WHEN government officials promise to consult over crucially important matters can they be held to their word? Or may they renege with impunity? A recent series of court cases show these questions are not as easy to answer as you might hope.
In May 2012 officials from the Department of Home Affairs called a stakeholders' meeting about the refugee reception centre in Cape Town. They said they did not intend to close the office and undertook to consult about developments with the interested parties whom they had gathered at the meeting. Barely three weeks later, and without any further discussion with the stakeholders at the May meeting, the director-general decided to shut the centre.
Commenting on the sequence of events, Judge Robert Nugent of the Supreme Court of Appeal said it was obvious that what had been said at the May meeting was "not altogether open and frank"- judges have a gift for understatement. Indeed, he added, the minutes showed what was said at the May meeting was "positively misleading".
The stakeholders objected to the high-handed, unilateral, positively misleading way in which the decision had been taken. Among them, the Scalabrini Centre, a non-profit organisation helping migrant communities and displaced people, challenged the decision. When the high court found in favour of the centre, the authorities appealed and judgement in that case was handed down a few days ago.
The facts speak for themselves: the "not altogether open and frank way" in which the decision-making was handled, the decision itself and the failure to honour the undertaking to consult.
But the hard question is whether civil society can do anything. Maybe these officials lied - but did they act unlawfully?
The appeal court examined various arguments for why the decision was unlawful and rejected several of them. However, it said, there were circumstances in which rational decision-making requires that "interested persons" be heard: victims of offences should be heard before decisions are made about giving parole to convicts, for example.
And the Constitutional Court has made it clear that both the process by which a decision is made and the resulting decision must be rational. This in turn means a court is entitled to investigate both the process and the resulting decision. …