Abstract

This article considers two issues. The first continues to cause controversy nearly two decades after the decision which gave rise to it was handed down. It relates to whether executive decisions are (or should be) constrained by procedural-fairness requirements and, if so, when and how. At the centre of this debate is the Constitutional Court’s decision in Masetlha v President of the Republic of South Africa 2008 (1) SA 566 (CC), in which the apex court held that it was ‘inappropriate to constrain the exercise of executive power to the requirements of procedural fairness’. I consider the common criticisms of Masetlha and argue, contrary to other commentators, that the decision was neither ‘unprecedented’ nor so untenable as to justify statements to the effect that it is ‘obviously wrong’ and ‘at odds with the Constitution’. I further argue that there are sound reasons to justify the reasoning in Masetlha. The second issue I consider has not been squarely decided by the Constitutional Court: whether the effect of Masetlha is that an executive decision made by an executive functionary is not constrained by the rule against bias. Surprisingly, this has received limited academic interrogation in the wake of Masetlha. I argue that a High Court decision that addressed the issue did so without proffering a jurisprudentially clear and sound basis for its conclusions.