Regulations of Promotion of Administrative Justice Act: briefing

Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
7 November 2001
REGULATIONS 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
Regulations on Fair Administrative Procedures

SUMMARY
The Committee reviewed the changes made the previous day to the Rules. This was followed by a briefing on the Regulations.

MINUTES
Administrative Review Rules
Ms Chohan-Kota noted that the Committee should wait and only vote on the Rules the following week when Adv de Lange had returned to the Committee. The Rules had to be passed before the 30 November 2001.

Adv Mosses, from the Rules Committee, indicated the changes agreed to on the previous day that had been effected to the Rules:
- the term ‘day’ is defined as a court day.
- the reduction of the number of certified copies to be submitted to the clerk of the court, from two copies to one.
- deletion of the rule that made the cost of transcription a cost in the cause as this took away from the judge a discretion to cast such costs on a specific party regardless of which party won or lost the litigation.
- Subrule 2(5) was made clearer that the provision related to the 10 day period.
- Under subrule 2(6) the was a savings provision which provided that the Constitutional Court and the Supreme Court of Appeal could use their own rule should they need to. However, due to the fact that the Magistrates Court had no such procedure, the rules currently being considered would apply. If these were not appropriate, then the relevant High Court Rule would apply, namely High Court Rule 12(6).

Ms Chohan-Kota asked for further clarity.

Mr Van Rensburg, also of the Rules Board, explained that in the Supreme Court of Appeal and the Constitutional Court, the current rules being considered would apply. However, when a lacuna arose, then the rules of that court would apply so far as this is possible. However, when there is such a lacuna in the Magistrates Court, then the High Court Rules apply.

Ms Chohan-Kota raised a concern about the transcription. She noted that the rules required the submission of a record of the proceedings in the event of a judicial review. She asked whether this would impose a duty to keep accurate records. If this were so, then it would cause a number of problems as it would necessitate the provision of recording equipment and transcription services. Practically this could be done in some courts but not those in remote parts of the country.

Mr Van Rensburg said that accurate records were not always kept and transcriptions were not the norm. This was not important as the salient issue was if the administrative action had been fair or not. For this reason, he was surprised when he saw the express provision for records in the rules. He stated that administrative action could be fair without the keeping of records.

Ms Chohan-Kota asked if Mr Van Rensburg was saying that the rules should provide that records should be submitted if they exist.

Mr Van Rensburg was of the opinion that this was not necessary because if there were no records then it would be impossible to supply the records and comply with the obligation.

Ms Chohan-Kota was in agreement but said that the salient issue here was whether or not the Committee should provide for an obligation to keep records at occasions such as public hearings.

Mr Van Rensburg warned that placing such a burden on the State should be done with great care.

Ms Chohan-Kota said that at the very least it should be clear in the rules that there might not be a record.

Mr Van Rensburg had a different view. He said that this was not necessary as it was implicit that if there was no record then one could not be expected to submit one. An individual could not be expected to meet a requirement that is impossible to fulfill. However, Mr Van Rensburg agreed that the position needed to be clarified in rule 2(1)(b).

Regulations on Fair Administrative Procedures
This section of the meeting, as Ms Chohan-Kota explained, would be purely a briefing. This was because the regulations, unlike the rules, merely had to be submitted to Parliament and not passed by Parliament. Mr Van Rensburg from the Department of Justice (Secondary legislation) briefed the Committee on the Regulations.

Mr Van Rensburg explained that the Act dealt with three main subjects. These were:
- administrative action affecting an individual's private rights;
- administrative action affecting a communities’ or public rights; and
- the furnishing of reasons.

Chapter 1: Notice and Comment Procedure
Under this heading it was required that an administrator taking action that could negatively affect the rights of anyone, needs to inform those people of the administrative action, their right to request reasons in writing and their right to appeal against the administrative action.
The most important of these mechanisms is the public enquiry \. In terms of regulation 3, notice of the public enquiry must be given in at least the Government Gazette. Notice could also be given in a local newspaper if the administrative action would affect only that area. In terms of the notice, enough information must be given to enable people to know what was going on, to comment and make a statement regarding the action.

