(The
post- Shah Pahlavi era)
History
of Camp Ashraf and Camp Liberty
A Victory
for Humanity
Stes
de Necker
International
Diplomatic Ambassador and
President
of Friends of Camp Liberty
Introduction
Friday, October 21, 2016
51 years of resistance of The People’s Mojahedin of Iran - History of Camp Ashraf and Camp Liberty
Demonstrations against the Shah
commenced in October 1977, developing into a campaign of civil
resistance that included both secular and religious
elements and which intensified in January 1978.
The royal reign collapsed shortly
after on February 11, 1979 when guerrillas and rebel troops
overwhelmed troops loyal to the Shah in armed street fighting, bringing
Khomeini to official power.
Camp Ashraf was created in 1986, after the PMOI leadership relocated from France to Iraq.
Mr. Tahar Boumedra, SRSG's advisor on Ashraf affairs, who was responsible for Ashraf at the UNAMI for three and a half years resigned in May 2012 in protest to Martin Kobler’s attempts to cover up violations of human rights at Camp Liberty.
After 4 years of heroic resistance and countless international
efforts by thousands of Political dignitaries and Parliamentarians all over the
globe, the history of Camps Ashraf and Liberty resulted in a victorious conclusion
and resettlement that enjoyed international congratulations.
Tuesday, October 4, 2016
ADMINISTRATIVE LAW - FAIRNESS AND NATURAL JUSTICE IN ENGLISH AND SOUTH AFRICAN LAW
ADMINISTRATIVE
LAW
FAIRNESS AND
NATURAL JUSTICE IN ENGLISH AND SOUTH AFRICAN LAW
THE
SOUTH AFRICAN LAW JOURNAL
LG BAXTER
Stes de Necker
INTRODUCTION
Since the landmark decision in
Ridge v Baldwin' (1) the notion of procedural fairness in administrative
decision-making has received considerable attention in England, and similar
developments have taken place in the United States. (2)
This is not surprising in view of
the development of modern government and the transformation of the
administration from being primarily regulatory in nature to the major
dispensary of benefits and largess affecting every complexity of the society of
today.(3)
This trend is manifested in
England, particularly in the Court of Appeal, by the recent development of a
'duty to act fairly' in administrative law. (4) Many judges have expressed
dissatisfaction with the traditional formulation of the principles of natural
justice and have adopted instead the 'fairness' terminology. (5)
At the same time, the approach of
the judiciary in South Africa to the question of procedural safeguards and
administrative law has, with notable exceptions, (6) been mundane and sometimes
quite sterile, (7) while th notion of natural justice has been undervalued by
prominent writers. (8) Yet to ignore the importance of procedural safeguards
such as the principles of natural justice is to neglect the value placed upon
process as a means of expressing the ideals inherent in the notion of fair
administration (9) and to evade the 'very kernel of the problem of
administrative justice: how far ought both judicial and administrative power to
rest on common principles?' (10)
It is my submission that a major
factor contributing to the dissatisfaction presently expressed with South
African administrative law by some commentators (11) has been the failure of
our courts to expand and develop the common-law principles of procedural
fairness in accordance with the demands of modem society. And, in my view, this
stagnation is the result of certain shibboleths that serve to obstruct the
application of procedural safeguards in our administrative law.
In this article I shall discuss
briefly the two major obstacles that I believe are to be found in our notion of
natural justice: the doctrine of classification of functions, and the
insistence by the courts that the administrative action complained of affect
existing rights if the principles of natural justice are to be held to apply. I
shall then proceed to review the development of the duty to act fairly in
English law and to consider whether this development has any relevance to the
South African situation and whether it would be of assistance in overcoming the
obstacles inherent in the orthodox approach to natural justice. In view of the
historical development of our administrative law, reference to other common-law
jurisdictions (and particularly the English law) is, I think, most productive;
there are few of the structural differences that often obstruct comparative
discussions in other areas of law.
PROBLEMS WITH
NATURAL JUSTICE IN SOUTH AFRICAN LAW
The primary procedural safeguards
in South African administrative law are expressed by the twin principles of
natural justice: audi alteram partem
and nemo iudex in causa sua: that is,
that one should hear the other side, and that no one should be a judge in his
own cause (or, in other words, that the decision-maker should be free of bias).
(12) As a general rule it may be said that the principles of natural justice
apply whenever an administrative act is quasi-judicial, and an administrative 8
) act may be said to be quasi-judicial if it affects the rights, liberties
(and, perhaps, the 'privileges') of an individual. (13) This formulation is
open to attack: there are well-founded objections to the classification of
administrative acts into categories such as quasi-judicial; and it is submitted
that the requirement that the act complained of affect existing rights is quite
irrelevant to the true purpose of natural justice.
(a) Classification of Functions
and Quasi-judicial
The Classification Process
'The process of classification',
says Professor Robson, '... is one of the principal elements in the
"artificial" reason of the law.' (14) The demand for reduction of
material into easily manageable categories makes broad classification a
necessity. Categories are here adopted for legal purposes alone, and are an aid
to objectivity. Moreover, 'evidence can acquire its proper importance only if
it comes before us marshalled by general ideas'. (15)
Because the law is concerned with
existing facts and circumstances, the categories that are created by the
process of classification can at most be a synthesis of relevant material: the
law, at least in practice, is not concerned with abstract concepts.
Thus, for example, when
proceedings are labelled 'judicial', the term is being used in a descriptive
sense to describe proceedings that bear certain characteristics in whole or in
part, which have relevance for the purpose at hand. They are 'judicial' for that
purpose alone. (16)
But the danger with the
classification process is that legal categories tend to become rigid and
inflexible. (17) So inherently flexible categories such as 'administrative' and
'quasi-judicial' may become rigidly distinguished from one another, as if there
were really only one type of category into which any administrative act could
fall. And, inevitably, classifications made for one purpose will be used
inappropriately in other contexts: for example, an act classified as administrative
because it is performed by a minister of state may later be thought not to be
quasi-judicial for the purpose of observing natural justice. (18)
This danger has led certain
authors to distinguish between a conceptual and a functional approach to administrative
law. (19) to these authors, the chief difficulty with the traditional approach
to administrative law is that lawyers and judges have adopted 'forced
classification' techniques, (20) forgetting that categories are fictions
created for a particular purpose, and assuming that the relevant data may be
easily categorized. This approach is called the conceptual approach. The better
alternative, they urge, is a functional approach, which is concerned with the
particular ends sought to be achieved, 'paying due regard to democratic
safeguards and standards of fair play'. (21)
Whether there is such a school of
conceptualists or not, these comments do serve to remind us that in
administrative law, at least, the purpose and function of actions or
institutions is the correct basis of classification, not the labels of purpose
and function.
Thus it is important that
classification not be used arbitrarily, that the criteria for classification be
rationally related to the purpose for which the classification is being
employed, and that the categories of classification be recognized as no more
than devices of convenience. Otherwise it could justly be claimed that rigid
concepts 'put the cart before the horse'. (22)
Unfortunately 'quasi-judicial'
has seldom enjoyed such understanding at the hands ofjudges, here or in
England.
The Abuse of 'Quasi-Judicial' in England and South Africa
South African courts
traditionally follow the English law by classifying the functions of the
administration into four broad categories: the legislative; the judicial; the
quasi-judicial; and the purely administrative (including ministerial). (23)
Whilst even a 'purely
administrative' function cannot be exercised ultra vires, (24) it has generally
been held that only judicial and quasi-judicial proceedings need follow the
principles of natural justice. (25)
Nevertheless, the classification
of administrative action as quasi judicial was intended only as a device of
convenience, for although this category was thought to be 'very aptly
expressed'," (26) in 1953 Schreiner JA perceptively warned that: 'The
classification of discretions and functions under the headings of
"administrative", "quasi-judicial" and "judicial"
has been much canvassed in modem judgments and juristic literature; there
appears to be some difference of opinion, or of linguistic usage, as to the
proper basis of the classification, and even some disagreement as to the
usefulness of the classification when achieved .... [O]ne must be careful not
to elevate what may be no more than a convenient classification into a source
of legal rules.' (27)
Unfortunately, this warning has
not been heeded, (28) and the quasi judicial category has received much, if not
always fair, criticism in South African journals. (29) To understand the
difficulties with the use of such a classification it is essential to consider
the history of the quasi-judicial category in English law.
There are two contexts in which
the term 'quasi-judicial' has been employed in English law: in the area of
remedies and in the application of natural justice. Although analogous
difficulties arose with the classification of functions in the English law of
remedies, (30) this area of English law bears no relevance to South African law
and need not concern us. (31) Important for present purposes, however, is the
role of 'quasi-judicial' in English natural justice.
'Quasi-judicial' was used as a
description of the sort of power that had to be exercised in accordance with
the principles of natural justice. The term was used to differentiate between
the judicial function of a court and acts of the administration which, although
not 'judicial', were nevertheless required to be based upon, or take into
account, certain existing circumstances.
Natural justice had to be
observed whenever a decision was to be made to take any action that could
affect an individual's interests. Thus, when a local authority proceeded to
demolish a man's building because he had not given the required notice that he
was going to erect it (as the local authority was indeed empowered to do), the
court awarded him damages on the ground that he had not been afforded a
hearing; he should have been given an opportunity to explain his failure to give
the notice before the decision to demolish was taken. (32) The action may have
been administrative, but by its very nature the power necessitated a hearing of
the other side if it was to be exercised properly; it had to be exercised in a
'judicial' fashion.
This meant that every power which
had to be exercised in accordance with natural justice would be labelled
'judicial' was adopted. (33) Professor Wade points out (34) that in later
cases, such as Urban Housing Co Ltd v Oxford City Council, (35) where walls
were also knocked down, the power was described as quasi-judicial rather than
judicial, although without any change in meaning.
It was the preliminary stage of
determining these circumstances that was referred to by the term
quasi-judicial. (36) In other words, 'quasi judicial' was simply a convenient
label for the sort of administrative action that could be taken only after
paying regard to existing circumstances. (37)
However, the 'quasi-judicial'
terminology fell into disrepute for two reasons. First, in 1932 the Report of
the Committee on Ministers' Powers (38) attempted to define a quasi-judicial
decision by distinguishing it from a judicial one on the basis that the former
need not necessarily involve the submission of legal argument by the parties if
questions of law are involved (whereas this is essential to a judicial
decision) and that whereas a judicial decision 'disposes of the whole matter by
a finding upon the facts in dispute and an application of the law of the land
to the facts so found, including where required a ruling upon any disputed
question of law', (39) in a quasi-judicial decision this is replaced by
'administrative action, the character of which is determined by the Minister's
free choice'. (40) Unfortunately, this distinction is unsatisfactory, since it
assumes that judicial decisions involve no discretion whereas quasi-judicial
ones do; (41) and it tends to imply that a minister is not bound to observe
'the law of the land', (42) which, of course, he is. The Committee seemed to
place too much emphasis upon procedural differences and seemed to view the
quasi-judicial decision as a judicial decision from which some elements were
missing. (43) But the main reason why the term has fallen into disrepute lies
in the misinterpretation of the term 'judicial' (44) by judges during the first
half of this century. (45)
The misinterpretation stemmed
from a statement by Atkin LJ in R v Electricity Commissioners, ex parte London
Electricity Joint Committee Co. (46) The course of this misinterpretation is
admirably exposed and analysed by Lord Reid in a case which is one of the
landmarks of English administrative law: Ridge v Baldwin. (47) Lord Reid
pointed out that there is something similar in what a committee, or the like,
does when deciding what action to take against an individual, and what a judge
does in a lawsuit. Although the committee may, in fact, be more concerned than
a judge with the application of policy, it is nevertheless also deciding how
someone should be treated. 'So it was easy to say that such a body is
performing a quasi-judicial task in considering and deciding such a matter, and
to require it to observe the essentials of all proceedings of a judicial
character-the principles of natural justice.' (48) 'Quasi-judicial' was, as we
have already seen, nothing more than a term used to describe the sort of action
necessary when circumstances have to be considered before a decision is
reached, and the type of power which necessarily involves that mode of procedure.
