Procedural Deficiencies in Administrative Law: A Comparative Analysis

ABSTRACT

Although the Promotion of Administrative Justice Act 3 of 2000 (AJA) provides for a number of procedural requirements which have to be observed in the administrative decision-making process, it is not yet clear what the legal consequences are if decisions are adopted without complying with these requirements. A look at the positions of foreign legislatures and courts on this issue provides some guidance as to the relevant factors which have to be taken into account when determining the validity of procedurally flawed administrative measures. The comparative analysis reveals that, though some legal systems adopt a more rigid approach than others, there is no system that treats procedurally deficient action as automatically invalid. Nor is there much support for the opposite point of view: that formal or procedural defects have no effect on the validity of an administrative act. The abundant case law seems to indicate a growing consensus that a variety of factors have to be taken into account to decide the consequences of a breach of procedural rules. These factors include the purpose that the rule is considered to serve, the extent to which this purpose could and indeed has been realised in the specific case, and the requirements of administrative efficiency. This functional analysis is also at the heart of the widely accepted distinction between mandatory and directory procedural requirements, although it is often applied inconsistently in practice. Applied to the South African context, this suggests a flexible approach based on a close scrutiny of the function and purpose of each procedural requirement prescribed by the AJA. The argument of material irrelevance of the procedural defect to the outcome of the case, however, should be used with caution since it might well end up encouraging habitual disregard of procedural constraints by the administration.