Procedural fairness, executive decision-making and the rule of law

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visiting Professor Clive Plasket
visiting Professor Clive Plasket

By Nokwanda Dlamini, fourth-year Bachelor of Journalism and Media Studies student

Rhodes University’s Faculty of Law was treated to a public lecture by visiting Professor Clive Plasket Judge of the High Court, Eastern Cape Division on 2 October.

In his lecture, titled “Procedural fairness, executive decision-making and the rule of law”, he debated the application of procedural fairness in a number of cases since the Masetlha v President of the Republic of South Africa ruling.  At the outset, Judge Plasket noted: “The notion that procedural fairness is a part of the rule of law as much as the principle of legality and rationality is not a strange idea.”

It is from this point of view that he goes on to criticise the Masetlha judgment. In Masetlha v President of the Republic of South Africa, Mr Masetlha was first suspended and later terminated as Head and Director-General of the National Intelligence Agency (NIA). Former President Thabo Mbeki did so by unilaterally amending his term of office so that it expired within two days of the notice, and just over 21 months earlier than the original term. The termination of employment was accompanied by an offer to pay Mr Masetlha his full monthly salary, allowances and benefits for the unexpired period and other moneys that may have been due to him. The final ruling of the case was that procedural fairness was to be excluded when it involves an executive action such as the appointment of a minister. The court found this to be the case since, whenever an exercise of public power which includes a minister or the president contains a high degree of policy, it is considered an executive action. Judge Plasket argued that the problem with this decision was that it took an ‘all or nothing’ approach.

In critiquing the Masetlha decision, Judge Plasket analysed the Albutt v Centre for the Study of Violence and Reconciliation and Others case. The case concerned the power of the president to grant pardon under section 84(2)(j) of the Constitution to people who claim that they were convicted of offences committed with a political motive. An interdict was brought against the president to prevent him from hearing the cases without the victims’ views. In question was whether the president’s power amounted to an administrative decision or an executive decision, the latter (as found in Masetlha) would not be constrained by a need for procedural fairness.

The court in Albutt found that, in order to act rationally and constitutionally, one would have to listen to the other side in order to reach a decision on whether the crimes had political motivations. The court thus ruled that in order to get a proper picture about the case, one would have to speak to the victims. In order to get around Masethla’s finding (viz, that procedural fairness was not required when executive decisions were made), the court in Albutt used the concept of rationality rather than fairness to support this view.

Using the Minister of Defence and Military Veterans v Motau and Others and the Scalabrini Centre, Cape Town and Others v Minister of Home Affairs and Others, Judge Plasket argued the limitations of a procedural fairness ruling, with the latter case resulting in the decision that the Minister of Home Affairs had made an irrational decision by not consulting others.

In his closing argument, Judge Plasket stated that the Masetlha case has caused uncertainty. “The only solution to this issue would be a new case emerging that addresses the matter through making amendments to the decision,” he said. “Hopefully the future will see procedural fairness being amended to being case-specific and flexible enough to ensure people have a right to their dignity.”