However, Atkin LJ had said (in
relation to the prerogative writs of certiorari and prohibition):
'Wherever anybody of persons having legal
authority to determine questions affecting the rights of subjects, and having
the duty to act judicially, act in excess of their legal authority, they are
subject to the controlling jurisdiction of the King's Bench Division exercised
in these writs.’ (49)
In a later case (50) Lord Hewart
CJ said that the phrase 'and having the duty to act judicially' was a superadded
condition to the 'authority to determine question affecting the rights of
subjects' and must be satisfied before the writs would issue. This view was
followed in later cases, (51) and involved the courts in an inhibited search
for the indications of a 'possible duty to act judicially', such as the
existence of a lis inter partes, or the provision for judicial procedure in the
enabling statute. (52) But Atkin LJ had
used the additional phrase in a descriptive sense: to describe the sort of
action that involved determining questions affecting individuals. He inferred a
judicial element from the nature of the power in that case. (53) Lord Hewart's
interpretation was not only mistaken, but contrary to precedent. (54)
As a result of this misinterpretation, the
term 'quasi-judicial' acquired the connotation of arid conceptualism, and
although the record was set right in Ridge, the term has become disreputable in
English law. (55)
But it is important to remember
that although the term has fallen into disrepute, if it had been confined to
its proper function, as described in Ridge, there would have been nothing
inherently wrong with the category.
What Ridge certainly did
establish was that the 'heresy' that the principles of natural justice applied only
to 'judicial' and not to 'administrative' proceedings had been well and truly
'scotched'. (56)
Administrative proceedings very frequently involve the
consideration of circumstances, and whenever they do, procedure in accordance
with the principles of natural justice is generally appropriate. It was that
aspect of the administrative function that was described as quasijudicial, and
the real danger was not the category itself, but its tendency to be misused. As
a Scottish author put it: 'The objection does not appear to lie so much in the
creation of this tenebrous realm between the "administrative" and the
"judicial", or even by the ambiguity of the term "quasi-judicial", formidable though these difficulties may
be. It lies rather in the attitude of mind which a pseudo categorisation of
this kind engenders; for the distinction suggests to us in the most persuasive
way that there is in fact some ascertainable class of decisions which are
quasi-judicial.' (57)
The convenience of
'quasi-judicial' as a description also led to its becoming associated with
natural justice in South African law. But while the descriptive category may
have proved to be of some use as a heuristic aid, certain cases have revealed
the dangers inherent in the use of such a classification.
First, there has been a tendency
to over-strain the descriptive classification by forcing entire proceedings
into either an administrative or a quasi-judicial category. Thus, for example,
in Van Wyk v Director of Education5 (58) the court referred to a board as being
a quasi-judicial body, whereas in fact it was only exercising quasi-judicial
functions. Only in that sense was it a 'quasi-judicial body'.
This type of
categorization may be frequently unrealistic where administrative bodies
perform many different activities during the course of exercising their powers,
and the danger is that a body which has been classified as administrative may,
in fact, perform quasi-judicial functions at various stages during its
activities. But the previous classification may lead courts to hold that it is
therefore not obliged to observe the requirements of natural justice. A safer
approach, it is submitted, is that of Rose Innes AJ in Helderberg Butcheries
(Stellenbosch) (Pty) Ltd v Municipal Valuation Court, Somerset West, (59) where
he described a tribunal as acting 'in a judicial or quasi-judicial capacity' (60)
This limits the description to that particular action alone (but even here it
should be borne in mind that it is not the power or discretion itself that is
quasi-judicial but the form of procedure which should be adopted; the form of
procedure is inferred from the nature of the power). (61)
Secondly, the danger of rigidity
in the classification process has manifested itself in some decisions where
natural justice has been held not to apply, simply because the relevant
official was said to be exercising a so-called purely administrative function.
So where natural justice would ordinarily have been applicable (because the
relevant action had to be justified by the existence of certain circumstances,
the ascertainment of which would have been assisted by the principles of
natural justice), but is excluded by virtue of overriding factors such as
national security, (62) there is a temptation for the judge to justify this
exclusion of natural justice, not on the basis that the special circumstances
of the case constitute an exception but on the ground that the minister or
official concerned was merely exercising an 'administrative' or 'purely
administrative' function. (63) The danger with this approach is that it tends
to create the impression that other, equally 'administrative', acts are
likewise not subject to the requirements of natural justice.
Another example of this approach
is Pretoria City Council v Modimola, (64) where property had been expropriated
in terms of legislation that required this to be done if, as it seems was the
case, the property was 'affected' by a proclamation in terms of the Group Areas
Act 1957. (65)
The Appellate Division reversed a
decision of the Transvaal Provincial Division. BothaJA, speaking for the
unanimous court, said: 'In the absence of
a provision prescribing a quasi-judicial enquiry as a prerequisite to the
exercise of a power of expropriation, the act of expropriation is a purely
administrative act.' (66)
Clearly, any expropriating
authority must have a circumstantial basis upon which to exercise its powers,
and the existence of such a basis (in this case, whether the property was
indeed 'affected') is almost impossible to assess satisfactorily without enquiring
into the facts and hearing representations. (67) Natural justice was (on the court's
interpretation) excluded by statute, not by virtue of the fact that the act was
administrative. Modimola has (correctly, it is submitted) received trenchant
criticism from Wiechers . (68)
So the words of Rumpff CJ in Oberholzer v
Padraad van Outo (69) are to be
welcomed. In this case a successful application for the closing of a private
road had been made to the Road Board. The Board was empowered to grant the application,
but if there were any objections it was to hold an inquiry before making a
decision, which then had to be made with due regard for the interests of all
concerned. The appellant had sent a written objection to the Board but was
given incorrect notice of the inquiry and, as a result, did not attend it.
Although it was admitted that the appellant had been misled, the court a quo
(70) held that the granting of
permission for the closure was an administrative act and that natural justice
did not apply. This decision was reversed by the Appellate Division
(unanimously). In delivering the judgment of the court and criticizing the
classification by the judge in the court a quo of 'purely administrative acts',
Rumpff CJ said: 'Lees mens die uitspraak van die hof a quo, dan tref dit mens
dat 'n uiters tegniese benadering gevolg is en dat 'n oorweging van die aard
van die belange van sowel die aansoekdoener as die beswaarmaker afwesig is. Die
hof a quo het bevind dat die funksie van die Padraad "administratief"
was en dat dit derhalwe nie nodig was om appellant 'n geleentheid te gee om op
die beswerings... te antwoord nie. Hierdie etikettering van 'n funksie, sonder
meer, is m.i. gevaarlik en kan lei tot oorvereenvoudiging van die vraag of
geregtigheid in besondere omstandighede geskied het of nie.' (71)
' It is submitted, therefore,
that the classification process and the quasi-judicial category, while perhaps
of marginal analytic value, carry with them unnecessary dangers. For
classification of functions in this area of law is not really necessary at all.
In the words of two judges of appeal:
'What primarily has to be considered in all these cases
is the statutory provision in question, read in its proper context.' (72) 'The
purpose, wording and context of legislation under discussion and the nature of
the interest of a person which is affected through an action under such
legislation must be considered carefully.' (73)
What is important is whether the
power is to be exercised upon the assumption that certain circumstances exist
and whether the course of action is likely to be influenced by external
circumstances; for, if so, then it should be exercised in a fashion which
ensures that the assessment of circumstances is accurate, or at least fair. The
approach of the Appellate Division in Turner v Jockey Club of South Africa(74)
and the Rhodesian Appellate Division in De Villiers v Sports Pools (Pvt) Ltd, (75)
where the classification process was ignored altogether, is an encouraging
trend in this direction. (76)
(b) Natural Justice and 'Rights'
'A function which is judicial or quasi-judicial as
opposed to one which may be called purely administrative involves the exercise
of powers affecting legal rights and enquiry into matters relating to such
rights.' (77)
This test for whether an action
be quasi-judicial or, in effect, whether the principles of natural justice
shall apply, was firmly established by the Appellate Division in Cassem v
Oos-Kaapse Komitee van die Groepsgebiederaad (78) and has been repeatedly reaffirmed
in subsequent cases.(79)
Here I consider whether the
requirement that the power exercised necessarily affects rights is a
satisfactory criterion for applying the principles of natural justice. I submit
that this approach is misconceived-while every administrative act which
infringes upon an individual's rights should comply with natural justice, the
reverse should not necessarily be true: the mere fact that action does not
affect an individual's 'rights' should not allow administrative powers to be
exercised without regard for the 'elementary principles' (80) of fairness.
(i) The Meaning of 'Rights'
Although in the cases quoted
above the judges have merely referred to the 'rights' or 'legal rights' of the
individual, many variants are to be found in other cases dealing with this
point. The act complained of must 'affect prejudicially the rights of person or
property'; (81) affect 'rights of or involv[e] legal consequences to persons';
(82) involve 'proprietary rights' (83) or 'legal rights'; (84) 'adversely
affect such person's interests', (85) It is also said that the act must 'affect
the existing rights, powers or privileges of others' (86) or 'the rights,
privileges and liberties of an individual'. (87)
However, whatever the expression
be, what is legally relevant is that the rights affected be existing legal
rights. In Laubscher v Native Commissioner, Piet Retief (88) trust land
reserved for black Africans was placed under the trusteeship of the native
commissioner. The plaintiff (who was not black and therefore was not entitled
to reside on the land without a permit) had applied, unsuccessfully, for a
permit of residence. This had been refused without any inquiry. The Appellate
Division held that natural justice was not applicable. Schreiner JA insisted
that the claimant to natural justice have an antecedent right which could be
affected (89) And this was recently reaffirmed by the Appellate Division in
Administrateur van Suidwes-Afrika v Pieters: (90)
'Dit is egter algemeen gesproke duidelik dat waar 'n
openbare liggaam of gesag statutr gemagtig word om 'n beslissing te gee wat die
goed, vryhede of bestaande regte van 'n ander nadelig kan raak, of waar die
beslissing bestaande regte kan aantas of regsgevolge vir andere mag inhou,
daardie ander persoon of persone die reg het, tensy die teendeel uit die
magtende bepaling blyk, om toegelaat te word om sy saak te stel voordat daar so
'n beslissing teen horn geneem word. (91)
It is important to note that the word
'privileges' adds nothing in this context: an 'existing privilege' which is
protected by the law is nothing other than a species of legal right (92) (or a
liberty recognized by the law and, hence, protected by corresponding negative
duties). In this context the term 'existing privileges' is legally irrelevant.
It is important not to confuse 'privilege' in this context with the word
'privilege' in the so-called right-privilege distinction discussed below.
The cases are therefore quite
clear that only individuals whose existing rights (including property rights)
and recognized liberties are being interfered with may claim the benefits of
natural justice. Those who are merely attempting to obtain potential benefits
have no enforceable claim that their applications be considered in accordance
with natural justice. (93)
A similar approach has been
adopted in the past by courts in England and the United States. It is known as
the right-privilege distinction.
(ii) The Right-Privilege
Distinction in English and American Law
(1) During the 'twilight years' (94)
of natural justice in England the courts drew a distinction between action that
involved deprivation of a right and action that merely had the effect of
depriving or refusing at most a 'privilege' (ie something the administration
could grant, such as a licence, but to which the applicant or holder had no
legal claim). The most notorious case was Nakkuda Ali v Jayaratne. (95) Here a
textile dealer's licence had been cancelled, allegedly in breach of natural
justice. The Judicial Committee of the Privy Council was of the opinion that no
breach had in fact occurred. But it held, inter alia, that even if there had
been a breach, the Controller of Textiles was not acting judicially but 'taking
executive action to withdraw a privilege'. (96)
However, Nakkuda Ali was frowned
upon by Lord Reid in Ridge v Baldwin' (97) and the distinction has been
criticized by commentators, (98) although it seems still to be recognized by
Lord Denning MR: in R v Gaming Board for Great Britain, ex parte Benaim and
Khaida,(99) where the applicants had sought a permit to run a gaming house, he
said:
'It is an error to regard Crockford's as having any right
of which they are being deprived.... What they are really seeking is a
privilege-almost, I might say, a franchise-to carry on gaming for a profit’. (100)
Although his remark was obiter
and, in any event, he still held that the Gaming Board had a duty to act fairly
(and that they had fulfilled it), the Master of the Rolls (and Megarry V-C)
have expressed similar views in other judgments. (101)
(2) In the United States the distinction has
played a major role in determining the applicability of procedural due process
to state or federal action.
The origins of this distinction
have been traced to McAuliffe v Mayor of New Bedford, (102) in which Justice
Holmes made his celebrated statement:
'The petitioner may have a constitutional right to talk
politics, but he has no constitutional right to be a policeman." (103)
Holmes held, inter alia, that a
'due hearing' had not been required when a police officer had been dismissed
for violating a regulation forbidding participation in political activity.
