Presentation-Smith-edited - Centre for Law in Action

“Political interference in the administration: The message sent by the decision in MEC for Health, Eastern Cape v Kirland Investments” Adv. Herlu Smith Date 5 & 6 November 2014

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INTRODUCTION • MEC for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd CCT 77/13 changed the way that one must look at public administration. • There is a need to consider the nature of an administrative action and the developments thereof as it relates to local government.

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ADMINISTRATIVE ACTION (Sec 33 of the Constitution) • Everyone has the right to administrative action that is lawful, reasonable and procedurally fair • Brief clear and powerful

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ADMINISTRATIVE ACTION (Sec 1 of PAJA) • • • • • • •

A decision (of an administrative nature) By organ of state Exercising public power or performing a public function In terms of any legislation (or other empowering provisions) That adversely affects rights That has a direct, external legal effect Excluding the executive powers and functions of municipal councils and that does not fall under the listed exclusions

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DEVELOPMENTS IN ADMINISTRATIVE LAW

• Latest developments a topic of a separate presentation – time does not allow • However, latest tendencies are to extend review of decisions beyond definition of PAJA (legality, rationality, procedural fairness, functus officio, etc.) • Need to be aware of decision on deference (OUTA) 5

DECISION-MAKING IN LOCAL GOVERNMENT • Municipal council does not take only decisions i.t.o. executive powers and functions or policy decisions. • Powers and functions of political office bearers (Mayor, Mayoral Committees, Council Committees, Speaker) • Responsibilities and function of Municipal Manager (Sec 55 Systems Act) • Define roles and responsibilities (Sec 53 Systems Act)

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VOTING AT MEETINGS • 2A. Voting at meetings.—A councillor may not vote in favour of or agree to a resolution which is before the council or a committee of the council which conflicts with any legislation applicable to local government. • How will councillors know? • If they know, what would be the consequences? – Disciplinary Action i.t.o. Code? – Invalid decision? – How to rectify?

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INTERVENTION IN ADMINISTRATION 11. Intervention in administration.—A councillor may not, except as provided by law— – interfere in the management or administration of any department of the municipal council unless mandated by council; – give or purport to give any instruction to any employee of the council except when authorised to do so; – obstruct or attempt to obstruct the implementation of any decision of the council or a committee by an employee of the council; or – encourage or participate in any conduct which would cause or contribute to maladministration in the council.

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CONSTITUTIONAL COURT OF SOUTH AFRICA Case CCT 77/13 In the matter between MEMBER OF THE EXECUTIVE COUNCIL FOR HEALTH, EASTERN CAPE First Applicant

SUPERINTENDENT-GENERAL OF THE EASTERN CAPE DEPARTMENT OF HEALTH

Second Applicant

and

KIRLAND INVESTMENTS (PTY) LTD t/a EYE & LAZER INSTITUTE

Respondent

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THE FACTS….

• A Provincial Advisory Committee recommended that applications for a hospital and two related theatres be refused. • On the strength of the recommendation, the SuperintendentGeneral declined to approve the applications. The decisions were reduced to writing, but before signing it he was involved in a motor vehicle accident and took sick leave for six weeks. • During his absence, the MEC instructed the Acting SG to approve the applications; he complied and Kirland was informed in writing. • The Superintendent-General who had resumed his duties, informed Kirland that the approval was withdrawn.

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COURT DECISIONS • The High Court set aside the Acting SG’s purported approval, the withdrawal of that approval by the SuperintendentGeneral, and the decision of the MEC that upheld the withdrawal. • The state parties appealed to the Supreme Court of Appeal and Kirland cross-appealed the order setting aside the approvals. • The Supreme Court of Appeal overturned the High Court’s order setting aside the approval on the basis that the validity of the approval was not an issue before the Court. • The Supreme Court of Appeal dismissed the appeal by the state parties, but upheld Kirland’s cross-appeal.

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CONSTITUTIONAL COURT DECISION • The Constitutional Court affirmed the judgment of the Supreme Court of Appeal. The majority judgment, written by Cameron J and concurred in by Moseneke ACJ, Skweyiya ADCJ, Dambuza AJ, Froneman J, Mhlantla AJ and Nkabinde J, holds that the validity of the Acting Superintendent-General’s decision was not before the courts.

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IMPORTANT PRINCIPLES … • The political head (MEC) did not have the power to approve, because the SG was legally required to do so. • Conduct is incompatible with principles of section 195 of the Constitution • Even if a decision is unlawful and invalid it is not a “non-decision”. • Such a decision must be set aside by a court.

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IMPORTANT PRINCIPLES • Decision to revoke was invalid because the Acting SG was functus officio. • Even an invalid decision has legal consequences until set aside through judicial process. • Government must do right and it must do it properly. • PAJA – review within 180 days

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IMPACT OF KIRLAND DECISION…

• If Government takes an incorrect decision, it cannot simply ignore it, or amend it; a formal review application must be made to court. • Even if the decision is defective, an application to Court must be made – a defective decision is not a “non-decision”. (Oudekraal 1 decision affirmed) • The subject affected by a defective decision is entitled to proper notice and a hearing. • Kirland principles applicable to decisions in terms of PAJA (administrative action) and thus following outside definition of PAJA

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IMPACT OF KIRLAND DECISION

• There is a higher duty on the state to respect the law, to follow due process and to tread carefully when dealing with rights. • Courts alone, and not public officials, are the arbiters of legality. • If the decision is administrative under PAJA, it must be reviewed within 180 days, if not without undue delay. • Rule against self-help, the need for certainty and predictability in official conduct. 16

DECISIONS IN THE LOCAL GOVERNMENT SPHERE • Councillors may influence decisions of administration resulting in defective decisions • Only redress is to approach a court • Council taking many decisions that are not executive powers and functions. Without correct advice it results in defective decision • Remember, ignorance not an excuse.

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THE THIN LINE • Example Section 52 of MFMA: • The mayor of a municipality – must provide general political guidance over the fiscal and financial affairs of the municipality; – in providing such general political guidance. may monitor and, to the extent provided in this Act, oversee the exercise of responsibilities assigned in terms of this Act to the accounting officer and the chief financial officer, but may not interfere in the exercise of those responsibilities.

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WHAT NOW? • Leave administrative decisions to officials, but ensure accountability • Ensure proper advice before decisions are taken, especially decisions that create rights • Ensure that the correct decision is taken by the correct authority at the right time and each decision is timeous, legal, and rational.

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CONCLUSION • The more democracy matures and the more the public becomes educated on their rights, the more public administration must be responsible and take rational and legal decisions. • The Kirland decision and many other decisions confirming the developments in administrative law confirm the rights and values entrenched in our Constitution. • We should not see these principles as a threat, but rather as an opportunity to improve governance.

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THANK YOU • • • •

Thank you Enkosi Dankie Ke a leboha

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QUESTIONS

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