WHEN government officials promise to consult over crucially important matters can they be held to their word? Or may they renege with impunity?
A recent series of court cases show these questions are not as easy to answer as you might hope.
In May 2012 officials from the department of home affairs called a stakeholders’ meeting about the refugee reception centre in Cape Town. They said they did not intend to close the office and undertook to consult about further developments with the interested parties whom they had gathered at the meeting.
But barely three weeks later, and without any further discussion with the stakeholders called to the May meeting, the director general had decided to shut down the centre.
Commenting on the sequence of events Judge Robert Nugent of the Supreme Court of Appeal said it was obvious that what had been said at the May meeting was ‘not altogether open and frank’ – judges have a particular gift for understatement. Indeed, he added, the minutes showed what was said at the May meeting was ‘positively misleading’.
The stakeholders objected to the high-handed, unilateral, positively misleading way in which the decision had been taken. Among them the Scalabrini Centre centre, a non-profit organisation helping migrant communities and displaced people, challenged the decision. When the high court found in favour of the centre the authorities appealed and judgment in that case was handed down a few days ago.
The facts speak for themselves: the ‘not altogether open and frank way’ the decision-making was handled; the decision itself and the failure to honour the undertaking to consult.
But the hard question is whether civil society can do anything; maybe these officials lied – but did they act unlawfully?
The appeal court examined various arguments for why the decision was unlawful and rejected several of them. However, they said, there were circumstances in which rational decision-making requires that ‘interested persons’ be heard: victims of offences should be heard before decisions are made about giving parole to convicts for example.
And the Constitutional Court has made it clear that both the process by which a decision is made, and the resulting decision, must be rational. This in turn means a court is entitled to investigate both the process and the resulting decision.
In this particular case the director general well knew that the Scalabrini Centre and the other organisations invited to the May meeting had long experience and special expertise related to asylum-seekers. His representative at the meeting effectively acknowledged their expertise when he undertook to consult with them about any proposal to close the offices.
The director general gave no explanation for not having consulted with them and the court was thus forced to conclude that the resulting decision was arbitrary and not founded on reason.
The decision was made even more arbitrary in that he staged ‘what was in truth a charade that could only have misled interested parties’ as to his intentions, a charade that was ‘inconsistent with the responsiveness, participation and transparency that must govern public administration.’
This doesn’t mean that there is always a duty to consult interested organisations and individuals. But in some cases it would be irrational not to do so.
The end result of the appeal was that the director general’s decision has been overturned and he’s been told to consult with the interested parties and consider the matter afresh
If he hasn’t made a proper decision by the court’s deadline the Scalabrini Centre may go back to court and ask for further relief.
Four of the five judges on the appeal agreed with this outcome. The fifth, Judge Nigel Willis, has so far dissented in no fewer than five cases during the few months he’s been on the appeal court, generally using these occasions to nit-pick and demonstrate his learning. This was no exception, beginning with a reference to how ‘edifying’ he had found the judgment of the rest of the bench in this case.
But the director general’s decision was a policy matter, he said, and the court had no business interfering. In support of his views he offers a Latin cliché which simply means that opinions differ.
To demonstrate his erudition further he gives the actual source of these words of profound wisdom (the Roman writer Terence, in Phormio). Pity about the editing glitsches in the judge’s dissent but at least they show that he too is human.
As for Terence and Phormio: it might be edifying to check them out on Google for yourself.