Since then the doctrine of
privilege has played an important part in determining whether one who seeks, or
has been deprived of, discretionary benefits is (or was) entitled to a fair
hearing and the protection of the due process clauses of the United States
Constitution. (104) The requirement that administrative action affect legal
rights was reinforced by the doctrine of 'entitlement triggers'; the
constitutional guarantee of due process in the event of deprivations of 'life,
liberty or property' was triggered if the claimant could establish some legal
entitlement. (105) In recent years, however, the right-privilege distinction
appeared to fall into disfavour, (106) and it was expressly rejected as
inappropriate by the United States Supreme Court in a number of recent cases. (107)
But it has been suggested (108) that the distinction has been revived by a
recent decision, Bishop v Wood' (109) in which a policeman had been dismissed
without a hearing.
(3) South African courts, therefore, are not
alone in drawing a distinction between benefits to which a person has a legal
right and those which the administration may, but has no duty to, provide. I
have suggested that such an approach is misconceived, and it certainly does not
appear to have enjoyed stable tenure in England or the United States. I shall
now consider what I believe to be the principal objections to the
right-privilege distinction and try to explain why it may have been adopted in
the first place and why it still carries support. Although the distinction is
not normally referred to as being between rights and privileges in South
African law, for the sake of convenience I shall continue to use this
terminology.
(iii) Objections to the
Right-Privilege Distinction
There seems to be two major
objections to the use of the right privilege distinction in determining whether
the administration has a duty to observe standards of procedural justice.
First, the distinction can be question-begging; and, secondly, it is surely
irrelevant to the question whether one is entitled to a fair hearing (even if
it is relevant to the question whether one is entitled to succeed in one's
claim).
1. The first criticism is
empirical. It suggests that the right-privilege distinction is not consistent
with how courts, at least under common-law systems, develop rights in actual
practice. Whether the claimant has a right which is affected often depends upon
whether the court chooses to recognize that right by granting him a remedy. By
the very process of striking down administrative action, the court may have
created a new right at common law. If it really were the case that courts
recognize only existing rights, then this would not be true.
But since not only statutorily
created rights but also common-law rights are afforded recognition, the courts
are bound (at some stage) to create new rights:
'The notion of a "right" is an evolving concept
which has permitted courts to recognise as legal rights individual interests
which had never before been understood as such.’ (110)
Thus to argue that a person has
no claim to a benefit because he has no right to it is circular and begs the
question; he has no right to it because the court will not grant him one. (111)
By this I mean to say no more
than that in some cases rights are recognized for the first time and that to
talk in terms of 'existing rights' in some contexts adds nothing to the
question in issue: namely, should the body or official concerned act fairly or
in accordance with the principles of natural justice?
Although not specifically concerned
with natural justice as such, an interesting example of the recognition by
judges of a new right where none had previously existed is Nagle v Fielden. (112)
Here, a woman trainer was refused a trainer's licence by the stewards of the
Jockey Club, who had the monopoly of control over flat racing. Her claim for a
declaration that their act of refusal was void as being contrary to public
policy was struck out by the Master and by John StephensonJ as disclosing no
cause of action. However, this decision was reversed by the Court of Appeal. In
holding that she had an arguable case, the lords justices of appeal referred to
the changed conditions of society (113) and the importance of the licence to
livelihood. (114)
And in another, more recent,
English case, Central Council for Education and Training in Social Work v
Edwards, (115) where a student had been refused admission to a polytechnic
without being afforded a hearing or being given reasons for the refusal, SladeJ
held that although the applicant could not expect the polytechnic to act
judicially (since he was only applying for a place, not being deprived of one),
he was nevertheless entitled to a fair hearing, as the polytechnic was under a
'duty to act fairly' because, inter alia, it was publicly funded, and the
refusal could seriously affect the applicant's career.
In Nagle the court recognized a
possible right to a licence; and in Edwards the court recognized that an
applicant had a right to be treated fairly. In neither case were these rights
based upon any previously established entitlement.
Nowhere is an evolution of rights
more likely to occur than under modern conditions, where the dispensary of
benefits is monopolized by government. In a seminal article in 1964 (116)
Professor Reich drew attention to the magnitude and importance of
governmentally distributed largess in the modern world, which he termed the
'new property'.
When individuals are entirely
dependent upon the government for the distribution of commercial or social
necessities, such as trading licences or social welfare benefits, it is facile
to label these dispositions as 'privileges'. As Beck J put it recently in
Tabakain v District Commissioner, Salisbury : (117)
'The complexities of modem
society have enormously multiplied the controls to which people are subjected
in the exercise of their legal rights, and there is an increasingly insidious
tendency to regard permits of all kinds as a form of privilege. I would resist
the notion of regarding a permit .. . as a sort of delectable crumb that might
or might not be dropped from the bureaucratic dinner table.’ (118)
Government, one assumes, should
act in accordance with law and not arbitrarily. The largess or benefits it
distributes are not baubles but should be distributed in accordance with law,
whether common or statute law. This is not to say that the administration has
no discretion, but merely that it is not (unlike individuals and private
organizations in this respect) a free agent to act as it pleases. (119)
The distinction between rights
and privileges begs the question whether the administration should act fairly.
(2) More important, perhaps, even if the above
point is incorrect, there seems to be a logical objection: the distinction is
surely irrelevant and misleading. Perhaps one of Holmes's most misleading
statements was the one quoted above:
'The petitioner may have a constitutional right to talk
politics, but he has no constitutional right to be a policeman.'
This is beside the point: for a
claimant to a fair hearing does not demand that he succeed in his application;
he merely claims that his application should be considered in accordance with
common-law standards of fair procedure. As Justice Jackson put it in the
important case of Joint Anti-Fascist Refugee Committee v McGrath : (120)
'The fact that one may not have a legal right to get or
keep a government post does not mean that he can be judged ineligible illegally.’
(121)
When looked at this way, the
question of rights or privileges becomes no more than a question of locus
standi: for natural justice is a requirement of the common law that binds the
administration as much as anybody else, and observance of natural justice 'is a
duty lying upon everyone who decides anything'. (122)
(iv) The Right-Privilege Fallacy
If the above criticisms are
correct, there must surely be other factors encouraging judges to maintain this
artificial distinction. It seems to me that the persistence of the
right-privilege analysis is prompted by, and disguises, two related
considerations: the first involves the policy question of the reach of the law,
and the second is the recognition that a certain degree of freedom of action
must be accorded to all bodies, public or private, by the law.
(1) The extent to which the law should attempt
to regulate conduct is dependent upon the relative importance of that conduct
to the public interest-a phenomenon that is continuously varying in ambit and
emphasis. Whether, for example, a court will hold the requirements of natural justice
to be capable of exclusion by a contract between parties will ultimately depend
upon public policy and the importance the law attaches to regulating that
aspect of inter-personal relationships. (123) If the prevailing mood of public
policy is that the law should not concern itself with that area of private
activity, then the court is unlikely to require that the parties observe the
common-law requirements of natural justice, even if there may be a moral duty
to do so.
So in this sense it could be said
that a claimant may have no 'right' to a hearing. What is meant is that the law
is not prepared to grant legal protection to what may or may not be a moral
right.
(2) But it seems almost trite
that there is an overwhelming public interest in fair administration in
government and public authorities. However, this does not automatically imply
that in no case can the government act without observing the requirements of
natural justice. For there would seem to be a further, more important, reason
for not always enforcing the requirements of natural justice or the standards
of fair procedure.
This is the recognition that in
some activities the administration, like private organizations,should, as a
matter of necessity, enjoy a degree of freedom of action. Where the
administration is acting like a private body the addition of procedural
safeguards would not seem to be very important and could be unduly restrictive.
Thus in hiring employees for the type of employment that any private
institution may offer, the administration would not be required by any court to
observe the requirements of natural justice.
Where, however, the similarities
between the administration and the private sector end-where the administration
exercises a monopoly, where participation in state-controlled activities is
non-voluntary, (124) or where
administrative action is authorized by legislation and financed by the taxpayer
(125) it seems that government should have no claim to freedom of action. (126)
This does not mean that the receipt of largess is an automatic right of
individuals; but it suggests that the administration should comply with the
essentials of procedural fairness in reaching its decisions.
It is this aspect of
administrative action that seems to have been ignored by proponents of the
right-privilege distinction. While the administration may be no different from
individuals when conducting some activities, in the disposition of benefits or
largess it is acting as the public servant and there is an important public
interest that it act in accordance with the common-law principles of fairness.
Whereas an individual has freedom of action and may act arbitrarily, say, in
deciding whether or not to be fair in the allocation of his contracts, the administration
can claim no such freedom if it dispenses benefits to which individuals have no
other access and which are funded by public money: it must surely be in the
public interest that the administration does not have the freedom arbitrarily
to decide to entertain an application from one individual (and that means
hearing his case) but not from another. (127)
In my opinion the right-privilege
distinction is a method of analysis which was adopted because it seemed to
express the limits to which courts would be prepared to enforce procedural
safeguards and to recognize the fact that the administration must be accorded a
certain degree of freedom of action where it is acting in the same fashion as
private individuals in the open market. But my submission is that to extend
this analysis to actions of the administration where the administration is
acting as a public institution is an unjustified development of the
right-privilege distinction.
Indeed, the distinction itself is
misleading in two important respects: it creates the impression that there is a
fixed group of rights which are protected by procedural safeguards; and it is
irrelevant to the question whether, in deciding whether or not to grant an
applicant some benefit (or deprive a holder of a benefit already granted), the
administration should be able to ignore common-law notions of fair procedure.
Despite the criticisms that have
been levelled at both forms of analysis above-the classification of functions
and the right-privilege dichotomy-these formulations are deeply associated with
natural justice, especially in South African law. A new form of approach is, it
is submitted, desirable, and for this reason the current development in English
law of the duty to act fairly seems a particularly attractive advance for
administrative law.
FAIRNESS AND
ENGLISH ADMINISTRATIVE LAW
In recent years the courts in
England have developed a so-called duty to act fairly which has generally been
thought to have two main advantages over the traditional 'natural justice'
analysis:
(a) the new approach avoids the
temptation to classify functions, thereby avoiding the dangers of conceptualism
which had to be exposed in Ridge v Baldwin ; (128)
(b) the duty to act fairly
enables the courts to give effect to the inherent flexibility of natural
justice (which is based upon underlying principles of fairness(129). (130)
(a) It was for the first reason
that Lord Parker CJ initiated the development of the duty to act fairly in 1967
in In re HK(An Infant) , (131) where,
dealing with the action of an immigration official who had refused to allow a
boy entry into England, he said that it was not, as he saw it, 'a question of
being required to act judicially but of being required to act fairly. . . .
[T]o that limited extent do the so-called rules of natural justice apply, which
in a case such as this is merely a duty to act fairly. ' (132)
Lord Parker reaffirmed this
approach in R v Birmingham City Justices, ex parte Chris Foreign Foods
(Wholesalers) Ltd, (133) noting (134) that his approach had been approved by
the Court of Appeal (as indeed it had in Schmidt v Secretary of State for Home
Affairs (135). The development has been enthusiastically taken up by members of
the Court of Appeal (136) and has, perhaps, received implied approval from the
House of Lords in Wiseman v Borneman' (137) and Pearlberg v Varty, (138) as
well as by the Privy Council in Furnell v Whangerei High Schools Board.(139)
The advantage of this approach is
that it avoids the labyrinth of classifications; the simple question to be
asked is whether the organ or official concerned acted fairly. For as Lord
Justice Ormrod has recently said:
'Natural justice is but fairness, writ large and
juridically. It has been described as "fair play in action". Nor is
it leaven to be associated with judicial or quasi-judicial occasions.' (140)
(b) The other reason for the
apparent success of the doctrine of fairness is that it emphasizes and
expresses the flexibility inherent in procedural fairness and natural justice,
(14)1 and avoids the 'trap of legalism'
(142) provoked by the phraseology attached to natural justice. As a second
justification, flexibility has gained acknowledgment in a number of decisions
in the Court of Appeal. (143) In Maxwell v Department of Trade and
Industry'" Lawton LJ explained why he preferred the fairness terminology:
'From time to time during [the past sixty years] lawyers
and judges have tried to define what constitutes fairness. Like defining an
elephant, it is not easy to do, although fairness in practice has the
elephantine quality of being easy to recognise. As a result of these efforts a
word in common usage has acquired the trapping of legalism: "acting fairly"
has become "acting in accordance with the rules of natural justice",
and on occasion has been dressed up with Latin tags. This phrase in my opinion
serves no useful purpose and in recent years it has encouraged lawyers to put
those who hold enquiries into legal straitjackets.... 'For the purposes of my
judgment I intend to ask myself this simple question: did the inspector act
fairly towards the plaintiff?' (145)
Although, as Professor De Smith
pointed out, (146) in view of the flexibility inherent in natural justice it is
not strictly necessary to resort to a simple doctrine of fairness at all, the
latter approach is useful in removing the dead wood of conceptual verbiage that
accompanies the traditional approach, and it facilitates a fresh examination of
the fairness of each particular situation.
