Psychological Society of South Africa v Qwelane (CCT226/16) [2016] ZACC 48 (14 December 2016)

The constitutional court held that at common law and in terms of natural justice, ‘hearing the other party – audi alteram partem – is an indispensable condition of fair proceedings’.  Natural justice is not only about the fact or substance of fairness; it also concerns the appearance of fairness and justice must not only be done, it must be seen to be done.

Excerpts without footnotes

Postponement

[30] Postponements are not merely for the taking.[18]  They have to be properly motivated and substantiated.  And when considering an application for a postponement a court has to exercise its discretion whether to grant the application.[19]  It is a discretion in the true or narrow sense – meaning that, so long as it is judicially exercised, another court cannot substitute its decision simply because it disagrees.[20]  The decision to postpone is primarily one for the first instance court to make.

[31] In exercising its discretion, a court will consider whether the application has been timeously made, whether the explanation for the postponement is full and satisfactory, whether there is prejudice to any of the parties and whether the application is opposed.[21]  All these factors will be weighed to determine whether it is in the interests of justice to grant the postponement.  And, importantly, this Court has added to the mix.  It has said that what is in the interests of justice is determined not only by what is in the interests of the immediate parties, but also by what is in the broader public interest.[22]

[32] It is evident that the High Court omitted fully to weigh these considerations here.  The Court seems to have adopted the “no difference” approach.  This was that receiving answering affidavits from SAHRC and PsySSA would have made no difference to the result.  Mr Qwelane was going to get his postponement anyhow.

[33] That was wrong.  It is trite that at common law and in terms of the tenets of natural justice, hearing the other party – audi alteram partem – is an indispensable condition of fair proceedings.  As Donaldson LJ put it in Cheall:

“[N]atural justice is not always or entirely about the fact or substance of fairness.  It has also something to do with the appearance of fairness.  In the hallowed phrase, ‘Justice must not only be done, it must also be seen to be done’.” [23]

[34] The principle is underpinned by two important considerations of legal policy.  The first is recognising the subject’s dignity and sense of worth.  Second, there is a more pragmatic consideration.  This is that audi alteram partem inherently conduces to better justice.  Milne JA summarised both considerations in South African Roads Board.[24]  He said  the application of the audi alteram partem principle—

has a two-fold effect.  It satisfies the individual’s desire to be heard before he is adversely affected; and it provides an opportunity for the repository of the power to acquire information which may be pertinent to the just and proper exercise of the power.”[25]

[35] So the “no difference” approach is generally anathema.[26]  Courts resist accepting that the right to a hearing disappears when it is unlikely to affect the outcome.  This was elucidated in Zenzile:[27]

“It is trite . . . that the fact that an errant employee may have little or nothing to urge in his own defence is a factor alien to the inquiry whether he is entitled to a prior hearing.  Wade Administrative Law 6th ed puts the matter thus at 533-534:

‘Procedural objections are often raised by unmeritorious parties.  Judges may then be tempted to refuse relief on the ground that a fair hearing could have made no difference to the result.  But in principle it is vital that the procedure and the merits should be kept strictly apart, since otherwise the merits may be prejudged unfairly’”.[28]