“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
1
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)
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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
4
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)
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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.
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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
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Thank you
Enkosi
Dankie
Ke a leboha
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QUESTIONS
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