However, although the new
approach appears to have found general acceptance, (147) it is not altogether
clear whether the duty to act fairly has subsumed the principles of natural
justice or is merely a parallel procedural safeguard, nor is it at all certain
exactly what is meant by 'fair'. (148)
In the first place, there is
support to be found for the view that the duty to act fairly has merely
replaced the traditional natural-justice formulation ; (149) that it is in fact
a sort of 'mini natural justice', (150) providing the barest minimum of
procedural fairness even where natural justice does not apply; (151) or that it is really a much wider standard,
embracing substantive issues of fairness as well as procedural fairness. (152)
It is submitted that in view of
the dicta of a number of judges in the Court of Appeal, in which natural
justice and the duty to act fairly have either been expressly equated (153) or
have been used interchangeably, (154) and in view of the silence on this point
of the House of Lords, it may safely be assumed that the fairness doctrine is
intended to be a substitute for the orthodox formulation of natural justice.
On the other hand, the new
approach presents considerable difficulties of meaning. For uncertainty is
inevitable with the use of an ethical concept such as 'fair', and the judges
themselves have been far from consistent in their use of the term, frequently
failing to distinguish between the substantive connotations of fairness and its
procedural connotations. As Lawton LJ said: '. . . there are, in my judgment,
two facets of fairness: what is done and how it is done.' (155)
When natural justice was
described as being based upon fairness, fairness was being used in the
procedural sense. Examples of the phrases that were used are: fair play; (156)
'listen fairly' ; (157) 'fair crack of
the whip' ; (158) and 'elementary rules of fairness'.(159) But recent phrases,
such as 'act fairly'(160) and 'fairness writ large',(161) can apply as equally to the substantive result
of the case as to the mode of procedure. Nor is this merely loose verbiage,
since recently some judges have suggested that they will employ the term 'duty
to act fairly' to include the result of the decision as well as the procedure.(162)
In any event, fairness has long been recognized as a ground for review of abuse
of discretion. (163)
But it is submitted that it is
preferable that the substantive and procedural aspects of fairness be strictly
separated, for there are dangers associated with any attempt to combine the two
grounds of review, which may be illustrated by the following discussion of the
relationship between procedural and substantive fairness.
Procedural and Substantive
Fairness: The Relationship
The most obvious justification
for good procedure is its efficiency in achieving just results.’ (164) 'The
emphasis is thus on a process which is deemed to make fair and reasonable
decisions more likely.' (165) And the rationale underlying a procedural maxim
such as audi alteram partem'(166) is,
partly at least, to ensure that 'certain facts have been found to exist' (167) before
a power is exercised.
Thus procedure and substance are
intimately intertwined; procedures are adopted to ensure substantive justice.
But although substantive and procedural justice may tend to go together,' (168)
this is not necessarily so, since unjust laws may be administered by impeccable
legal process. (169)
Equally, it is sometimes impossible
to measure the 'correctness' of a decision by means of any fixed, objective
standard, (170) because the standards involved in the decision-making process
are subjective in nature.' (171) It is where the outcome of an administrative
decision is not measurable by any fixed, objective standard that procedure
plays its most important role in ensuring 'justice'. This might be clarified by
considering three types of procedural justice delineated by Professor Rawls : (172)
perfect procedural justice; imperfect procedural justice; and pure procedural
justice.
Perfect procedural justice may be devised where (a) there is an independent
criterion for measuring the correctness of the result, and (b) it is possible
to devise a procedure that will ensure the desired outcome. As Rawls says,
'perfect procedural justice is rare, if not impossible, in cases of much
practical interest'. (173)
Imperfect procedural justice is exemplified by trials. The procedure is framed to
ascertain the facts, but 'it seems impossible to design the legal rules so that
they always lead to the correct result'. (174)
Pure procedural justice, on
the other hand, 'obtains when there is no independent criterion for the right
result: instead there is a correct or fair procedure such that the outcome is
likewise correct or fair, whatever it is, provided that the procedure has been
properly followed. (175)
Plainly, natural justice as
procedure qualifies as pure procedural justice (at the least), and imperfect
procedural justice (at most). And only where it falls into the latter
category-where fixed and ascertainable standards are to be applied on the
ascertainment of certain facts-would the substantive justice of the result
override the means whereby the result was obtained. In such cases provision for
an appeal is usually made.
But when the courts are
exercising their powers of review and they are confronted with the question
whether procedural standards have been observed, they will regard any act that
failed to observe the standards of fair procedure required as void.
The Duty to Act Fairly and
Procedural Justice
In General Medical Council v
Spackman" (176) Lord Wright said:
'If the principles of natural justice are violated in
respect of any decision, it is immaterial whether the same decision would have
been arrived at in the absence of the departure from the essential principles
of justice. The decision must be declared to be no decision.’ (177)
This principle was categorically
repeated in Ridge v Baldwin by Lord Hodson:
'I do not find that the answer put by counsel for the
watch committee to your Lordships that the case was as plain as a pikestaff is
an answer to the demand for natural justice.’ (178)
It was affirmed by the Judicial
Committee of the Privy Council in Annamunthodo v Oilfields Workers' Trade
Union.' (179) The rule is, if anything, even stricter in cases where bias is
alleged, for actual bias need not be proved: it is the appearance which is
important. (180)
Yet since 1958 three English
cases have cast doubt upon the invariability of this rule. (181) For instance, in Malloch Lord Wilberforce
declared that although a complainant could show that he had a right to a
hearing,
'... to show this is not necessarily enough, unless he
can also show that if admitted to state his case he had a case of substance to
make. A breach of the procedure, whether called a failure of natural justice,
or an essential administrative fault, cannot give him a remedy in the courts,
unless behind it there is something of substance which has been lost by the
failure. The court does not act in vain.’ (182)
This statement has been described
as 'ominous', (183) and all three cases have been trenchantly criticized by
Clark in a recent article. (184) Not only have we learnt from experience that
'the path of the law is strewn with examples of open and shut cases which,
somehow, were not', (185) but from the discussion above it is clear that
important considerations are ignored when the courts embark on enforcing any
form of 'discretionary natural justice'. (186)
Yet the modem duty to act fairly, if it
expresses a general duty of fairness, conceals this danger and carries within
it an inherent contradiction.
(a) In the first place, the
ambiguity of the term 'fair', which fails to distinguish between procedural and
substantive fairness, may encourage judges to ignore procedural faults if the
outcome of the decision was 'substantially fair'. There is already an element
of this form of thinking in Lord Devlin's dicta concerning natural justice in
In re K (Infants), (187) and the temptation will be greater with the flexible
and ambiguous terminology of fairness. This fear may prove to be unjustified,
but a clear statement distinguishing between a procedural duty to act fairly
and a substantive duty to act fairly is needed if my previous comments are
correct.
(b) Secondly, in view of the
relationship of procedure to substance, there is something inherently
contradictory about the general duty to act fairly. If an unfair procedure has
produced (by chance or otherwise) a fair result, how can the court review for
unfairness? For if it declares the decision void for failure to observe
procedural fairness, it does violence to the 'fairness' of the result.
The truth is that a duty to act
fairly which incorporates substantive issues creates a review of the merits,
not just the boundaries of the administrative action (188) This in itself is
not unusual (since decisions must be reasonable), (189) but it is
unobjectionable provided only that review of procedural fairness and review of
substantive fairness are clearly distinguished. (190)
None the less, provided that the
duty to act fairly is kept within the bounds of procedural fairness, this new
approach to the control of administrative procedure is, in my opinion, an
attractive development for reasons best summed up by the following statements:
'I do not think that much help is
to be obtained from discussing whether "natural justice" or
"fairness" is the more appropriate term. If one accepts that
"natural justice" is a flexible term which imposes different
requirements in different cases, it is capable of applying appropriately to the
whole range of situations indicated by terms such as "judicial",
"quasi-judicial" and "administrative". Nevertheless, the
further the situation is away from anything that resembles a judicial or quasi-
judicial situation, and the further the question is removed from what may
reasonably be called a justiciable question, the more appropriate it is to
reject an expression which includes the word "justice" and to use
instead terms such as "fairness", or "the duty to act
fairly"...... The suitability of the term "fairness" in such
cases is increased by the curiosities of the expression "natural
justice". Justice is far from being a "natural" concept. The
closer one goes to a state of nature the less justice does one find." (191)
' More important:
'... the degree and quality of
adherence to natural justice principles is carefully tailored to the type of
discretion and manner in which it is exercised." (192)
And there seems to be no reason
why the duty to act fairly is not appropriate to South African administrative
law as well. (193)
What Does 'Fairness' Mean?
Of course, the immediate problem
raised by adoption of the 'duty to act fairly' is the question what 'fair'
actually means. This is the most difficult question of all, for fairness is
like 'justice' and 'happiness', a contested concept: (194) it is a concept that
admits of different conceptions. As a bare concept, fairness has no meaning,
but the meaning accorded to fairness in any given situation will be a
conception of fairness. But one person's conception of fairness in any given
situation will frequently differ from another's, and this demonstrates that
fairness is a contested concept. Not only will conceptions of fairness differ
because of differences or errors of judgment between individuals, but also
because different individuals may hold different ideas of fairness. While one
individual may consider that the idea of fairness is equality, another may believe
that fairness is the embodiment of consent. To the former, it would be unfair
for A to receive more than half of the proceeds realized from a
treasure-hunting expedition with B, all things being equal, even if A and B had
agreed to this in advance. But the person who believes in fairness as consent
would consider the agreement to be perfectly fair, provided both parties had
freely consented.' (195 )
So while all may agree that
fairness should be upheld, each of us is able (and likely) to find himself
arguing over what fairness dictates in any set of circumstances. As an abstract
concept, fairness is meaningless, and it is not surprising to find a dictionary
(196) defining 'fair', 'just' and 'equitable' in terms of each other. (197)
Thus, if fairness is a contested
concept, it is clear why references to the term by judges are both pleasing and
frustratingly vague. We all uphold the formal notion of fairness, but on its
own the word is not very helpful. Nevertheless, in the legal context it is
possible to find some consensus on the ideal of fairness, since the law is
confined to geographic and cultural localities and usually expresses a
conventional morality by which it has been influenced.
But the task of ascertaining
fairness is a little easier in administrative law, where philosophical
considerations must give way to the practical purpose and function of the
institution to which one is applying the procedural standards.
'We cannot answer important questions about the
satisfactoriness of our administrative agencies and their procedures unless we
understand just what those agencies are expected to do.' (198)
Even where the courts were
accused of adopting a sterile, conceptual approach to judicial review, (199) there was always, implicit in their decisions,
a functional justification for imposing standards of procedure on
administrative bodies. The term 'judicial' was descriptive of the sort of
function that a decision-maker was performing. (200) (201)
Therefore it is possible to
deduce the meaning of fairness in each particular case if we are aware of both
the particular function of the administrative organ in question and the purpose
of the requirement of procedural safeguards-more especially, the requirement of
procedural fairness.
The imposition of procedural
fairness has, therefore, been justified from time to time by the assumption
that it enables certain desired objectives to be reached: accuracy of
decision-making; objectivity; and efficiency. (202) Underlying these
assumptions are value judgments that those objectives are desirable-one could
imagine an administrative state where the sole objective was efficiency in
administration, in which case accuracy may take only second place and
objectivity none at all.
So even the purely utilitarian
approach to procedural standards is based upon moral notions of fairness.
In addition to this intuitive
functionalism, another objective seems to have been protected by the courts in
decisions involving procedural fairness. This objective has probably been best
expressed as 'process value' by Professor Summers, (203) and is implicit in the maxim: 'the ends don't
justify the means.'
