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Written reasons
In the pre-democratic era, the courts, in most cases, did not require written reasons (Burns, 1998:125). According to De Waal et al. (2001:520), a significant new requirement of the Constitution is that written reasons must be given for administrative action. Hoexter (2007:416) quotes Lord Denning in Breen v Amalgamated Engineering Union [1971] 2 QB 175 (CA) at 191C which states: “The giving of reasons is one of the fundamentals of good administration.”
De Waal et al. (2001:520) state that the main principle for furnishing reasons is to justify the administrative action that has been taken; it adds to the fairness of the action taken if written reasons are given to the individual whose rights are affected. Burns (1998:125) further contends that the requirement to provide the affected party with written reasons, is to ensure transparency, accountability, and openness in government. This is a positive mechanism because the administrator is accountable for the decision taken and it adds to a culture of justification (De Ville, 2003:287). It can be established whether, from the reasons given, the administrator has followed due process, the relevant considerations have been taken into account, and an error of law has not been made.
Areias and Kotze (2013:54) state that the standard of adequate reasons was laid down in Minister of Environmental Affairs and Tourism v Phambili Fisheries (Pty) Ltd 2003 (6) SA 407, where the Federal Court of Australia was quoted in Ansett Transport Industries Pty Ltd and Another v Wraith and others:
The decision-maker should set out his understanding of the relevant law, any findings of the fact on which his conclusions depend (especially if those facts have been in dispute) and the reasoning process which led him to those conclusions. He should do so in clear and unambiguous language, not in vague generalities or the formal language of legislation. Hoexter (2007:416) points out that furnishing written reasons has not only procedurally benefits, but substantive benefits as well. The reason is that the duty to give reasons improves the quality of the decision. Furthermore, the giving of written reasons can mitigate the need for appeal. The concepts of procedural and substantive fairness are discussed later in the study.
Decision
The PAJA does not focus on administrative conduct, but on the administrative decisions that an organ of the state makes or fails to make (De Waal et al., 2001:93).
The relevance to education is evident in the definition given of an administrator in section 1 of the PAJA (RSA, 2000): “Administrator means an organ of state or any natural or juristic person taking administrative action.”
According to section 29 of the Constitution (RSA, 1996a), everyone has the right to receive basic education. Section 7 of the Constitution (RSA, 1996a) determines that the Bill of Rights is the cornerstone of democracy and the State has the obligation to respect, protect, promote and fulfil these rights. Thus, the State has the enormous task to provide education. Serfontein (2010:94) mentions that in Randpark Bpk. v Santam Versekeringsmaatskappy Bpk. 1965 b(4) SA 363 (A), the State is legally liable for actions in public schools. Section 60 of the Schools Act (RSA, 1996c) underlines the above: the State can be held liable for wrongful actions that occurred in a state school. Schools can therefore be deemed organs of the state and the principal is the representative of the Head of Department (Serfontein, 2010:97). Therefore a principal can be seen as an administrator in terms of the PAJA. Beaton-Wells (2003:93) is of the opinion that the definition of ‘decision’ is similar in structure to comparable Australian legislation. Currie (2007:52) states that parts of the definition of ‘decision’ were taken from the Australia’s Administrative Decisions (Judicial Review) Act of 1977 (ADJR). Activities associated with a decision listed in the Act include making, suspending, revoking, refusing and issuing (Beaton-Wells, 2003:93). The definition is a broad description that encompasses administrative action or conduct (De Waal et al., 2001:502). Currie (2007:56) clarifies the definition of a decision and states that conduct must be “decisive or determinative” in nature before it qualifies as a decision. To further explain the statement, the following example can be used: a principal takes the decision to suspend a learner from school because the learner had a dangerous weapon on him and threatened other learners. The principal refers the case to the disciplinary committee for a disciplinary hearing. The disciplinary committee recommends that the learner should be expelled, which is ratified by the School Governing Body. The HOD makes the decision to expel the learner. Currie (2007:56) is of the opinion that the decision to suspend and to expel has a “decisive or determinative” implication, and will therefore be deemed a decision according to the definition given in section 1(a), (d), and (e) of the PAJA (RSA, 2000). Although decisions are made at various stages of a case, this remains an administrative decision (De Ville, 2003:239). The definition of a decision the PAJA highlights indicates two limitations before an action can be deemed an administrative action, namely the decision must be of an administrative nature and it must be made under an empowering provision (De Waal et al., 2001:502; De Ville, 2003:39; Currie, 2007:51).
CHAPTER 1
1 PROBLEM STATEMENT AND ORIENTATION
1.1 INTRODUCTION
1.2 PROBLEM STATEMENT
1.3 RATIONALE
1.4 PURPOSE OF THE STUDY
1.5 RESEARCH QUESTIONS
1.6 SIGNIFICANCE OF THE RESEARCH
1.7 THEORETICAL AND CONCEPTUAL FRAMEWORK
1.8 CLARIFICATION OF CONCEPTS
1.9 RESEARCH METHODOLOGY
1.10 OUTLINE OF CHAPTERS
1.11 SUMMARY
CHAPTER 2
2 EFFECTIVE DISCIPLINARY DECISION MAKING
2.1 INTRODUCTION
2.2 DECISION MAKING: A CLARIFICATION OF THE CONCEPT
2.3 TYPES OF DECISIONS
2.4 DECISION-MAKING MODELS
CHAPTER 3
3 ANALYSIS OF LEGISLATION RELEVANT TO THE ADMINISTRATIVE CONCEPTS OF WHAT IS LAWFUL, REASONABLE AND FAIR
3.1 INTRODUCTION
3.2 A DEMOCRATIC SOUTH AFRICA
3.3 SOURCES OF LAW RELEVANT TO THE STUDY
3.4 LAWFUL
3.5 REASONABLE
3.6 FAIR
3.7 CONCLUSION
CHAPTER 4
4 RESEARCH METHODOLOGY
4.1 INTRODUCTION
4.2 RESEARCH PARADIGM
4.3 ONTOLOGY, EPISTEMOLOGY AND METHODOLOGY
4.4 RESEARCH METHOD: A QUALITATIVE APPROACH
4.5 CONCLUSION
CHAPTER 5
5 PRESENTATION AND ANALYSIS OF DATA
5.1 INTRODUCTION
5.2 ANALYSIS OF DATA COLLECTED BY MEANS OF SEMI-STRUCTURED INTERVIEW
5.3 ANALYSIS OF PARTICIPANT INTERVIEWS
CHAPTER 6
6 OVERVIEW, FINDINGS AND CONCLUSION
6.1 INTRODUCTION
6.2 THE RESEARCH PROCESS
6.3 SUMMARY OF FINDINGS
6.4 CONCLUSION
6.5 RECOMMENDATIONS
6.6 POSSIBLE FUTURE RESEARCH
6.7 IN CONCLUSION OF THE RESEARCH JOURNEY
References
