly, Judge Keightley noted that the applicant was denied a fair procedural administration when the RSDO and SCRA both deprived the applicant to have an adequate representation and by giving an unclear statement of the procedural administrative action. This author strongly agrees because the administrative procedural due process imposes upon the administrative officials the duty to support with adequate reasons by stating the specific grounds involved when rendering administrative decisions. This is the basic tenet of making the adverse party understand the adjudication of the issues and be able to respond appropriately (Woll, 1963). As what Judge Keightley indicated, the applicant was not sufficiently informed by the RSDO and SCRA about the specific facts and legal basis by which the denial of her application was framed. It is a violation of the basic precept of due process of making the party intelligently understand the nature of the causation of the issues involved in a controversy (Yee, 2004), in this case the denial of M’s asylum application. Giving a partial statement to M is inadequate in meeting the procedural due process requirement which resulted in the negative impact in the review process of her application where M was not given the chance to correct.
Thirdly, the RSDO and SCRA also failed to provide sufficient investigation of the claims stated by the applicant in the application form. This author also agrees because it appears that both administrative bodies merely relied on the statement provided in the form and declared the same as unfounded without actually carrying out an investigation about the actual country conditions from where M came from. Lastly, it has been held that the RSDO and SCRA ignored the fundamental obligation imposed by the International Law on non-refoulement, which is a principle that constitutes the cornerstone of international refugee protection, providing the provision that no contracting state shall return a refugee in whatever manner to the territories where there is a great danger to his life and freedom on the account of his race, religion, nationality, social membership or political ideologies (UNHCR, 2007). The non-refoulement obligation mandates administrative agencies to ensure that administrative decisions will not have an effect of returning an asylum applicant within a territory that can impose danger and hostility against his freedom, life and liberty. Under this premise, I agree that the denial of M’s application for an asylum will subject her to the dangers and threats that the principle of non-refoulement seeks to prevent.
In conclusion, this author noted that the holding of the decisions of Judge Keightley was anchored upon upholding the procedural due process requirement, which is the fundamental rights of every citizen of a country and a constitutional guarantee accorded to individuals to ensure protection against arbitrary, unfair and unjust exercise of discretionary powers of administrative bodies. The exercise of administrative powers is therefore subject to judicial review and in this case, the PAJA provides asylum applicants the right to clarify issues pertaining to administrative actions before the court. It is the view of this author that all acts of administrative bodies should be based on legislative acts or laws and the power of judicial review by the court may be called upon to investigate the reasonableness of the exercise of administrative actions. The doctrine of judicial review is therefore applied in checking whether administrative actions are performed according to the provisions of applicable laws. It is therefore concluded that while administrative agencies enjoy independence, this right is not absolute and judicial review may be called upon to determine whether administrative acts or decisions are performed with due process.
Committee of Ministers of the Council of Europe (2004). The judicial review of administrative acts. France: Council of Europe Publishing.
Constitutional Court of South Africa (2004). Kaunda & others v President of the Republic of South Africa & others. Retrieved from http://www.saflii.org/za/cases/ZACC/2004/5.pdf.
Hawke, N. (1998). Introduction to administrative law. London: Cavendish Publishing Limited.
Hogan, S.O. (2006). The judicial branch of state government: People, process and politics. California: ABC-CLIO, Inc.
Ramlogan, R. (2007). Judicial review in the Commonwealth Carribean. New York: Routledge.
Signorelli, W.P. (2011). Criminal law, procedure and evidence. Florida: CRC Press.
Supreme Court of Appeal of South Africa (2014). National Director of Public Prosecutions v Freedom Under Law. 2014 ZASCA 58. Retrieved from http://politicsweb.co.za/politicsweb/view/politicsweb/en/page71656?oid=595803&sn=Detail&pid=71616.
The Department of Justice and Constitutional Development of Republic of South Africa (n.d.). Promotion of Administrative Justice Act, 2000 (Act 3 of 2000). Retrieved from http://www.justice.gov.za/paja/faq.htm.
UNHCR (2007). Advisory opinion on the extraterritorial application of non-refoulement obligation under the 1951 convention relating to the status of refugees and its 1967 protocol. Geneva: The UN Refugee Agency.
Woll, P. (1963). Administrative law. The informal process. California: University of California Press.
Yee, S. (2004). Towards an international law of co-progressiveness. Netherlands: Brill Academic Publishers.
Yilmaz, M. (2013). Domestic judicial review of trade remedies. New York: Cambridge University Press.
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