“organ of state” bears the meaning assigned to it in section 239 of the Constitution;
(x)
“prescribed” means prescribed by regulation made under section 10;
(xi)
“public”, for the purposes of section 4, includes any group or class of the public;
(xii)
“this Act” includes the regulations; and
(xiii)
“tribunal” means any independent and impartial tribunal established by national legislation for the purpose of judicially reviewing an administrative action in terms of this Act.
Application of Act
2. (1) The Minister may, by notice in the Gazette—
(a)
if it is reasonable and justifiable in the circumstances, exempt an administrative action or a group or class of administrative actions from the application of any of the provisions of section 3, 4 or 5; or
(b)
in order to promote an efficient administration and if it is reasonable and justifiable in the circumstances, permit an administrator to vary any of the requirements referred to in section 3(2), 4(1)(a) to (e), (2) and (3) or 5(2), in a manner specified in the notice.
(2) Any exemption or permission granted in terms of subsection (1) must, before publication in the Gazette, be approved by Parliament.
Procedurally fair administrative action affecting any person
3. (1) Administrative action which materially and adversely affects the rights or legitimate expectations of any person must be procedurally fair.
(2) (a) A fair administrative procedure depends on the circumstances of each case.
(b) In order to give effect to the right to procedurally fair administrative action, an administrator, subject to subsection (4), must give a person referred to in subsection (1)—
(a)
adequate notice of the nature and purpose of the proposed administrative action;
(b)
a reasonable opportunity to make representations;
(c)
a clear statement of the administrative action;
(d)
adequate notice of any right of review or internal appeal, where applicable; and
(e)
adequate notice of the right to request reasons in terms of section 5.
(3) In order to give effect to the right to procedurally fair administrative action, an administrator may, in his or her or its discretion, also give a person referred to in subsection (1) an opportunity to—
(a)
obtain assistance and, in serious or complex cases, legal representation;
(b)
present and dispute information and arguments; and
(c)
appear in person.
(4) (a) If it is reasonable and justifiable in the circumstances, an administrator may depart from any of the requirements referred to in subsection (2).
(b) In determining whether a departure as contemplated in paragraph (a) is reasonable and justifiable, an administrator must take into account all relevant factors, including—
(i)
the objects of the empowering provision;
(ii)
the nature and purpose of, and the need to take, the administrative action;
(iii)
the likely effect of the administrative action;
(iv)
the urgency of taking the administrative action or the urgency of the matter; and
(v)
the need to promote an efficient administration and good governance.
(5) Where an administrator is empowered by any empowering provision to follow a procedure which is fair but different from the provisions of subsection (2), the administrator may act in accordance with that different procedure.
Administrative action affecting public
4. (1) In cases where an administrative action materially and adversely affects the rights of the public, an administrator, in order to give effect to the right to procedurally fair administrative action, must decide whether—
