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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
6 November 2001
ADMINISTRATIVE REVIEW RULES OF PROMOTION OF ADMINISTRATIVE JUSTICE ACT: BRIEFING
Chairperson, Acting: Ms F I Chohan-Kota
Documents Handed Out:
Administrative Review Rules of Promotion of Administrative Justice Act, 2000 (see Appendix)
The Committee received a briefing on the rules for the Promotion of Administrative Justice Act which it is scheduled to vote on in the followingweek.
Adv J Moses and Professor Lewis came before the Committee to brief them on the rules of the Promotion of Administrative Justice Act.
Prof Lewis told the Committee that these rules had been based on the High Court rules. This was because a large body of jurisprudence around the High Court rules and judicial review already existed. She noted that the High Court had the power of judicial review and now in terms of the Act the Minister could designate certain magistrates to hear administrative reviews. This was very significant for the magistrates court as it added a new rule and a new power. The associated procedure was in accordance with the High Court rules. The Justice College had assured Prof Lewis that they were presently training magistrates in this and there were about 50 magistrates already qualified to hear such matters. These magistrates have been trained in the necessary procedures as well as the appropriate substantive law.
Prof Lewis noted that it was not necessary for there to be extensive definitions and for this reason there were few. She directed the Committee's attention to the rear of the rules where there was a proforma Notice of Motion attached. This was there to illustrate the form of the notice of motion, making it easier, especially for those not legally represented.
Ms Chohan-Kota referred to subrule 2(1)(b) and asked where it was provided that a recording of the proceedings be made. She asked whether this was done in the Act or in the regulations.
Both Prof Lewis and Adv Mosses could not answer this question. They apologized saying that they had only recently acquired a copy of the regulations.
Ms Chohan-Kota then asked whether in the Act, there was an obligation on the complainant to ask for reasons before instituting action.
Adv Moses pointed out that in the relevant section, the Act stated that the complainant may request reasons.
Ms Chohan-Kota explained that this then meant there was no obligation on the complainant to first ask for reasons. Action could be instituted action regardless of whether or not the complainant has asked for reasons.
Prof Lewis directed the Committee's attention to rule 2(2) which dealt with the delivery of correspondence to a designated address falling within a prescribed distance from the relevant court. The Rules Board had often been approached by people wanting this position to be changed on the grounds that this rule is an antiquity, a legacy of the past that has long outgrown its usefulness. Initially it was five miles, a reasonable distance to travel in the time when this rule was first constructed. Then with the introduction of the metric system, the five miles was changed to the eight kilometres. People were now asking for an extension to 20 to 25 kilometres. The motivation against this was that in rural areas many people still did not enjoy the conveniences of modern day life. This matter would be dealt with in the harmonization process.
Ms Chohan-Kota asked why the rules provided that two copies of the transcript needed to be filed. In these types of cases there was a great deal of documentation. Supplying even one copy of this documentation is expensive enough while subrule 2(1)(b)(i) required the filing of two certified copies.
Adv Moses said that this matter should depend on the nature and content of the court. He explained that sometimes there were two judges in review proceedings. In this case one copy would be needed for each of the judges. However in the magistrate court context, there would often only be one judge. In this case only one copy would be needed. However, in other circumstances such as in the example of the Constitutional Court, there is an even larger number of judges, all of whom require a copy of the documentation. Adv Msses said that looked at in this light it was apparent that the section needed modification to better provide for the situation where there would probably be only one judge. All this would be done to minimize costs.
Ms Chohan-Kota referred to subrule 2(3) where it was provided that the cost of transcription would be regarded as costs in the case. This would mean that as such proceedings are civil proceedings, the cost would be paid by the losing party. She felt that this clause was too restrictive in that the court might want to place the costs of the transcription in one way or another regardless of which party wins or loses the litigation.
Prof Lewis agreed with Ms Chohan-Kota's observation and said that the provision would be changed.
Prof Lewis noted that the Rules Board was of the opinion that the subrule (5)(b) was too vague. This was because in subrule (5)(b) reference was made to the expiry of the time period referred to in subrule (4). Then in subrule (4) there were two possible interpretations relating to the expiry of a period. The one was the 10 day period that subrule (5) was intended to apply to. The other was that the application had to claim a notice of motion within 30 days after the administrator had made the record of the proceedings. To avoid any possible misinterpretation Prof Lewis suggested that the rule be changed to expressly provide that the administrator or any affected person claim notice in motion "within 30 days of the expiry of the 10 day period referred to in subrule (4)."
Ms Chohan-Kota was in agreement. She then asked if all the references to 'days' were intended to mean court days, and added that if this was the intention then perhaps the term 'day' should be expressly defined as such.
Prof Lewis said the reference was indeed to court days. The fact that provision was made in certain circumstances for fifteen days, meant that in the absence of public holidays, this would add up to about three weeks. She added that these were fairly long periods in line with High Court standards. She agreed that it would be wise to define 'days' as court days, and that the omission of such a definition to date was an oversight.
Prof Lewis continued with her briefing explaining to the Committee that in terms of rule 2(7), rule 6 of the High Court was imposed on the magistrates courts. This was because ordinarily the magistrate court had no procedure around emergency applications.
