THE RIGHT TO JUST ADMINISTRATIVE ACTION AND INFORMATION IN RELATION TO REJECTEDJOB APPLICATIONS

INTRODUCTION

Unemployment is one of the serious pandemic issues in South Africa resulting in a point where most people find themselves submitting job applications to different potential employers and companies. Some applications might return with a “we regret to inform you that your application was not successful” as an indication of rejection, while other applications might be met with no response, raising a lot of question marks to the candidates applied for the job position. Either way, this can leave the job applicant wondering what could have been the reason for their application not landing them the position. This article will be looking at whether job applicants have the right to request reasons why their application was not successful

What does the law say?

The point of departure in answering this question is the constitution that provides that:

• Everyone has the rights to information held by another (including the state) in as far as it is required to exercise or protect any other right;
• Everyone has the right to administrative action that is fair, reasonable and just; and
• Everyone has the right to written reasons if any of their rights have been negatively affected by administrative action.

Procedure for access to records held by the information regulator

Section 18 of PAIA prescribes the procedure to be followed in making a request for access to information held by the regulator. Section 23 (1) of POPIA also provides the procedures to access personal information. Manner of access to personal information act in terms of section 23 of POPIA should be in accordance with section 18 of PAIA.

A requester or data subject must use the prescribed form when requesting access to a record of personal information. PAIA distinguish between two types of requesters for access of information i.e. personal requester (data subject) and other requesters:

A data subject is a requester who, having provided adequate proof of identity, seeking access to record confining personal information about the data subject. subject to the provisions of PAIA and POPIA, the regulator will provide the requested information, or give access to any record with regards to the data subjects personal information within a reasonable time (at a prescribed fee, if any) in a reasonable manner and format and in a form that is generally understandable. The prescribed fee for reproduction of personal information requested will be charged by the regulator.

A person falling in the category of other requesters is entitled to request access to information pertaining to third parties. However, the regulator is not obliged to grant access prior to the requester fulfilling the requirements for access to information in terms of POPIA and PAIA.

The requester must provide sufficient information of the records requested in order for the information officer or deputy information officer, if any, to identify the records. The prescribed form must be filled in with enough particularly to at least enable the information officer to identify:

• The identity of the requester
• Particulars of records requested
• Type of records
• Form of access; and
• Manner of access

Under section 23 of the South African constitution, job application has the rights to administrative action that is lawful, reasonable and procedurally fair. However, applying for administrative law to private sector employment is largely rejected, thus these “just administrative action” rights primarily apply to the public sector

Arguments: public sector vs private sector

Public sector applicability: decisions made by the state organs regarding job rejection are deemed ‘administrative action’. Court have reaffirmed that candidates unfairly bypassed for public sector roles can have those decisions reviewed and set aside [legal wise (2023)] [Johnson v the HOD of education, Northern Cape and Others (1)] Mambafula v Alfred Nzo District Municipality. Law library.org.za

Private sector exemption: PAJA generally does not apply to private companies. Job seekers rejected by private companies or employers must rely on labor frameworks rather than constitutional administrative law. [Transman (Pty)Ltd v dick and Another (2009(4) SA 22 SCA]

Arguments: the right to reasons

The constitution: section 33 (2) mandates that anyone whose rights are adversely affected by administrative action has the right to written reasons [PAJA] [the city of Johannesburg Metropolitan Municipality and Other v San Ridge Height Rental Property (Pty)Ltd (517/2022) [2023]

PAJA framework: under section 5 of the Promotion of Administrative Justice Act (PAJA), you can request written reasons. A failure to provide adequate reasons raises a legal presumption that the decision was taken without good reason, shifting the burden to the employer [YouTube gimmenotes]

The balancing Act: this right is not absolute; under the Promotion of Access to Information Act (PAIA), employers can legally refuse to disclose specific information like third-party psychometric scores to protect the privacy of other applicants. [legal wise (2023)] [labor guides South Africa]

Arguments: unfair labor practice and discrimination

Employment Equity Act (EEA):  regardless of the sector, no potential employee can be unfairly discriminated against based on race, gender, age or disability. If a rejection stems from discrimination, candidate can escalate a dispute to the CCMA Commission for Conciliation Mediation and Arbitration

Administration vs labor law; a major legal debate centers on whether labor legislation renders PAJA inapplicable to state employment decisions. Historically, courts have argued that employing people is a purely private function, though recent rulings suggest the state’s hiring powers still must follow principles of fairness [department of justice] [Ens Africa; www.ensafrica.com] [casemine; www.casemine.com]

Therefore, it is a basic human right under the Constitution to ask for information and this right can, in some instances, be used to ask for reasons of a declined job application. However, it is not as always as simple and direct as it appears. There are certain procedures and aspects to consider under the Promotion of Access to Information Act 2 of 2000(“PAIA”) and the Promotion of Administrative Justice Act 3 of 2000(“PAJA”). [legal wise (2023)]

