The duty to act fairly : a flexible approach to procedural fairness in public administration

Abstract

Administrative action or decision-making which materially and adversely affects the rights or legitimate expectations of any person must be procedurally fair. This right to fair administrative action has been constitutionalised by the Constitution of the Republic of South Africa 1996 and fl eshed out (given content and meaning) in the Promotion of Administrative Justice Act 3 of 2000. The latter Act gives effect to the scope and meaning of this constitutional right by prescribing particular procedures which public offi cials must follow in the performance of their daily functions, in particular those related to a fair procedure. This duty to act fairly ensures that the public offi cial applies his/her mind to a matter by adhering to specifi c procedural requirements, by acting fairly and by giving the individual an opportunity to be heard. Although all of this may sound very rigid the fl exible nature of procedural fairness is clearly recognizable in almost every procedural requirement. The article seeks to explain what the duty to procedural fairness is, what the real nature and content of procedural and substantive fairness is, what exceptions exist with regard to the duty to act fairly, how a breach of procedural fairness is corrected, and what the relationship is between procedural fairness on the one hand and effi ciency and effectiveness in public administration on the other hand.