Here I propose to examine the
broad rationale underlying procedural fairness and shall try to show that the
cases and writings on natural justice manifest a concern for two basic
objectives in the administrative decision-making process: that is, that the
process will be accurate (and, related to this, that even if not accurate, the
process will be the most likely to ensure accuracy), and that the process will
pay due regard to decency and individual dignity.
(a) Accuracy. Liberal Western society assumes that state interference
with an individual requires a justification and that its action be authorized
by law-the principle of legality-and that this interference be not arbitrary.
(204) For the power of interference to be exercised certain circumstances must
exist (jurisdiction), and we probably expect the agent of the state to make as
full and objective an assessment of the relevant circumstances as possible
before deciding upon a course of action.
Perhaps the central motive for
applying the principles of natural justice or fair procedure, therefore, is to
ensure that jurisdictional facts and relevant circumstances have been
accurately assessed. This has been labelled as 'fairness as accuracy' by one
American writer, (205) and is acknowledged as the purpose of procedural due
process in the United States. (206) Thus requirements of fair procedure are
thought likely to 'minimise substantively unfair deprivation of property'. (207)
'The rules and principles of procedural fairness (in the narrow sense) all are
designed to promote the correct decision of disputes. (208)
That this is the prime justification
for the application of procedural standards in England is clear from judicial
statements in old and modern cases. In Cooper v Wandsworth Board of Works (209)
Erle CJ could 'conceive a great many advantages' for the Board to hear a party
before acting, including enabling
the party to demonstrate that, despite appearances, he might in fact have
complied with the correct procedures, in which event the Board would not have
had authority to act as it did.
And, of course, Lord Reid's third
class of employee, who could be dismissed only if there was 'something against'
him (ie a cause for dismissing him) , (210) is entitled to a hearing, since his
explanation might, for example, 'disprove criminal motive or intent and bring
forward other facts in mitigation'. (211) In a more recent case, John v Rees,
(212) Megarry J explained that although
circumstances may appear to speak for themselves,
'. .. the path of the law is strewn with examples of open
and shut cases which, in the event, were completely answered; of inexplicable
conduct which was fully explained; of fixed and unalterable determinations
that, by discussion, suffered a change'. (213)
Most recently, Buckley LJ suggested that a
useful test to determine whether or not natural justice applies is to ask
whether there is a condition which must first be satisfied before a power can
be exercised. (214) If this was so, the
determination of the existence of such a condition could be facilitated by
natural justice.
If hearing the other side enables
the holder of the power to have all the relevant circumstances placed before
him, absence of bias enables him to assess these circumstances objectively, for
only an objective assessment will ensure that the power is exercised in
circumstances which really exist. Objectivity is another aim of natural
justice. (215)
The goal of accuracy is so
important that the requirements of fair procedure are enforced by the courts as
a policy, which 'far transcends the significance of any particular case'. (216)
Observance of natural justice is a
'canon of good administration', (217) a 'long range principle of action' (218)
and the 'best insurance against accidents'. (219) The importance of such
procedures is 'overwhelning', (220) and for this reason the tendency to overlook
procedural irregularities where they may not, in fact, have affected the
substance of the case has been roundly condemned. (221)
Nowhere is the enforcement of
procedural standards as a policy clearer than in cases involving possible bias.
For it is politic that '[j]ustice be rooted in confidence and confidence is
destroyed when right-minded people go away thinking: "the judge was
biased" '. (222) Even though the House of Lords was convinced that their
Lord Chancellor was not 'in the remotest degree' influenced by personal
interest, as a 'lesson to all inferior tribunals to take care not only that in
their decrees they are not influenced by their personal interest, but to avoid
the appearance of labouring under such an influence' the House set aside his
decrees. (223)
(b) Process Values. Perhaps closely allied to the purpose of enforcing
procedural standards as a policy is the enforcement of these standards because
they are valued for their own sake. This rationale is a 'neglected topic',
(224) because it is so much assumed as to be commonly understood and also
because we tend to assume that procedures are valued for their efficacy in
producing a good result (225) alone. But even if it were true that procedures
are valued solely for the results they achieve, there is still an underlying
value judgment that, among the results to be achieved, the dignity of the
individual should be observed. (226)
Efficiency must give way to
individual dignity where the ends do not justify the means.
Thus procedures must conform to
'those canons of decency and fairness which express the notipns of justice of
English-speaking people even toward those charged with the most heinous offenses'.
(227) This Kantian notion of fairness is expressed by the exhortations of
various writers to observance of procedures on the basis that we 'attach value
to the individual's being told why the agent is treating him unfavourably and
to his having a part in the decision'. (228)
The value in the enforcement of
procedural standards is perhaps recognized in Lord Hewart CJ's famous dictum
that 'justice should not only be done, but should manifestly and undoubtedly be
seen to be done'. (229) In Western civilization we have 'come to expect minimum
procedural standards', (230) and even if failure to observe these standards
leads only to a 'feeling of grievance' (231) the courts place great importance
upon their symbolic function, (232) holding, for example, that a breach of
natural justice is itself a miscarriage ofjustice. In John v Rees Megarry J
said that natural justice would ensure accurate results, and that 'those with
any knowledge of human nature who pause to think for a moment' would not be
'likely to underestimate the feelings of resentment of those who find that a
decision against them has been made without their being afforded any
opportunity to influence the course of events'. (233)
Where administrative powers are
subjectively phrased, perhaps greater value is placed upon procedures than ever
before, because procedure becomes more and more simply a method of ensuring
'pure procedural justice'. (234)
It seems, therefore, that
procedural standards are enforced for a variety of reasons. (235) These objectives probably bear a close
interrelationship to each other, but a procedure is perhaps only fair if it
serves the objectives of accuracy whilst at the same time being consistent with
respect for individual integrity and participatory democracy. Sophisticated
standards of procedure are not only more efficient but represent the
conventional morality of modern Western society. Although these two main
objectives are interrelated, (236) it is
essential that they be recognized as separate ends in their own right,
particularly in the face of administrators' objection that 'fair' procedures
hinder efficient administration. A proper assessment of all the functions that
procedures serve will facilitate a more accurate determination of what
constitutes a fair procedure in each individual case.
CONCLUSION
Natural justice is entirely a
creation of the common law. In its vigour and especially in its new-found
vitality, as clothed in the duty to act fairly, it is little short of a miracle
of judicial creativity. Provided the temptation to resort to a form of 'bush
justice'-a temptation which it is conceded becomes more real when the fairness
approach is employed-is resisted, my view is that the duty to act fairly
affords scope for the development of urgently required procedural safeguards
against arbitrary administrative action such as has not been available under
the orthodox approach to natural justice; natural justice unfortunately
accumulated a mass of dead wood which held up any development.
For when the fairness approach is
combined with the spirit of the statement by M T Steyn J, with which I
conclude, I do believe that our administrative law will enjoy major advancement
at the hands of our judiciary in at least one important area.
'Being rules of the common law, this much can
safely be said of the principles of natural justice, viz: that they have been a
part of our system of law for a very long time and that they are capable of
further formulation, growth and practical application to meet the needs of a rapidly
developing and expanding society which is continually being subjected to an
increasing degree of administrative and bureaucratic regulation and control.
(237)
L G BAXTER
Any determination of disputable fact may, the law
recognises, be imperfect: the law aims at providing the best and safest
solution compatible with human fallibility and having reached that solution it
closes the book.
FOOTNOTES
1 [1964] AC
40.
2 Cf S H
Bailey, C A Cross andJ F Garner Cases and Materials in Administrative Law
(1977) 347 and W McCormack 'The Purpose of Due Process: Fair Hearing or Vehicle
for Judicial Review?' (1974) 53 Texas LR 1257.
3 See, for
example, C A Reich 'The New Property' (1964) 73 Yale LJ 733; B Schwartz
Administrative Law (1976) 2fft; J A Griffith and H Street Principles of
Administrative Law 5 ed (1973) 1f. Cf Beck J in Tabakain v District
Commissioner, Salisbury 1974 (1) SA 604 (R) at 606.
4 For an
excellent survey, see D J Mullan 'Fairness: The New Natural Justice?' (1975) 25
Univ of Toronto LJ 281.
5 See below p
625f.
6 See, for
instance, Motaung v Mothiba NO 1975 (1) SA 618 (0) at 629.
7 As an
eminent commentator has pointed out, natural justice has enjoyed fluctuating
and not very happy fortunes in South African case history: W H B Dean 'Whither
the Constitution?' (1976) 39 THRHR 266 at 282ff.
8 For
example, Professor Marinus Wiechers views natural justice as merely part of the
broad principle that the administrative organ concerned should properly apply
its mind to the case before it (see M Wiechers Administratiefreg (1973) 237. Cf
Milne J in Durban City Council v Jailani Cafd 1978 (1) SA 151 (D) at 154.) With
respect, this view fails to appreciate the wider objectives that procedural
safeguards, such as natural justice, are designed to achieve (see further
below).
9 See below
pp 635-S.
10 H W R Wade
Administrative Law 4 ed (1977) 395.
11 See, for instance, P Henning 'Thoughts on
Administrative Law' (1969) 2 CILSA 86; M Wiechers 'Die Legaliteitsbeginsel in
die Administratiefreg' (1967) 30 THRHR 309 at 321ff; 1977 De Rebus
Procuratoriis 435; 1977 De Rebus Procuratoriis 677.
12 Marinus Wiechers 'Administrative Law' in The
Law of South Africa 1 (1976) ed W Ajoubert (hereinafter referred to as LAWSA I)
50ff (para 82).
13 See, for example, Publications Control Board
v Central News Agency Ltd 1970 (3) SA 479 (A) at 488f; Adjunk-Minister van
Landbou v Heatherdale Farms (Pty) Ltd 1970 (4) SA 184 (T) at 186. For a very
recent example of this method of approach, see Meyer v Prokureursorde van
Transvaal 1979 (1) SA 849 (l).
14 W A Robson Justice and Administrative Law 3 ed
(1951) 391.
15: Ibid.
16 But they
may, by coincidence, be judicial for other purposes as well: for example, where
proceedings are described as judicial for the purpose of requiring certain
procedural formalities as well as for the purpose of determining the existence
of privilege where defamation is alleged (cf S A de Smith Judicial Review of
Administrative Action 3 ed (1973) 65f).
17 Robson op cit 392.
18 See the discussion concerning 'purely
administrative' acts, below pp 615-17.
19 See J
Willis 'Three Approaches to Administrative Law: The Judicial, the Conceptual
and the Functional' (1935-6) 1 Univ of Toronto LJ 53; A Gelinas 'Judicial
Control of Administrative Action: Great Britain and Canada' 1963 Public Law
140; Griffith and Street Principles of AdminisHeinOnline trative Law 140ff;
20 Mironi
'The Functional Approach to Judicial Oversight of Specialised Tribunals-A Case
Study' (1977) 52 New York Univ LR 745; and H W Arthurs 'Rethinking
Administrative Law: A Slightly Dicey Business' (1979) 17 Osgoode Hall LJ 1 at
26-33. 20 Mironi op cit 748.
21 Griffith and Street op cit 144.
22 Mironi op cit 748.
23 LA WSA
135ff.
24 See, for
example, G M Cockram Administrative Law (1976) 59.
25 LAWSA 150
(para 82).
26 Per Hall
JA in Laubscher v Native Commissioner, Piet Retief 1958 (1) SA 546 (A) at 553.
27 Pretoria North Town Council v Al Electric
Ice-cream Factory (Pty) Ltd 1953 (3) SA 1 (A) at 11. Other judges have more
recently reminded us of these words (see Willamson JA (dissenting) in South
African Defence and Aid Fund v Minister ofJustice 1967 (1) SA 263 (A) at 277ff;
and Nestadt J in Carr vJockey Club 1976 (2) SA (W) at 720).
28 See below.
29 See, for example, M Wiechers 'Die
Kwasie-judisiele Administratiewe Handeling' (1966) 29 THRHR 201; H Street
'Quasi-judicial and the Maxim Audi Alteram Partem' (1967) 84 SALJ 385; Henning
(1969) 2 CILSA 86 at 90ff.
30 See, for
example, Wade Administrative Law 531ff.
31 Wiechers ascribes the development of the use
of 'quasi-judicial' to the peculiarities of the English system of remedies in
administrative law (see Administratiefreg 131ff and (1966) 29 THRHR 201 at
204ff). But this is only part of the explanation; more important is the use of
the term in the application of the principles of natural justice, as will
appear in the ensuing text.
32 Cooper v
Wandsworth Board of Works (1863) 14 CB (NS) 180 (143 ER 414).
