By Anton Katz SC
In many ways law reflects life. A particular aspect common to both law and life is the notion of fairness, and the role of a proper hearing when rights or interests are potentially affected.
How often have I seen and heard young boys squabbling animatedly about some alleged wrong done by the one to the other. I call them together; I tell them I am the judge and I will give both a full and fair opportunity to state their case. The one goes first and tells a long sad story about how the other boy did this and that wrong.
Meanwhile the other boy tries to intervene saying the first boy is not telling the truth. I stop the intervention, and let the first boy talk his heart out. After that I require the second boy to give his long version of what, according to him, really happened. I tell the boys I will think about what to do and will let them know when I am ready to make my decision. Within five minutes the boys’ squabbles are over and they are happily playing as best friends as if there had never been any conflict. The lesson I have learnt is that people have a desperate need to be heard. Once they are heard they feel satisfied.
And in law, in a similar but different vein, very often, after evidence has been led and tested by cross-examination, things turn out differently from the way they might have appeared at first blush.
Judge Megarry, a famous English judge, stated in John v Rees in 1969, “As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.”
So, what does a hearing meaning? And what does fairness demand? It is a truism that in law, just like in life, context is everything. A hearing which makes the process fair can mean many different things depending on the context. A fair hearing can consist of merely letting potentially affected persons comment on proposed action in writing. Or it could mean a full-blown trial with persons giving oral testimony, which is subject to cross-examination by the other side’s lawyers. It all depends on the context.
Another way of describing this fairness issue is to ask how much process is due in any particular case. A feature of due process is whether there are one or more levels or phases of decision-making. In town planning issues, an owner of a house may need to apply for permission to build. The owner would have to submit plans to the City officials. Neighbours could object. If permission is granted the neighbours could appeal to higher authorities within the City. Meanwhile the building process is put on hold, possibly at great expense to the owner. We are all familiar with appeals dragging out cases for eternity with the attendant costs and uncertainty that brings.
The requirement of fairness in the administrative law context has been described to involve legality, reasonableness and fairness. In order to satisfy legality, the process must comply with whatever steps the law requires. But it must also be reasonable and fair. While decision-makers should be able to act with a measure of flexibility on the one hand, those affected by decisions should also know how decisions affecting them are made.
In the latest Public Protector matter, a preliminary finding running to some two hundred pages in relation to the President’s Phala Phala scandal was made by the PP. The President was exonerated, whereas preliminary findings against the police were made. Any interested party has the right to comment and make submissions on the preliminary finding by the Public Protector. The responses must be made in writing within ten days after receipt of the preliminary report. Generally, the various parties do not get to see each other’s submissions and responses. Once the responses are received, the PP makes a final and binding decision. Bear in mind that the PP had, in preparing the preliminary report, interviewed the main role players and taken into account the submissions by the complainants. It seems there is more than enough opportunity to be heard before final decisions are made by the PP against any individual. That seems reasonable, fair and just.
Latin tags can be pretentious and annoying. But there is one that everyone should know. That is Audi. Audi is short-hand for the phrase audi alteram partem, which means ‘Listen to the other side’ or ‘let the other side be heard as well’. Audi is a fundamental legal principle in which each party is entitled to a fair hearing, and given the opportunity to respond to evidence against them. So, if you are ever involved in a dispute with any state agency just make sure you are given Audi. The two squabbling little boys in a sense received audi and they are now happier than ever.
Anton Katz is a practising Senior Counsel, former United Nations special rapporteur on mercenaries and human rights, former Acting High Court Judge, and an admitted attorney in New York. He was born and raised in Sea Point.
• Published in the April 2023 Edition – Click here to start reading.
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