A person wanting to ask for information must do so by following the procedures set out in what is known as a “PAIA Manual”. This document can usually be found on the relevant entity’s website and it will explain the procedure, whether there is any cost involved, as well as include a form that must be completed as explained above

What should also be noted is that is the information is requested from a private entity (such as a company), the request for information must be to exercise or to protect any rights. The request should, therefore, indicate the right that is to be protected and an explanation why the record will be of use in that regard. However, if the request is made to a public entity (such as the governmental department), the reasons why the information is required is not relevant for purposes of determining whether or not to grant access to public records, but might help in strengthening your request for the information [Law library.org.za]

Must the information always be provided when requested?

Although a person might have followed the correct procedure when requesting information regarding his/her rejected job application, it does not mean that the request must be adhered to [legal wise (2023)]. There are various factors involved and one of them is that the entity must refuse access to the information in question requested if releasing it will be a violate the privacy of another person (POPIA). In legal matter where a person was aggrieved that he was not appointed to a municipal manager position he applied for, he approached the high court for an order after his attempts to obtain reasons from the municipality were unsuccessful. He had requested the outcome of the interviews, including scores of all other candidates. The high court made an order that he should be given reasons why he was not appointed and the outcome of his assessments, however, he was entitled to the scores of the other candidates as this would be an unreasonable violation of others ‘personal information [ Mambafula v Alfred Nzo District Municipality].

Can the decision to reject a job application be taken on review?

Generally, employers follow the criteria, qualification and other operational requirements when deciding who the best candidate for the position will be and not every decision made by an employer can be taken o review. There are some exclusions to the general rule, for example, where a rejection was due to unfair discrimination. Section 9 of the constitution provides everyone with the right to equality and not to be unfairly discriminated based on their race, gender, pregnancy, marital status, ethnic or social origin, color, sexual orientation, age, disability, religion, conscience, believe, culture, language and birth. For an example, a female job application cannot be refused for a position purely on the basis that she is pregnant.

In addition to the above, there is a specific remedy applicable in the public sector under PAJA to review and set aside an administrative decision which negatively affects a person’s rights. As indicated above, administrative action must be fair, just and reasonable. However, for PAJA to apply, there must have been an administrative decision (this include failure to take a decision) taken by:

• An organ of state in exercising its constitutional powers or performing a public function in terms of any other law;
• A person (natural or juristic) when performing a public function in terms of any empowering provision

This means that if an appointment into a position of employment does not amount to the exercise of a public power in terms of the law, a job applicant would not be able to request a review under the PAJA even if they feel the process was not just, reasonable or fair. For an example if a private company advertised a position for a data capture and appointed a specific candidate over another, the one whose application was not successful would not be able to apply for review as this is not the performance of a public function. In a matter where an applicant for a vacancy challenged a municipality’s decision to appoint a certain candidate and wanted it set it aside, the court held that it had jurisdiction to hear such an application for review

Conclusion

A person may request reasons as to why his/her job application was unsuccessful, provided they comply with all the requirements of such request. Furthermore, if one is aggrieved by the administrative process which led to the appointment of another candidate, she/he may approach the court for review and setting aside of that appointment, provided the appointment was an exercise of a public power given to the appointing entity by an empowering provision, such as law

Bibliography

Literature

Bende 1988 J Leg Ed

Bender L “A lawyers’ Primer on Feminist Theory and Tort ‘1988 J Leg Ed 3-37

Hard concept of law

Hard HLA Concept of Law (Oxford University Press Oxford 1961)

Administrative Law Lexis Nexis 6^th edition

Yvonne Burns

Radley Henrico

Cora Hoexter: Administrative Law in South Africa (Juta)

Case laws

Mambafula v Alfred Nzo District Municipality (3264/2024) [2025]

The City of Johannesburg Metropolitan Municipality and Other v San Ridge Height Rental Property (Pty)Ltd (517/2022) [2023]

Transman (Pty)Ltd v dick and Another (2009(4) SA 22 SCA]

Johnson v the HOD of education, Northern Cape and Others (1)

Journal articles

Legal wise 2023-2025 articles

The right to just administrative action and information with rejected application

Legal wise article (2023)

Navigating freedom of expression, hate speech and equality

Legislations

The constitution of the republic of south Africa, 1996 section 33

The Constitution of South Africa; Heinz Klug

Bloomsbury Publishing ,30 October 2025-law 312

The Promotion of Administrative Justice Act (PAJA) 3 of 2000

The Promotion of Access to Information Act 2 of 2000(“PAIA”)

Constitutional Court Art Collection Just Administrative Action section 33 CCAC