33 Wade Administrative Law 430.
34 Idem 430f
86
35 [1940] Ch
70 (CA).
36 H W R Wade '"Quasi-Judicial" and its
Background' (1949) 10 Cambridge LJ 216 at 218.
37 Roper J put it admirably in Hack v Venterspost
Municipality 1950 (1) SA 172 (W) at 190: 'I think it is probably correct to say
that as a general rule, a tribunal, or a body, even if administrative, must
exercise its functions in a judicial or quasi-judicial way whenever it is
empowered to make decisions, not in its own arbitrary discretion, but as a
result of an enquiry into matters of fact, or of fact and law. . . .' See also
Lek v Estate Agents Board 1978 (3) SA 160 (C) at 171.
38 Cmd 4060, commonly called the Donoughmore
Report, after its chairman.
39 Idem 73.
40 The
Committee's definition is quoted in Peri-Urban Areas Health Board v
Administrator, Transvaal 1961 (3) SA 669 (T) at 674.
41 See Griffith and Street Principles of
Administrative Law 141.
42 See Wiechers (1966) 29 THRHR 201 at 206.
43 Wade
(1949) 10 Cambridge LJ 216 at 228.
44 A term stretched to 'breaking point' (H W R
Wade (1951) 67 LQR 103 at 106).
45 For a
concise discussion, see Wade Administrative Law 444ff.
46 [1924] 1 KB 171 (CA).
47 [1964] AC
40, especially at 71ff.
48 Idem at 72.
49 R v
Electricity Commissioners [1924] 1 KB 171 (CA) at 205 (my emphasis).
50 R v Legislative Committee of the Church
Assembly, ex parte Haynes-Smith [1928] 1 KB 411 at 415.
51 See Lord Reid's judgment in Ridge at 75.
52 See generally, De Smith Judicial Review of
Administrative Action 68ff.
Indeed, in
Canada, where Lord Hewart's interpretation is still followed (see, for example,
Mullan (1975) 25 Univ of Toronto LJ 281 at 288-96), this search for 'clues' of
the presence of a duty to act judicially is still pursued (see, for example, Re
Tottrup and the Queen in Right of the Province of Alberta (Alta SC) (1978) 79
DLR (3d) 533). However, since this article was completed, the Canadian Supreme
Court, splitting five to four, has approved the fairness doctrine for Canadian
administrative law (see Re Nicholson and Haldimand-Norfolk Regional Board of
Commissioners of Police (1979) 88 DLR 671 at 679-83). As will be shown later,
this provides a means of avoiding the difficulty created by such reasoning (see
below 625-6).
53 [1964] AC 40 at 76.
54 Idem at 75ff
55 See, for example, De Smith Judicial Review 64.
Cf counsel in R v Gaming Board for Great Britain, exparte Benaim and Khaida
[1970] 2 QB 417 (CA) at 423.
56 Lord Denning MR in R v Gaming Board for Great
Britain, ex parte Benaim and Khaida (supra) at 430. But cfN P Gravells 'Fairness
as the Basis of Procedure for Decision-making Bodies' (1976) 39 Modern LR 342.
57 J Bennett Miller 'The Place of the
Quasi-judicial Decision in Scots Law' (1958) 3 Juridical Review (NS) 39 at
43-4.
58 1974 (1)
SA 396
59 1977 (4)
SA 99 (C).
60 At 107H (my emphasis).
61 See Wade
(1951) 67 LQR 103 at 106; Wiechers Administratiefreg 128.
62 See, for
example, Winter v Administrator-in-Executive Committee 1973 (1) SA 873 (A) at
890-1; Minister of the Interior v Bechler 1948 (3) SA 409 (A) at 452. Cf R v
Secretary of State for the Home Office, exparte Hosenball [1977] 3 All ER 452
(CA) at 457.
63 For
example Stanton v Minister ofJustice 1960 (3) SA 353 (T) at 360.
64 1966 (3)
SA 250 (A).
65 Act 57 of
1957.
66 Idem at
263. Cf Laubscher v Native Commissioner, Piet Retief 1958 (1) SA 546 (A), a
case involving an unsuccessful application for a residence permit in a
restricted area: 'It would be a very difficult thing to set a formula which
would satisfactorily distinguish in all cases "administrative" duties
from "quasi-judicial" duties of a person like the commissioner.
Fortunately it is not necessary to do this in this particular case, for ... the
duties of the commissioner in granting or refusing an application for the
necessary permission, are clearly purely administrative duties': per Reynolds
AJA at 550. Cf Hall AJA at 554.
67 At least
where so-called adjudicative facts are in dispute (see K C Davis 'The
Requirement of a Trial-type Hearing' (1956) 70 Harvard LR 193).
68 Wiechers
Administratiefreg 141ff, 228ff and (1966) 29 THRHR 201 at 217ff.
A recent
example of the same approach (although not here directly concerned with natural
justice) is to be found in Durban City Council vJailani Cafi 1978 (1) SA 151
(D), where MineJ followed Modimola, holding that expropriation by the
Administrator under the authority of a Local Government Ordinance is a 'purely
administrative act' (at 153).
In his
extempore judgment his lordship even went as far as suggesting that the
exercise of a 'purely administrative act' does not entail a duty to take into
account all relevant considerations (at 153f). The sole requirement is that the
power be exercised 'fairly and honestly', which means 'no more than that the
Council shall have applied its mind to the question... and shall have acted
honestly' (at 154).
The view that
the all-important criterion is whether the official or body applied his or its
mind to the issue is one held by Wiechers as well, even where the principles of
natural justice are concerned (see Administratiefreg 237: 'In wese kom dit
daarop neer dat die nakoming van die rells van natuurlike geregtigheid verseker
dat die administratiewe orgaan sy behoorlike aandag aan die saak skenk'). This
view leads Wiechers to conclude that observance of natural justice is not an
end in itself, but that if it can be shown that, notwithstanding failure to
observe natural justice, the body or official concerned actually did apply its
mind to the case, non-observance of natural justice will not affect the
legality of the action. But here Wiechers seems to be overlooking the fact that
the application of one's mind is not in itself an end either: surely the
requirements of natural justice and the application of one's mind are both
aimed at ensuring a fair assessment of the circumstances and a fair decision.
They are not,
however, the same requirements; the most partisan of officials can be said to
have 'applied his mind' to a case before him, and all can 'apply their minds'
to a situation without hearing the other side. In neither case will the
requirement achieve any more than a serious attitude to the issue. The
principles of natural justice, on the other hand, aim (at the very least) at
encouraging a certain degree of objectivity and accuracy in the making of the
decision (see further, below 635ff).
69 1974 (4)
SA 870 (A).
70 Oberholzer
v Padraad van Outyo 1974 (2) SA 168 (SWA).
71 1974 (4)
SA 870 (A) at 875-6. See also Terblanche v Minister van Vervoer 1977 (3) SA 462
(T) at 470.
72 Per
Schreiner JA in Pretoria North Town Council v Al Electric Ice-cream Factory
(Pty) Ltd 1953 (3) SA 1 (A) at 11. Cf Nchabaleng v Director of Education (Tvl)
1954 (1) SA 432 (T) at 440.
73 Per
RumpffCJ in Oberholzer v Padraad van Outjo 1974 (4) SA 870 (A) at 876 (in
translation). See also the New Zealand case of Lower Hutt City Council v Bank
[1974] 1 NZLR 545 at 549.
74 1974 (3)
SA 633 (A).
75 1977 (1)
SA 832 (RAD).
76 CfLAWSA I 39 (para 71n4).
77 Per
O'HaganJ in R v Nomveti 1960 (2) SA 108 (E) at 120.
78 1959 (1)
SA 651 (A) at 660.
79 The cases
endorsing this view are too numerous to cite. For a few recent examples, see
Surtees' Silk Store (Pty) Ltd v Community Development Board 1977 (4) SA 269 (W)
at 273-4; Davies v Administrator, Cape Province 1973 (3) SA 804 (C) at 810;
Winter v Administrator-in-Executive Committee 1973 (1) SA 873 (A) at 888;
Administrateur van Suidwes-Afrika v Pieters 1973 (1) SA 850 (A) at 860;
Publications Control Board v Central News Agency Ltd 1970 (3) SA 479 (A) at
488; and South African Defence and Aid Fund v Minister ofJustice 1967 (1) SA
263 (A).
80 Dabner v South African Railways and Harbours
1920 AD 583 at 598.
81
Publications Control Board v Central News Agency (supra) at 488. Cf R v
Ngwevela 1954 (1) SA 123 (A) at 127; and Surtees' Silk Store (Pty) Ltd v
Community Development Board (supra) at 275.
82 Minister of the Interior v Bechler 1948 (3) SA
409 (A) at 451. Cf Tabakain v District Commissioner, Salisbury 1974 (1) SA 604
(R) at 606; and Minister of the Interior v Mariam 1961 (4) SA 740 (A) at 751.
83 R v
Nomveti 1960 (2) SA 108 (E) at 116.
84 Idem at
120.
85 Down v
Malan NO 1960 (2) SA 734 (A) at 741.
86 Adjunk-Minister van Landbou v Heatherdale
Farms (Pty) Ltd 1970 (4) SA 184 (T) at 186.
87 See
Wiechers Administratiefreg 226ff and LAWSA 138 (para 71).
88 1958 (1)
SA 546 (A).
89 At 549. Cf
Reynolds AJA at 550-1.
90 1973 (1)
SA 850 (A). Cf, recently, Meyer v Prokureursorde van Transvaal 1979 (1) SA 849
(T) at 853.
91 At 860,
per Botha JA, delivering the judgment of the court. My emphasis.
92 That is
not to say that all privileges are rights or that a privilege which is a right
is nothing else as well (see A R White 'Privilege' (1978) 41 Modern LR 229).
93 At least in theory: see below pp 622-3.
94 Wade (1951) 67 LQR 103.
95 [1951] AC
66. Cf R v Metropolitan Police Commissioner: Exparte Parker [195312 All ER 717,
[1953] 1 WLR 1150; and for discussion see De Smith Judicial Review of
Administrative Action 149-50 and Wade Administrative Law 439ff.
96 [1951] AC 66 at 78.
97 [1964] AC
40 at 77-9. Cf Lord Hodson at 133.
98 For instance, De Smith Judicial Review 165-6;
P Jackson Natural Justice (1973) 43f; and Wade Administrative Law 440.
99 [1970] 2
QB 417 (CA).
100 At 429.
101 Cf dicta
of Lord Denning MR in Schmidt v Secretary of State for Home Affairs [1969] 2 Ch
149 (CA) at 171A; Breen v Amalgamated Engineering Union [1971] 2 QB 175 (CA) at
191 (dissenting); and R v Governor of Pentonville Prison, ex parte Azam [1973]
2 All ER 741 (CA) at 750G. See also Megarry V-C in Mclnnes v Onslow Fane [1978]
3 All ER 211 at 217.
102 29 NE 517 (1892).
103 At 517
(due process being claimed, of course, under the United States Constitution).
104 The
doctrine of privilege is discussed extensively by K C Davis in his
Administrative Law Treatise (1958) I §§ 7.11-7.20. See also his 'The
Requirement of a Trial-type Hearing' (1956) 70 HarvardLR 193 at 222ff; and W
Gelhom and C Byse Administrative Law: Cases and Comments 6 ed (1974) 590ff; and
B Schwartz and H W R Wade Legal Control of Government: Administrative Law in
Britain and the United States (1972) 114-21.
105 See
Comment 'Entitlement, Enjoyment and Due Process of Law' 1974 Duke LJ 89; and F
I Michelman 'Formal and Associational Aims in Procedural Due Process' in Due
Process: Nomos XVIII (Yearbook of the American Society for Political and Legal
Philosophy) ed J R Pennock and J W Chapman (1977) 131ff.
106 See W W van Alstyne 'The Demise of the
Right-Privilege Distinction in Constitutional Law' (1968) 81 Harvard LR 1439;
Gellhorn and Byse op cit 600ff; and Schwartz and Wade op cit 115ff.
107 For two of the most recent examples, see
Meachum v Fano 427 US 215 at 231 (1976) and Elrod v Burnes 427 US 347 at 361-2
(1976).
108 See Note 'Democratic Due Process:
Administrative Procedure after Bishop v Wood' 1977 Duke LJ 453 at 465ff. Cf
Michelman op cit 138ff.
