Audi Alteram Partem Rule, Promotion Of Administrative Justice Act And The Labour Relations Act: Precautionary Suspension From Duty
- IJLLR Journal
- Feb 20
- 2 min read
Dr Judge Graham Nasious Moshoana, B Proc (Unin), LLB (Wits), Higher Diploma Labour Law (RAU); Diploma Corporate Law (RAU); LLM (Labour Law) (RAU); LLD (Mercantile Law) (Northwest University). A Judge of the High Court of South Africa; Former Judge of the Labour Court of South Africa; Acting Judge of the Labour Appeal Court of South Africa.
1. Introduction
The main purpose of this article is to investigate whether audi alteram partem principle finds application when a decision to place an employee on suspension is taken. The provisions of the Promotion of Administrative Justice Act 3 of 2000 as well as the Labour Relations Act 66 of 1995 shall be considered in the course of the investigation. It suffices to mention that in the present constitutional era, the principle of audi alteram partem found recognition in section 33 of the Constitution of the Republic of South Africa, 1996 as well as in the LRA and PAJA. Section 33 of the Constitution of the Republic of South Africa, 1996 guarantees everyone a right to an administrative decision that is lawful, reasonable and procedurally fair. In the context of this article, it is arguable that emphasis must be placed on procedural fairness given its relationship to the right to be heard before an adverse decision is taken.
Section 33(3) provides that national legislation must be enacted to give effect to rights guaranteed in section 33(1). PAJA is an offshoot of the rights guaranteed in section 33(1) of the Constitution of the Republic of South Africa, 1996. Section 33(2) entitles everyone whose rights have been adversely affected by administrative action the right to be given written reasons. This right to reasons implies that an affected party must be heard. Reasons are adequate if they are given after a hearing. Hoexter argues that rights in section 33(1) and (2) are designed to promote efficiency. Also Klaaren argues that promoting an efficient administration can be read in at least two ways. It can be read downwards to mandate the reduction of legal burdens on the administration and promote cost-effectiveness or upwards to require an administration that is accountable and participatory, promoting rational, effective and responsive decision making. Section 3(1) of PAJA imposes a duty that an administrative action must be procedurally fair. Giving effect to the right to procedural fairness includes amongst others a reasonable opportunity to make representations.
