INTRODUCTION

Administrative Law is the law relating to the administration of the State. Administration of
the State is the detailed and practical implementation of the policies of the central
government aimed at the running of the State at central, provincial and local levels.
Administrative Law is primarily concerned with subordinate powers, that is, powers
delegated by Parliament to administrative officials and bodies. It deals with the exercise of
powers of these powers. These powers include the power to create subsidiary legislation such
as regulations, by laws and to issue directives. 1The action which was taken by the Ministry of
Local Government to relocate the residents of the Regererai Community is an administrative
decision as defined by Section 2 of the Administrative Justice Act.Administrative authority is
bound by the obligations of section 3 if the Administrative injustice Act.This means that any
party who suffered administrative injustice has remedies as provided for by the Act. This
piece of work seeks to establish several issues arising from the conduct of the Board and the
remedies available to the Regererai Community.

ANALYSIS OF THE ISSUES

A. Violation of the principles of natural justice

The principles of natural justice embody fundamental notions of procedural fairness and
justice. As applied to administrative decisions, these principles seek to ensure that such
decisions are only taken after fair and equitable procedures have been followed. In essence,
natural justice tries to guarantee that the parties who will be affected by the decisions receive
a fair and unbiased hearing. By required adherence to standards of procedural fairness, not
only is justice seen to be done, but also these principles assist administrative decision-makers
to reach substantively correct decisions.2 There are two principles of natural justice these are
the principle of audi alteram partem which means, literally, hear the other side i.e. hear both
sides.The principle that all the administrative decision-makers should be impartial and
unbiased in their deliberations. (This is referred to as the nemo judex in sua causa principle
which means, literally, that no person may be a judge in his own cause.)

1
G A Feltoe Guide to Zimbabwean Administrative Law 2020
2
Hoexter Administrative Law in South Africa (2nd edit Juta 2012)
 In U-Tow Trailers (Pvt) Ltd v City of Harare & Anor 3the court pointed out that the rule at
common law is that tenets of natural justice have no application in the law of contract unless
the aggrieved party can prove that the contract impliedly imported and incorporated such into
the contract. The Administrative Justice Act now requires that all administrative authorities
as defined in the Act who enter into contracts with private individuals or companies comply
with the requirements of the Act in relation to legality, reasonableness and procedural
fairness. Thus in this case a city council was not permitted to cancel a lease until there had
been a fair hearing to determine whether the terms of the lease had been breached. In this
case the Board by declining the permit without prior notice to the company was clear
violation of the principles of the Natural Justice which requires the party to be heard before
any adverse decision is taken against it.

B. Violation of the principles of legitimate expectations

The legitimate expectation principle, instead of insisting that an individual be affected in his
liberty, property or existing rights before he may be heard in his own interest, lays down that
an individual who can reasonably expect to acquire or retain some substantive benefit,
4
advantage or privilege must be permitted a hearing before a decision affecting him is taken.
In H v St John’s College 5the court said that the legitimate expectation doctrine is an
extension of the audi alteram partem rule. It was a product of judicial activism meant to fill
up a lacuna in the law. The legitimate expectation doctrine simply extended the principle of
natural justice beyond the established concept that a person was not entitled to a hearing
unless he could show that some existing right of his had been infringed by the quasi-judicial
body.In this case the Reererai Community was not entitled to a hearing before the decision
that affected them was taken. Fairness is the overriding factor in deciding whether a person
may claim a legitimate entitlement to be heard.

C. Violation of the Constitutional right provided by Section 68 and the Obligations

on Section3 of the Administrative Justice Act

3
2009 (2) ZLR 259 (H)
4
De Ville Judicial Review of Administrative Action in South Africa (Revised 1st edit 2005)
5
2013 (2) ZLR 621 (H)
The constitutional right is as follows:

68 Right to administrative justice

(1) Every person has a right to administrative conduct that is lawful, prompt, efficient,
reasonable, proportionate, impartial and both substantively and procedurally fair.

(2) Any person whose right, freedom, interest or legitimate expectation has been
adversely affected by administrative conduct has the right to be given promptly and in
writing the reasons for the conduct6

In the case of Maqele & Ors v Vice-Chancellor, MSU, & Anor HB-129-16 7the court stated
that s 3(1) of the Administrative Justice Act require administrative authorities to act lawfully,
reasonably and fairly at all times, while s 68(1) of the Constitution makes it a constitutional
imperative for every person to receive prompt, efficient, reasonable and impartial decisions in
administrative conduct. It is no longer business as usual for all administrative authorities as
there has been a seismic shift in administrative law. In this case the decision by the Minister
to cancel the permit without giving reasons to the Regererai Community was a violation of
Section68(2) of the Constitution.