In reply to Ms Chohan-Kota asking what exactly these rules were, Adv Moses told the Committee that the salient point of those rules was that in certain circumstances the court could do away with certain forms and requirements such as those relating to periods. There was quite a bit of case law around this area. Also important was the fact that rule 6(12)(b) provided that the party seeking an emergency application needed to show why such a procedure was necessary.
Ms Chohan-Kota took issue with the formulation of this rule. She was of the opinion that the rule allowed a degree of open-endedness that would allow magistrates courts to all but dispense with prescribed formalities. She said that it would be necessary to be more specific. If the rules of the High Court were to apply in the Magistrates Court, this needed to be made clear, including to what extent and under which circumstances. In the absence of such a provision, the Magistrates Court would be able to apply its own periods in respect of procedures for which there are periods prescribed in rule 6 of the High Court Rules.
Prof Lewis said she would note Ms Chohan-Kota's concern and review it the next day when the Committee would meet once again to discuss this matter. The meeting was adjourned.
DEPARTMENT OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT
PROMOTION OF ADMINISTRATIVE JUSTICE ACT, 2000
ADMINISTRATIVE REVIEW RULES
The Rules Board for Courts of Law has under section 7 of the Promotion of Administrative Justice Act, 2000 (Act No.3 of 2000), made the rules in the Schedule.
1. In these rules a word to which a meaning has been assigned in the Act shall bear the meaning so assigned, a word to which a meaning has been assigned in the rules governing the procedures of the court to which an application in terms of these rules is brought, shall bear the meaning so assigned, and unless the context otherwise indicates -
"applicant" means a person seeking judicial review of an administrative action under section 6 Of the Act;
clerk' means a clerk and assistant clerk of the court appointed under section 13 of the Magistrates' Courts Act. 1944 (Act No.32 of 1 944), a registrar and assistant registrar appointed under section 14 of the Constitutional Court Complementary Act. 1995 (Act No.13 of 1995) and section 34 of the Supreme Court Act, 1959 (Act No.59 of 1959), or a registrar appointed under any law not yet repealed by a competent authority and, immediately before the commencement of the Constitution, in force in any area which forms part of the national territory; ''deliver" means to serve copies on the parties and any other person affected and file the original with the clerk, and "delivery" has a corresponding meaning; "the Act" means the Promotion of Administrative Justice Act, 2000 (Act No.3 of 2000);
"the documents" means the documents referred to in rule 2(1)(b)(i) of these rules.
2. (1) Proceedings in a court for the judicial review of an administrative action shall be initiated by the delivery of a notice of motion, corresponding substantially with the form in the Annexure -
(a) calling upon the administrator to show cause why the administrative action should not be reviewed and the remedy claimed in the notice of motion granted; and
(b) calling upon the administrator -
(i) to despatch within 15 days after receipt of the notice of motion to the clerk two certified copies of the record of proceedings and documents relevant to the administrative action, including all documents before the decision maker when the decision was made, and the reasons for the administrative action in the event of reasons not yet provided; and
(ii) to, immediately after despatch, notify the applicant and any other person affected that he or she has done so and simultaneously despatch to the applicant and any other person affected a certified copy of the record, the documents and the reasons referred to in paragraph (b)(i).
2) The notice of motion shall also -
(a) set out an address within the distance prescribed in the rules
governing the application procedures in the court to which an application in terms of these rules is brought, where the applicant will accept notice and service of all process in these proceedings;
(b) set out the administrative action sought to be reviewed;
(c) indicate whether all internal remedies have been exhausted or whether application is made for exemption in terms of section 7(2)(c) of the Act; and
(d) be supported by an affidavit -
(i) providing particulars of the manner in which and date upon which the internal remedies have been exhausted or if not, setting out the facts and circumstances upon which the application for exemption is brought; and
(ii) setting out the grounds of review contemplated in section 6 of the Act, and the facts and circumstances upon which the review is sought.
(3) The costs of transcription, if any, and of the copies of the documents shall be costs in the cause.
(4) The applicant may within 10 days after the administrator has made the record of proceedings, the documents and the reasons available, by delivery of a notice and accompanying affidavit, amend, add to or vary the notice of motion and supplement the supporting affidavit.
(5) The administrator or any other person affected by the administrative action shall, if desiring to oppose the granting of the remedy claimed in the notice of motion -
(a) within 15 days after receipt of the notice of the moti~~n or any amendment thereof deliver notice that he or she intends to oppose and shall in such notice appoint an address within the distance prescribed in the rules governing the application procedures in the court to which an application in terms o~ these rules is brought at which he or she will accept notice; and
(b) within 30 days after the expiry of the time referred to in subrule (4). deliver
any affidavits he or she may desire in answer to the application.
(6) Save as otherwise provided in this rule, the provisions of the rules governing the application procedures in the court to which an application in terms of these rules is brought shall apply with the necessary changes to applications in terms of these rules:
Provided that in respect of a Magistrate's Court the provisions of rule 6 of the High Court Rules relating to the set down of applications and urgent applications shall apply with the necessary changes.
(7) Any document by which proceedings are instituted in terms of these rules shall be subject to the payment of the following court fees in the form of a revenue stamp:
(a) If proceedings are instituted in the Magistrate's Court: R 20, 00.
(b) If proceedings are instituted in the High Court: R 80, 00.
(c) If proceedings are instituted in the Constitutional Court: R 75,00.
3. These rules shall come into operation on 30 November 2001.
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