109 426 US 341 (1975). Cf Barthuli v Board of
Trustees 434 US 1337 (1977), 54 L ed 2d 52.
110 Note
'Specifying the Procedures Required by Due Process: Toward Limits on the Use of
Interest Balancing' (1975) 88 Harvard LR 1510 at 1528.
111 Cf Van Alstyne (note 106 above) at 1458ff; and
Note 1977 Duke LJ 453 at 472-5.
112 [1966] 2 QB 633 (CA).
113 At 647:
'The right to work has become far better recognised since that time [seventeen
years ago]' (per Lord Denning MR); 651: 'That [her application is not
considered simply because she is a woman] is arbitrary and entirely out of
touch with the present state of society in Great Britain . .. and no longer
justified by present conditions' (per Danckwerts LJ). Cf idem at 650.
114 At 654-5.
Cf Edwards v SOGAT [1971] Ch 354 (CA); Mclnnes v Onslow Fane [1978] 3 All ER
211 at 217.
115 The Times
5 May 1978.
116 C A Reich
'The New Property' (1964) 73 Yale LJ 733. Cf his 'Individual Rights and Social
Welfare: The Emerging Legal Issues' (1965) 74 Yale LJ 1245.
117 1974 (1)
SA 604 (R).
118 At 606. It is true that Beck J justified his
view on the ground that the permit was a control of an existing right (to
trade). Similarly Wiechers (Administratiefreg 136ff) explains that whereas one
has the right to be heard on an application for a trading licence (since
licences are a restriction of a common-law right), and whereas one should have
a right to be heard pending threatened Expropriation (since expropriation
affects an existing right in property), an individual who seeks a permit to
live in a certain area has no claim to a hearing, since he seeks a favour
('begunstigende beskikking' 137)). But this reasoning seems to me to be
strained: it is arbitrary to claim that there is a general right to trade but
no general right to live where one pleases. Both are really liberties and it is
only present-day political realities that create the impression that the former
is any less capable of restriction by statute than the latter. The point is
that the 'existing rights' argument is circular.
119 See
further below pp 624-5.
120 341 US
123 (1961).
121 At 185. Cf Van Alstyne (note 106 above) at
1451-2.
122 Per Lord Loreburn LC in Board of Education v
Rice [1911] AC 179 at 182. CfFernandez v South African Railways 1926 AD 60 at
68.
123 CfJackson
Natural Justice 47ff.
124 See T M
Scanlon 'Due Process' in Due Process: Nomos XVIII 93, especially at 112-13.
125 Cf Central Council for Education v Edwards
(note 115 above).
126 Cf Gellhorn and Byse op cit 603; and,
generally, Reich (1964) 73 Yale LJ 733. HeinOnline -- 96
127 Cf
Gellhorn and Byse op cit 602.
128 See above
pp 613ff.
129 See below p 626-7.
130 Cf De Smith Judicial Review of Administrative
Action 208.
131 [1967] 2
QB 617.
132 At 630.
Cf Salmon LJ: '... but he must act . . . fairly in accordance with the ordinary
principles of natural justice.... Of course. .. [he] is acting in an
administrative rather than in a judicial capacity' (at 633). Cf BlainJ at 636.
133 [1970] 1 WLLR 1428.
134 At 1433.
135 [1969] 2
Ch 149 (CA) at 170-1, per Lord Denning MR. For subsequent express approval by
Lord Denning MR., see R v Gaming Board for Great Britain, ex parte Benaim and
Khaida [1970] 2 QB 417 (CA) at 430; Breen v Amalgamated Engineering Union
[1971] 2 QB 175 (CA) at 190 (dissenting); Re Pergamon Press [19711 Ch 388 (CA)
at 389; and R v Secretary of State for the Home Office, ex parte Hosenball
[1977] 3 All ER 452 (CA) at 459f.
136 See note 135 above, and below.
137 [1971] AC 297, especially at 309 ('I approach
the present case by considering whether in all the circumstances the tribunal
acted unfairly'-Lord Morris of Borth-y-Gest); cf at 310 and 320 .. in the
interests of natural justice, or fairness . . .'-Lord Wilberforce).
138 [1972] 2
All ER 6 (HI.) at 17 and 19 (Lords Pearson and Salmon).
139 [1973] AC
660 (PC) at 679 (Lord Morris of Borth-y-Gest for the majority).
140 Lewis v
Heifer [1978] 3 All ER 354 (CA) at 367. Cf Wade Administrative Law 447; and
Lord Denning The Discipline of Law (1979) 91-4.
141 There is
no doubt that the actual requirements of natural justice are flexible (see
Board of Education v Rice [1911] AC 179 at 182; Local Government Board v
Arlidge [1915] AC 120 at 130, 140; Maclean v Workers' Union [1929] 1 Ch 602 at
620; General Medical Council v Spackman [1943] AC 627 at 638; and cf the Report
of the Committee on Administrative Tribunals and Enquiries (the 'Franks
Committee') (HMSO Cmnd 218, July 1957) para 25). The celebrated dictum of
Tucker LJ in Russell v Duke of Norfolk [1949] 1 All ER 109 (CA) at 118
emphasizing this aspect of natural justice has been 'repeatedly cited with
approval' by the House of Lords (see Lord Hailsham of St Marylebone LC in
Pearlberg v Varty [1972] 2 All ER 6 (HL) at 11) and has 'found special favour in
the Commonwealth' (see D G T Williams 1973 Annual Survey of Common Wealth Law
198f). It has been expressly approved in South Africa (see, for example, Turner
v Jockey Club of South Africa 1974 (3) SA 633 (A) at 646). Indeed, not only are
the requirements necessarily flexible, but it is desirable that this be so (cf
Spackman [1943] AC 627 at 644; Maxwell v Department of Trade and Industry
[1974] 2 W-L1 338 at 349; Stevenson v United Road Transport Union [1977] 2 All
ER 941 (CA) at 951; and Lord Morris of Borth-y-Gest 'Natural Justice' (1973) 26
Current Legal Problems 1 at 15: 'Their lack of rigidity is their virtue).'
142 Per
Lawton LJ in Selvarajan v Race Relations Board [1976] 1 All ERL 12 (CA) at 22.
143 For
example R v Kent Police Authority, ex parte Godden [1971] 2 QB 662 (CA) at 671;
R v Gaming Board for Great Britain, ex parte Benaim and Khaida [1970] 2 QB 417
(CA) at 430; R v Liverpool Corporation, ex parte Liverpool Taxi Fleet Operators
Association [1972] 2 QB 299 (CA) at 307-8; Breen v Amalgamated Engineering
Union [1971] 2 QB 175 (CA) at 190-1; and Selvarajan v Race Relations Board
[1976] 1 All ER, 12 (CA) at 19, 22. Cfalso Wiseman v Borneman [1971] AC 297 at
309.
144 [1974] 2 All ER. 122 (CA).
145 At 131-2.
146 See
Judicial Review of Administrative Action 208; Constitutional and Administrative
Law 3 ed (1977) 573. Cf D G T Williams 1969 Annual Survey of Commonwealth Law
133.
147 Mullan
'Fairness: The New Natural Justice?' (1975) 25 Univ of Toronto LJ 281 at 305n104
lists nineteen reported decisions 'which have recognised in some form or
another the theory of procedural fairness'. To these may be added: R v Barnsley
Municipal Borough Council, ex parte Hook [1976] 3 All ER 452 (CA); Hanson v
Church Commissioners for England [1978] QB 823 (CA); Stevenson v United Road
Transport Union [1977] 2 All ER 941 (CA); R v Secretary of State for the Home
Department, ex parte Hosenball [1977] 3 All ER 452 (CA); Ostreicher v Secretary
of State for the Environment [197813 All ER 82 (CA); Norwest Hoist Ltd v
Department of Trade [1978] 3 All ER, 280 (CA); Mclnnes v Onslow Fane [1978] 3
All Ell 211; Lewis v Heifer [1978] 3 All ER 354 (CA); and Central Councilfor
Education and Training in Social Work v Edwards The Times 5 May 1978. It is of
considerable interest to note that the Canadian Supreme Court has, by a narrow
majority, now also accepted the doctrine of fairness as outlined here (see Re
Nicholson and Haldimand-Norfolk Regional Board of Commissioners of Police
(1979) 88 DLR (3d) 671 at 680-3).
148 Cf De Smith Constitutional and Administrative
Law 573: 'Sometimes different judges use the same term to convey different
ideas, or different terms to convey the same idea.' And see further below p
633.
149 In a
number ofjudgments the judges have used the terms interchangeably, as if there
were no difference (see, for example, Parker LCJ and Salmon LJ in In re H K (An
Infant) [1967] 2 QB 617 at 633, 636; Sachs LJ in Re Pergamon Press [1971] Ch
388 (CA) at 402f; Lawton LJ in Maxwell v Department of Trade [1974] 2 All ER
122 (CA) at 131 and Selvarajan v Race Relations Board [1976] 1 All ER 12 (CA)
at 22; Roskill LJ in Exparte Hanson [1978] QB 823 (CA) at 837; Geoffrey Lane LJ
in Exparte Hosenball [1977] 3 All ER 452 (CA) at 463 and Norwest Holst Ltd v
Department of Trade [1978] 3 All ER 280 (CA) at 296; and Ormrod LJ in Lewis v
Heifer [1978] 3 All ER 354 (CA) at 367. Recently in Stevenson v United Road
Transport Union [1977] 2 All ER 941 (CA) Buckley LJ specifically rejected
counsel's contention to the effect that cases could be classified into those
where natural justice applied and those where only fairness applied (at 950f).
150 J F
Garner Administrative Law 4 ed (1974) 128.
151 This
interpretation may perhaps bejustified by the tenor of certain of the cases
dealing with fairness, where the judges have seemed to indicate that fairness
is some sort of lesser standard (see, for instance, Lord Pearson in Pearlberg v
Varty [1972] 2 All ER 6 (HL) at 17 and Viscount Dilhorne at 15f; and Megarry J
in Bates v Lord Hailsham of St Marylebone [1972] 1 WLR 1371 at 1378). Certainly
this is the interpretation that has been placed on these words by Garner (note
150 above). Cf R E Wraith and P G Hutchinson Administrative Tribunals (1973)
344f; Bailey, Cross and Garner Cases and Materials in Administrative Law 346; J
F Northey 'Pedantic or Semantic' 1974 NZLJ 133 at 137, 'The Aftermath of the
Furnell Decision' (1974-6) 6 NZULR 59 passim, and his case note in 1979 NZLJ
146. See also W Birtles 'Natural Justice Yet Again' (1970) 33 Modern LR 559 at
561, where, discussing the developments since In re HK(An Infant), he says
'[slubsequent decisions on the admission of Commonwealth immigrants have shown
how easy it is for the courts to narrow the meaning of "acting with
fairness" to the point of extinction'. And it is submitted that this would
be a fair interpretation of the judgment of Megarry V-C in the recent case
ofMclnnes v Onslow Fane [1978] 3 All ER 211, where the Vice-Chancellor held
that fairness went no further than ensuring that the body concerned acted
honestly and without bias or caprice.
152 See the criticisms by Garner Administrative
Law 128 and D G T Williams 1974 Annual Survey of Commonwealth Law 120 of Machin
v Football Association The Times 21 July 1973, where Lord Denning MR had
included in the requirement that the Association act fairly the duty to 'come
to a fair decision' (my emphasis). In HTV Ltd v Price Commission [1976] ICR
170, Lord Denning MR equated a misuse of power with unfairness, which it surely
is, but at the same time referred to precedents concerning abuse of discretion
(at 186). And Scarman LJ quite clearly regarded the duty to act fairly, as
developed in recent cases, as embracing substantive aspects ofjudicial review
(at 189). (Cf Wade Administrative Law 447n2.)
153 Especially Lawton LJ in Maxwell [1974] 2 All
ER 122 (CA) at 131 and Selvarajan [1976] 1 All ER 12 (CA) at 22. Cf Megarry V-C
in Mclnnes [1978] 3 All ER 211 at 219b-e.
154 See note 149 above.
155 Maxwell
[1974] 2 All ER 122 (CA) at 132.
156 Ridge v
Baldwin [1963] 1 QB 530 (CA) at 578, [1964] AC 40 at 115; Wiseman v Borneman
[1971] AC 297 at 309. Cf E C S Wade (1947) 63 LQR 164 at 169 and B Schwartz
(1947) 63 LQR 43 at 45.
157 Board of
Education v Rice [1911] AC 179 at 182.
