5. MARCO REFERENCIAL
7.3 Análisis general del municipio de Bojaca
The reasonableness test developed in the Doctors for Life case in respect of legislative participation applies equally in this context. That is, administrators are not only obliged to create the platform for parties to participate but also need to take reasonable measures to ensure that those parties are able to take advantage of that opportunity. Since administrators make various decisions under multiple pieces of legislation, it is unlikely that any two situations will be factually identical. Even where situations may be similar, different administrators may implement different mechanisms which they believe to be reasonable under the circumstances.
Factual variance and administrator subjectivity mean that it is impossible to develop a procedure that will meet the democratic participatory principles in every circumstance. This notwithstanding, ‘[c]ompliance by…government with its procedural fairness obligations is crucial, not only for the protection of citizen’s rights, but also to facilitate trust in the public administration and in our participatory democracy.’451
Without a set procedure that administrators can rely on and the fact that administrators and IAP's may view 'fairness' differently, it may be difficult for an administrator to develop this
4492000 (2) SA 849 (E).
4502000 (2) SA 67 (C).
451Joseph v City of Johannesburg supra note 445 at 72 - 73.
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degree of trust with the participants in the process. One possible remedy is to develop terminology such as 'inform', 'consult' and 'involve' in governing legislation and / or the public participation strategy.
As highlighted earlier, developing precedent around terminology has the potential to create more certainty around appropriate modes of participation but there is a risk that, like the classification of functions doctrine,452 terminology is applied formalistically to the detriment of fairness. This concern can be avoided if terminology is used as a starting point in developing a mode of participation which is adapted in consultation with the IAP's. To use an overworked metaphor, the terminology is the clay that is moulded and shaped (the engagement process) to develop a unique sculpture (the mode of participation). The terminology in this process sets a baseline level of participation which means that each participatory process does not need to be agreed or negotiated from scratch but can be adapted in the interests of fairness. What may become apparent through this process is that the baseline level is not appropriate within the context and is either not considered fair or will be unacceptable to the IAP's. If this is the case, the participatory process can be adjusted or altered at the beginning rather than being criticised at the end of the process for not being up to standard.
Prima facie, such a suggestion would seem to run contrary to the requirement that administrators must act expeditiously.453 While this might be the case in the short-term, in the long-term discussion and agreement surrounding the process that needs to be followed will foster a sense of ownership by the IAP's over the process and the outcome.454 Ownership over the process also means that parties are more likely to trust the process and be satisfied with an outcome, even if it is contrary to their personal view455 as, through this process, there will be a transfer of thoughts, ideas, concerns and information.456Therefore, although there may be delays in the implementation of administrative decisions, it may help avoid appeal and review applications down the line.
452Section 3.2.2 Principle 2: The Principle of Control above.
453 Premier, Mpumalanga and Another v Executive Committee, Association of State-Aided Schools, Eastern Transvaal 1999 (2) SA 91 (CC) at [41].
454Principle 2: The Principle of Control.
455Principle 3: The Social Licence to Operate.
456Principle 1: The Educative Effect.
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The above represents the Utopian ideal where parties expeditiously agree on the process of consultation and (through this agreed process) all the parties are able to express their views, exercise a degree of control over the process and generate a decision that is acceptable to everyone. Parties may not be able to agree on the nature and extent of the participatory process that should be implemented. While this does not bode well for compliance with the democratic participatory principles, at least, from the perspective of the IAP's, Principle 6: The Finality in Decision-making requires that administrative processes move forward and that the administrator in complying with his or her obligation to consult, only needs to have provided a reasonable opportunity to participate and to create an environment in which parties can take advantage of that opportunity. Therefore, where the parties cannot agree on a suitable process, the administrator can select the procedure that will reasonably meet the constitutional principles, which is based on the input from the IAP's and which is guided by the base terminology.
Developing content for the terminology (and the terms 'inform', 'consult' and 'involve') can be drawn from the case law (both pre- and post- 1994). The principles developed from these cases have not been developed with this terminology in mind but are relevant to creating such content as these are approaches that the Courts have held to be fair in certain instances. In these instances, a reasonable opportunity to participate:
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is where the IAP's understand that the purpose of the public engagement is for them to make representations.457 While this may seem like an obvious statement, too often participants are unaware of the administrative process and the stage(s) in that process.They may, for example, believe that a public meeting is being held to inform them of an upcoming project, provide them with information and advise them about when they will be allowed to submit comments or when a further meeting will be held. The administrator, on the other hand, may believe that in consulting with the participants at a public meeting, he or she will have complied with his or her legislative mandate. The notice informing the IAP's of the public engagement should, therefore, provide some guidance as to the purpose of the public engagement (i.e. the stage of the process) and whether the participants will be consulted or involved in the process. Neither the PAJA
457Sokhela v MEC for Agriculture and Environmental Affairs (KwaZulu-Natal) 2010 (5) SA 574 (KZP) at [55].
