Procedural fairness, executive decision-making and the rule of law
Author Clive Plasket
Affiliations: Judge of the Supreme Court of Appeal; Honorary Visiting Professor, Rhodes University
Source: South African Law Journal, Volume 137 Issue 4, p. 698-712
The connection between procedural fairness and the rule of law was assumed to be trite until the majority judgment in Masetlha v President of the Republic of South Africa & another 2008 (1) SA 566 (CC). It held that procedural fairness was not part of the rule of law, being a doctrine that only applied in administrative decision-making, and that it was inappropriate to ‘constrain executive power to requirements of procedural fairness’. In Albutt v Centre for the Study of Violence and Reconciliation & others 2010 (3) SA 293 (CC) an attempt was made to undo some of the damage that had been caused by Masetlha (short of overruling it) by holding that in some cases, in order to take a rational decision, the decision-maker was required to hear affected parties. In terms of Albutt, however, the right to a hearing was the exception, rather than the default position. This article argues that the majority decision in Masetlha is wrong and should be overruled, and that the Albutt exception is very much a second-best alternative to a proper right to procedural fairness — to a recognition that procedural fairness is part of the rule of law and that executive decision-makers, as is the case with everyone else who has to decide anything, are required to act fairly.