158 Fairmount
Investments Ltd v Secretary of State for the Environment [1976] 2 All ER 865
(HL) at 874, [1976] 1 WLR 1255 at 1265.
159 Secretary
of State for Education and Science v Metropolitan Borough of Tameside [1976] 3
All ER, 665 (CA & HL), per Lord Denning ML in the Court of Appeal.
160 In re HK
(An Infant) (supra) and the subsequent cases discussed above.
161 Furnell v
Whangerei High Schools Board [1973] AC 660 at 679; Lewis v Heifer [1978] 3 All
ER 354 (CA) at 367.
162 See especially
the Machin and HTV cases discussed above note 152. In the latter case the Court
of Appeal quite clearly regarded fairness as embracing substantive issues -in
this instance, inconsistency-and exercised powers of review on that ground. And
in Maxwell [1974] 2 All ER 122 (CA) at 132 Lawton LJ, after declaring that he
adopted the duty to act fairly approach in preference to that of natural
justice, declared that '.. . in all these cases there are, in my judgment, two
facets of fairness: what is done and how it is done. Doing what is right may
still result in unfairness if it is done in the wrong way.' And Lord Morris of
Borth-y-Gest even suggests that natural justice (which he summarized as 'fair
play in action') is not only invoked 'when procedural failures are shown' (see
(1973) 26 Current Legal Problems 1 at 16).
163 In
England, that is (see De Smith Judicial Review of Administrative Action 303;
Wade Administrative Law 359-61).
164 Cf'. . . a principle ofjudicial inquiry,
whether fundamental or not, is only a means to an end. If it can be shown in
any particular class of case that the observance of a principle of this sort
does not serve the ends of justice, it must be dismissed; otherwise it would
become the master instead of the servant ofjustice': per Lord Devlin in In re K
(Infants) [1963] 3 WLR 408 (HL) at 434.
165 D Emmet
Rules, Roles and Relations (1966) 80. CfJ Rawls A Theory of Justice (1972)
238f.
166 See
below.
167 Wade
(1948-50) 10 Cambridge LJ 216.
168 See L Fuller The Morality of Law rev ed (1969)
152.
169 Cf Rawls
op cit 59f; P Stein and J Shand Legal Values in Western Society (1974) 84.
170 CfJ L
Mashaw 'The Supreme Court's Due Process Calculus for Administrative
Adjudication in Mathews v Eldridge: Three Factors in Search of a Theory of
Value' (1976) 44 Univ of Chicago LR 28 at 43.
171 That is
not to say that they are unfettered (see Wade Administrative Law 340ffand R
Dworkin Taking Rights Seriously (1977) 31ff).
172 A Theory
ofJustice 83ff. Cf D Resnick 'Due Process and Procedural Justice' in Due
Process: Nomos XVIII 206 at 210-12.
173 A Theory
ofJustice 85.
174 Ibid.
175 Idem 86.
176 [1943] AC
627.
177 At 644-5.
178 [1964] AC
40 at 128.
179 [1961] AC
945 (PC) at 956.
180 R v Sussex Justices, ex parte McCarthy [1924]
1 KB 256 at 259.
181 Byrne v
Kinematograph Renters Society Ltd [1958] 2 All ER 579, [1958] 1 WLR. 762; Glynn
v Keele University [1971] 2 All ER 89, [1971] 1 WLR 487; and Malloch v Aberdeen
Corporation [1971] 2 All ER 1278 (HL), [1971] 1 WLR 1578. For South Africa,
cfDurban City Council v Jailani Cafi 1978 (1) SA 151 (D) and note 68 above.
182 [1971] 2
All ER 1278 (HL) at 1294, [1971] WLR 1 1578 at 1595.
183 Wade
Administrative Law 455.
184 D H Clark
'Natural Justice: Substance and Shadow' 1975 Public Law 27 at 43ff.
185 Per Megarry J in John v Rees [1970] Ch 345 at
402.
186 Cf Clark op cit and Wade (1968) 84 LQR 95 at
110ff.
187 [1965] AC
201 at 238: 'But a principle ofjudicial enquiry, whether fundamental or not, is
only a means to an end. If it can be shown... that the observance of a
principle of this sort does not serve the ends ofjustice, it must be
dismissed....'
188 Or, as
Clark puts it: a 'trial within a review' (op cit 50).
189 In English law (see, for example, Wade
Administrative Law 338ff) although not, it would seem, in South African law
(see, for example, Union Government v Union Steel Corporation (SA) Ltd 1928 AD
220 at 236; but cf discussion of the important case of Theron v Ring van Wellington
van die NG Sendingkerk in SA 1976 (2) SA 1 (A) byJ A v S d'Oliveira 'Diskresie,
Regdwaling en die Hersieningshof: Redelikheid in die Administratiefreg' (1976)
39 THRHR 211 and N E Franklin 'Two Days in the Appellate Division:
Reasonableness, Review and Discretionary Administrative Acts' (1977) 2 Natal
University LR 76.)
190 Even then, review of substantive fairness
should be kept within strict limits where administrative action is concerned,
otherwise the courts lay themselves open to the charge of unwarranted
interference: '.. . the role of the judiciary should be to police the limits of
governmental power against the individual, rather than to review the quality of
governmental policies' (Note (1975) 88 Harvard LR 1510 at 1538).
191 Per
Megarry V-C in Mclnnes v Onslow Fane [1978] 3 All ER. 211 at 219.
192 S
Silverstone (1975) 53 Canadian Bar Review 92 at 94.
193 Our
courts recognize that natural justice is nothing other than an expression of
the ideal of fundamental fairness (see, for example, Minister of the Interior v
Bechler 1948 (3) SA 409 (A) at 452; and, more recently, Motaung v Mothiba NO
1975 (1) SA 618 (0) at 629; Durban City Council vJailani Cafi 1978 (1) SA 151
(D) at 154. Cf De Villiers v Sports Pools (Pvt) Ltd 1977 (1) SA 832 (RAD) at
839). Note also the extensive use of 'fairness' by Botha JA in Turner v Jockey
Club of South Africa 1974 (3) SA 633 (A).
194 See I
Gallie 'Essentially Contested Concepts' (1956) 56 Proceedings of the
Aristotelian Society 167 and Dworkin Taking Rights Seriously 134-5. CfJ M
O'Fallon 'Adjudication and Contested Concepts: The Case of Equal Protection'
(1979) 54 New York Univ LR 19 at 22-4.
195 That is
not to say that the two ideals are mutually exclusive or that only one ideal
may be accommodated at once.
196 Concise
Oxford English Dictionary 6 ed (1976).
197 'So just means lawful and fair; and unjust
means unlawful and unfair' (Aristotle Nicho- macean Ethics Book 5 (Thompson
translation, rev ed (1976)) 172). Rawls (A Theory of Justice) says that he
views 'justice as fairness', but that 'justice as fairness' 'does not mean that
the concepts ofjustice and fairness are the same, any more than the phrase
"poetry as metaphor" means that the concepts of poetry and metaphor
are the same' (12-13). But Rawls is using 'fairness' in a special sense: his
'fairness' expresses the ideal of consent which renders his contractarian model
fair. (Cf his 'rightness as fairness' at 108ff.) One could envisage 'fairness
as justice'-is it not onlyfair that a litigant should obtain a just decision?
It seems to me that when these concepts are used in their abstract form, they
are almost interchangeable, being no more than moral endorsements of behaviour.
It is the uncertainty about exactly what is meant by 'fair' that has led at
least one author to attack the development of the doctrine of procedural
fairness in administrative law (see M Loughlin 'Procedural Fairness: A Study of
the Crisis in Administrative Law Theory' (1978) 28 Univ of Toronto LJ 281).
198 C S Hyneman 'State Administrative Tribunals
and "Fair Play"' (1940) 25 Iowa LR 532 at 533.
199 See above
p 609.
200 The term
was also used as a means whereby the courts could extend the writs of
certiorari and prohibition to control the organ under review (see above pp
610ff).
201 Lord Loreburn LC said that a Board had not
'acted judicially' in not acting in good faith and listening to both sides,
'for that is a duty lying upon everyone who decides anything' (Board of
Education v Rice [1911] AC 179 at 182). A decider of the existence of a set of
circumstances had to act 'judicially' while doing so, even if not when perhaps
later deciding upon a plan of action based upon the circumstances so
ascertained.
202 See
Gellhorn and Byse op cit 579-80, and below.
203 R S
Summers 'Evaluating and Improving Legal Processes-A Plea for "Process
Values"' (1974) 60 Cornell LR 1. Cf the discussion of 'acceptability' by
Gellhorn and Byse op cit 580.
204 Cf Wade Administrative Law 23.
205 M J Perry
'Constitutional "Fairness": Notes on Equal Protection and Due
Process' (1977) 63 Virginia LR 383 at 389.
206 See, for
example, Note (1975) 88 Harvard LR 1510 at 1516ff; R. L Rabin 'Job Security and
Due Process: Monitoring Administrative Discretion Through a Reasons
Requirement' (1976) 44 Univ of Chicago LR 60 at 76.
207 E S
Corwin The Constitution and What it Means Today 13 ed (1973) 331n80.
208 T C Grey
'Procedural Fairness and Substantive Rights' in Due Process: Nomos XVIII 182 at
184.
209 (1863) 14
CB (NS) 180 (143 ER 414).
210 See Ridge v Baldwin [1964] AC 40 at 65. Cf Re
Nicholson and Haldimand-Norfolk Regional Board of Commissioners of Police
(1979) 88 DLR (3d) 671 at 679-80.
211 At 66. Cf Geoffrey Lane LJ in Ex parte
Hosenball [1977] 3 All ER 452 (CA) at 463f.
212 [1970] Ch 345.
213 At 402.
214 Stevenson v United Road Transportation Union
[1977] 2 All ER 941 (CA) at 949.
215 See H L A
Hart The Concept of Law 156, 202 and 'Problems of Philosophy of Law' in
Encyclopaedia of Philosophy vol 6 (1967) 264 at 274.
216 Ridge v
Baldwin (supra) at 114, per Lord Morris of Borth-y-Gest.
217 Wade
Administrative Law 422. Cf Franks Report op cit §§ 21ff and Lord Parker CJ in
In re H (K) [1967] 2 QB 617 at 629f.
218 G Sawyer
Law and Society (1965) 106.
219 Wade
(1948-50) 10 Cambridge LJ 216 at 219. Cf Corwin op cit 252.
220 Clark
1975 Public Law 27 at 49 and Wade Administrative Law 454f.
221 See
above, and especially Clark op cit 43ff and Wade Administrative Law 454f.
222 Metropolitan Properties (FGC) Ltd v Lannon
[1969] 1 QB 577 (CA) at 599, per Lord Denning MR.
223 Dimes v
Grand Junction Canal (1852) 3 HLC 759, especially at 793 (10 ER 301, especially
at 315).
224 Summers
(note 23 above) 1.
225 Idem 2.
226 See S
Kadish 'Methodology and Criteria in Due Process Adjudication-A Survey and
Criticism' (1957) 66 Yale LJ 319.
227 Per Frankfurter J in Rochin v California 342
US 165 at 169 (1952) and Malinsky v New York 324 US 401 at 416f (1945).
228 F I Michelman 'Formal and Associational Aims
in Procedural Due Process' in Due Process: Nomos XVIII 126 at 127. Cf Mashaw op
cit note 17 above 46ff and Summers op cit 23-6.
229 R v Sussex Justices, ex parte McCarthy [1924]
1 KB 256 at 259.
230 De Smith Constitutional and Administrative Law
206.
231 E C S Wade in his introduction to A V Dicey
The Law of the Constitution at cxxxc. Contra Summer op cit 34ff, who contends
that process values are much more fundamental than this.
232 T M
Scanlon 'Due Process' in Due Process: Nomos XVIII 93 at 99. An opportunity 'to
blow off steam'? (Sir Hartley Shawcross QC, arguing in the Court of Appeal in
Franklin v Minister of Town and Country Planning [1947] 1 All ER 612 (CA)).
233 [1970] Ch
345 at 402.
234 See above
p 630.
235 Cf Gelihorn and Byse op cit 579-81, who list
three considerations: accuracy; efficiency; and acceptability.
236 See R L
Rabin 'Job Security and Due Process: Monitoring Administration Through a Reasons
Requirement' (1976) 44 Univ of Chicago LR 60 at 78.
237 Motaung v Mothiba NO 1975 (1) SA 618 (O) at 629
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