In the early 2000s, before the new Constitution was enacted, I heard of a case that, in retrospect, could have been a constitutional petition under Article 47. Five partners, including Michael, formed a partnership to import vehicles.
However, the other partners conspired against him and passed a resolution to remove him from the business.
The process was blatantly unfair—Michael, who had contributed nearly 55 percent of the capital, received no notice, wasn’t informed of the intent to oust him, and had no chance to defend himself.
Furthermore, his requests for a valuation and repayment of his capital were ignored. Had this occurred post-2010, two fundamental rights would have been violated: his right to property and his right to fair administrative action.
Constitutional protections
Businesses often make decisions that impact the rights of various stakeholders, including owners, directors, employees, customers, and suppliers. The Constitution, as the supreme law, protects these rights, meaning all other laws and policies must align with it.
When conflicts arise between an organisation’s policies and constitutional rights, the Constitution prevails.
Given this supremacy, it is vital for organisations to draft policies and practices in alignment with the Constitution.
Article 47 of the Constitution guarantees fair administrative action, entitling all persons to timely, efficient, and lawful administrative actions. It also requires written explanations for any actions that might impact fundamental rights.
Though often viewed as applicable only to public bodies, Article 47 can extend to the private sector. According to the Constitution and the Fair Administrative Action Act, an administrative action includes any act, omission, or decision affecting legal rights, meaning that constitutional provisions apply if such actions impact fundamental rights.
Fair administrative action
The principles of fair administrative action in the Fair Administrative Action Act include the right to actions that are timely, efficient, lawful, reasonable, and procedurally fair.
Businesses must ensure their policies and practices are compliant. For instance, does your business set timelines for responding to customer complaints?
With consumer rights now enshrined in the Constitution, the law mandates that administrative actions be timely. Procedural fairness is also required, making it advisable for businesses to have sound policies in areas like human resources and customer relations. Operating without clear policies increases a business’s risk of non-compliance.
The Fair Administrative Action Act mandates written explanations for administrative decisions, notification to affected parties, an opportunity to be heard, rights to review and internal appeal, a statement of reasons for decisions, and opportunities for cross-examination.
Michael could have sued his former partners on grounds of his right to fair administrative action being breached. Under current constitutional protections, he would likely have prevailed.