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nor the Regulations on Fair Administrative Procedures458compel administrators to make this disclosure. Based on what has been mentioned already, it would seem prudent that the first meeting with the identified participants would be to develop the public participation strategy.
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is where the decision-maker or public participation coordinator discloses information that will have an impact on the affected parties and which would result in an adverse decision being taken against those parties.459 This obligation is not an absolute duty but depends on how the administrator came to know of the adverse information, the materiality of the information to the IAP's and the practical implications that such a disclosure requires or triggers.460 Without commenting on whether the notice and comment proceedings adopted in Earthlife Africa (Cape Town) v Director-General Department of Environmental Affairs and Tourism461 met the democratic participatory principles, the Court recognised that in a multi-phased process the participants must be afforded an opportunity to view all draft reports as well as the final report submitted to the competent authority, particularly where there are significant changes to the initial draft.462 A reasonable opportunity must include access to all relevant information throughout the process. The public participation strategy can set out the manner in which information will be disclosed to the participants.•
does not imply that such representation must be an oral hearing as section 3(3)(c) of the PAJA specifically refers to ‘an opportunity to…appear in person’ and so a reasonable opportunity must mean something broader than oral hearings and may include written representations.463However, in recognizing what is appropriate under the circumstances,458GNR 1022 GG 23674 of 31 July 2002.
459Sokhela supra note 457 at [55]; Chairman, State Tender Board v Supersonic Tours (Pty) Ltd 2008 (6) SA 220 (SCA); Chairman of the State Tender Board v Digital Voice Processing (Pty) Ltd [2012] 2 All SA 111 (SCA); Yuen v Minister of Home Affairs 1998 (1) SA 958 (C); Du Bois v Stompdrift-Komanassie Besproeiingsraad 2002 (5) SA 186 (C); Nisec (Pty) Ltd v Western Cape Provincial Tender Board 1998 (3) SA 228 (C); National & Overseas Modular Construction (Pty) Ltd v Tender Board, Free State Provincial Government 1999 (1) SA 701 (C);
Mafongosi v United Democratic Movement 2002 (5) SA 567 (Tk).
460 Simunye Developers CC v Lovedale Public FET College [2010] ZAECGHC 121 (9 December 2010); Thabo Mogudi Security Services CC v Randfontein Local Municipality [2010] 4 All SA 314 (GSJ).
461Earthlife supra note 178.
462Ibid [11] and [12].
463Hoexter op cit note 436 at 371. Also see Bam-Mugwanya v Minister of Finance and Provincial Expenditure, Eastern Cape, and Others 2001 (4) SA 120 (C) in which the court held that the requirement to a hearing does not necessarily mean an oral hearing unless the empowering legislation requires an oral hearing.
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the Courts have held that it may be inappropriate to require uneducated or illiterate people to submit written representations.464 In designing an appropriate public participation process, the administrator must look at the categories of participants who may wish to be involved in the process and design a mode of consultation which caters for their needs so as to ensure that the democratic participatory principles are achieved.
This must be contained in the public participation strategy.
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is where procedural fairness is balanced against the efficiency of the process and the capacity of the administrator when designing a suitable mode of participation.465‘In determining what constitutes procedural fairness in a given case, a Court should be slow to impose obligations upon government which will inhibit its ability to make and implement policy effectively (a principle well recognised in our common-law and that of other countries). As a young democracy facing immense challenges of transformation, we cannot deny the importance of the need to ensure the ability of the Executive to act efficiently and promptly.’466
This, however, does not mean that participation can be dispensed with or its value diminished under the guise of policy implementation or to develop policies which are not linked to a legitimate government purpose. If the administrator too readily dismisses suggestions from participants regarding the manner and form of the participatory process, those participants are not likely to feel involved in the process, trust the process or accept the outcome raising from the process.
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must take into consideration the objects and purpose of the administrative action in light of the empowering legislation.467The above principles are not only relevant when engaging with individuals but are equally applicable when negotiating and agreeing on the modes of participation in respect of projects with the general public. However, designing a strategy in consultation may be more difficult to achieve when the number of people being consulted is large and / or unidentified. Section 4 of the PAJA sets out the appropriate modes of participation where the public at large is concerned.
464Catholic Bishops Publishing Co v State Present 1990 (1) 849 (A); Bam-Mugwanya supra note 463; De Beer v Health Professions Council of South Africa 2005 (1) SA 332 (T).
465Joseph supra note 445 at 77.
466 Premier, Mpumalanga and Another v Executive Committee, Association of State-Aided Schools, Eastern Transvaal supra note 453 at [41].
467HTF Developers (Pty) Limited supra note 446.
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