Finality of decisions taken by public authorities

Businesses and individual persons are subjected to or, affected by decisions taken by administrative authorities on a daily bases. For an example, you apply for a liquor license, approval of building plans or subdivision of land, etc. You then receive a letter advising you that your application has been successful, subsequently to this communication you receive another letter advising you that “sorry your application for license/approval of plans was unfortunately not granted, the letter you received earlier on was a mistake”. What do you do?

As a public authority, what do you do if, while you are on leave, and an official to whom you have delegated your official powers or duly authorized to acting in your absence changes your decision(s) (e.g. "building plans approval not granted") that you have taken but not yet communicated to the applicant by taking another decision deferent from yours (e.g., "building plans approval granted") and communicate it to the applicant? You also find out that she/he took that decision under undue influence by other people and or for whatever reasons and without proper consideration of the matter and application of his/her mind [a clear unlawful act]. Can you revoke it?

There is a general principle in our administrative law which says that “the decisions of public officials are deemed to be final and binding once they are made”. The decision is effective upon communication to the applicant. They can’t, once made and communicated to the applicant (whether lawful or not), be revoked by the decision maker, unless there is a legislation allowing this along with a proper procedural fairness being followed. The Constitutional Court in matter of MEC for Health, Eastern Cape v Kirland Investments (Pty) Ltd, has recently dealt with the issues involving the finality of the decisions taken by public officials. The Constitutional Court confirmed the decision of the Supreme Court of Appeal which held that an administrative decision cannot just be ignored because it is unlawful. It further held that until the decision is set aside by a court in proceedings for judicial review it exists and has legal consequences that cannot just be overlooked.

Therefore, a wrong and/or unlawful decisions taken by administrative authorities and communicated to the subjects (those affected) are legally enforceable and must be respected until they are set aside by the court on proper review application. So if you receive an approval of your application you are entitled to assume that all is in order and you can even act on it because the same will be deemed legally enforceable even though it might be wrong. As a public official, if your office has taken a wrong decision and communicated it to the applicant and there is no legislation allowing you to change it, you can only change it by bringing review proceedings to court.

The only exception is when an unlawful decision taken by the public authority seeks to compel/allow the subject to do something illegal. This decision can’t be enforced. If the authority tries to enforce it the subject can raise a defence based on its illegality.

The other lessons learned from this judgment are that:

  • The decisions taken by a public authority but not communicated to the subject are not effective;
  • The decisions taken by an acting official are regarded as decisions taken by the office of the responsible official. The latter can’t just change them just because they were not taken by him or her.