Moreover Administrative Justice Act provides in s 3(1)(c) that administrative authorities

which have the responsibility or power to take any administrative action which may affect the
rights, interests or legitimate expectations of any person must give written reasons for their
decisions within the period specified by law or, if there is no specified period, within a
reasonable period of time. If the authority fails or refuses to give reasons for its decision, a
person affected by the decisionis allowed to apply to the High Court for relief. In the case of
Mhete & Ors v City of Harare & Anor 2014 (2) ZLR 739 (H) 8three elderly applicants were
suddenly evicted from their homes in a high-density suburb. They had been renting these
homes from a local authority under a rent to buy scheme. Although the applicants had
requested that they be found alternate accommodation, none had been allocated alternate
accommodation. Despite the fact that their civil claims in respect of the evictions may have
been prescribed, they were still entitled to bring an application in the High Court under
section 3 of Admintrative Justice Act and the court ordered the local authority provide the
applicants with written reasons for its decision. Where there is no statutory provision or term
of the contract obliging the giving of reasons for a decision the question is whether the

6
The Constitution of Zimbabwe (Amendment 20)Act of 2013
7
HB-129-16
8
2014 (2) ZLR 739 (H)
principles of natural justice require that all decision-makers give reasons for their decisions.In
this case the relocation of the Regererai Community without giving reasons violated the
obligation provided for by the Administrative Justice Act that is to provide reason for the
decision.

REMEDIES

Approaching the High Court

Section 4 of the Adminstrative Justice Act 9authorises any person aggrieved by the failure of
an administrative authority to comply with Section 3 to apply to the High Court for relief.
Order 33 of the High Court Rules sets out the procedure for bringing a decision of an
administrative authority on review. This is by way of court application directed at the
chairperson of the administrative body or the administrative officer and all other parties
affected. If the administrative authority fails to supply reasons for its action within the period
specified by law, the High Court can direct the administrative authority to supply reasons
within the period specified by law. If the law does not specify the period within which
reasons are to be supplied, but an unreasonable period of time has elapsed without reasons
being given, the court can direct the administrative authority to supply reasons within a
period fixed by the Court. Section 4(1) 10then provides that if the administrative authority fails
to do these things, any person who is aggrieved thereby may apply to the High Court for
relief. However, in terms of Section 6 11 a person can only apply to the High Court for an
order compelling an administrative authority to supply reasons where that persons rights,
interests or legitimate expectations are “materially and adversely affected” by the
administrative action. In Archipelago (Pvt) Ltd & Anor v Liquor Licensing Board 1986 (1)
ZLR 146 (H); 1986 (4) SA 397 (ZH) 12the court set aside a decision of a licensing board
where it purported to exercise a jurisdiction where none existed. It did so even though the
litigant had not first exhausted its internal remedies. In this case the Future Mining Pvt Ltd
are entitled to approach the High Court to seek redress on the decision of the minister, they
can approach this court to compel the Board to provide reasons for their decision and to

9
See(n2)
10
See(n2)
11
See(n2)
12
1986 (1) ZLR 146 (H); 1986 (4) SA 397 (ZH)
challenge the procedure used by the Board to cancel the application as the Board suddenly
cancels the application without a prior notice as provided for by the Administrative Justice
Act and the Principles of Natural justice

Furthermore, based on the principle of subsidiarity the normal remedy for a person aggrieved
by action by an administrative authority that constitutes administrative injustice is to seek
relief in the High Court in terms of the Administrative Justice Act. There is no need to
approach the Constitutional Court in such matters. Generally, the subsidiarity principle
provides that one cannot vindicate a right directly in the Constitutional Court in terms of the
Constitution before they exhaust remedies provided for under an Act of Parliament or the
common law13. In this regard, the constitutionalisation of the right to administrative justice
does not do away with the right as provided for under the common law or an Act of
Parliament. It dictates that remedies should be found in common law or legislation before
resorting to constitutional remedies, and the related principle that norms of greater specificity
should be relied on before resorting to norms of greater abstraction. 14. In PIL (Pvt) Ltd v
ZRA & Anor HH-213-17 15the court said that although s 68 of the Constitution gives a right
to administrative justice, the mechanism for securing this right is provided by the
Administrative Justice Act [Chapter 10:28]. Section 4 of the Act gives a party aggrieved by
the action of an administrative authority the right to seek relief in the High Court, In
16
Zinyemba v Minister of Lands and Rural Resettlement and Anor CCZ-3-2016 Malaba
DCJ(as he then was) commented that the question whether any administrative conduct meets
the requirements of administrative justice must be determined in accordance with the
provisions of the Administrative Justice Act. Unless there was no Administrative Justice Act
or the complaint is that the provisions of the Act do not give effect to the fundamental rights
guaranteed under section 68(1) of the Constitution in the terms required by sub section (3),
section 68 there cannot found a complaint of its violation in terms of section 85 of the
Constitution. The pathway for enforcing the section 68 rights is through the Administrative
Justice Act. In this case although the Constitutional Right of the Regererai Community was
violated it entitled to approach the High Court not the Constitutional Court because of the
principles of Subsidiarity

13
See(n1)
14
Ian Currie and Johan de Waal, The Bill of Rights Hand Book, 8th ed, p.648
15
HH-213-17
16
CCZ-3-2016
BIBILIOGRAPHY

STATUTES

The Constitution of Zimbabwe (Amendment 20) Act of 2013

Administrative Justice Act [Chapter 10:28].

TEXT BOOKS

Feltoe G A Guide to Zimbabwean Administrative Law 2020

Hoexter Administrative Law in South Africa (2nd edit Juta 2012)

De Ville Judicial Review of Administrative Action in South Africa (Revised 1st edit 2005)

Yvonne Burns Administrative Law under the 1996 Constitution (2nd ed) pp 290-292)

Ian Currie and Johan de Waal, The Bill of Rights Hand Book, 8th ed, p.648