Ms Chohan-Kota asked why the notice was published in the Government Gazette when people hardly ever read it, especially people in rural areas where action like this would occur quite often.

Mr Van Rensburg said that notice was given through the Gazette because newspapers were limited to a specific area. The Government Gazette was also the traditional means through which such notices were conveyed.

Ms Chohan-Kota appreciated Mr Van Rensburg’s argument but pointed out that newspapers had been used in relation to some actions. She asked why this could not be done for the other types of action as well.

Mr Van Rensburg explained that newspapers were used to give notice of the public enquiry over a smaller area.

Ms Chohan-Kota accepted Mr Van Rensburg’s argument for the time being but flagged the issue for reconsideration.

Mr Van Rensburg said that publication in the newspaper could be done at the discretion of the administrator, and cautioned the Committee against overburdening the administrator.

Imam G Solomon (ANC) commented saying that the concepts being discussed were not easy to comprehend if not discussed in a practical context. He gave the example of a power line to be erected in an area where the cables would run through a village or a neighbourhood. He asked when and how the people being affected would be able to comment and try and get the action halted if they so desired.

Mr Van Rensburg said that the public’s right to comment gets ‘activated’, or at least is invited, through publication in the Government Gazette. In addition to this the administrator is obliged to see how else these people could be informed. In providing for this obligation the drafters tried not to be too onerous. An example given by Mr Van Rensburg was in the context of a community with a high illiteracy rate. Publication in either the Government Gazette or the local newspapers would not help. In such circumstances, the administrator would have to call a meeting and explain the matter orally.

Mr M Mzizi (IFP) directed Mr Van Rensburg’s attention to regulation 4 where it said that a notice published in terms of the regulations had to in at least two of the official languages. Mr Mzizi said given South Africa’s diverse population and its pool of eleven official languages, he asked which two official languages would this be. He added that his confusion came from the fact that in regulation 4(1) there was a reference to the two official languages, while in regulation 4(2) it referred to a preference.

Mr Van Rensburg explained that the two official languages would include any of the eleven official languages. Which two would depend on the area and what the people being affected spoke. Subregulation (2) was put in to explicitly provide that the preferences of the people in the area be taken into account.

Imam Solomon suggested that in light of the fact that not many people read the Government Gazette and only some read the newspaper, the notice should be put up on notice boards at churches, libraries and other public buildings.

Chapter 2: Public Inquiries
Ms Chohan-Kota pointed out that in terms of the regulations, the administrator had to post a second notice in the newspapers inviting the public to come to the public hearing. She argued that if not overburdening the administrator was such a problem, then perhaps they should be allowed to give notice of both the public inquiry and the public hearing at the same time.
Mr Van Rensburg explained that because of the practical manner in which the process was managed this would not be possible. In such a process there were always two streams of information. There were those people who made their submissions in a written form. Then there were those who requested an audience. Standard practice was to publish a notice of a public inquiry in the newspaper of Government Gazette, inviting public comment. When the responses come in, the administrator looks at how many people respond and indicate that they would like to make an oral submission. From the response received, the administrator decides whether it is worthwhile to have a public hearing. If it is felt to be worthwhile, then the administrator uses the information to determine how long the meetings will take, how a big a venue to organize and other logistical considerations.

Ms Chohan-Kota summarised the issues raised:
- the medium in through which the notice is communicated and
- the possible collapsing of the public inquiry and the public hearing into one procedure.

Mr Van Rensburg reiterated that the Government Gazette was the traditional medium through which such notices were conveyed. He added that there were also non-governmental organizations who watched the Gazette and raise concerns on behalf of others less informed. Despite this however, the administrator was also obliged to approach substantially affected individuals.

Chapter 3 Request for Reasons
Mr Van Rensburg told the Committee that Chapter 3 contained more general provisions which applied to all administrative procedures. This Chapter was put in simply because the drafters felt it would be better to include rather than omit it. It provided that when an administrator conveys its decision to a private individual or community, then it must tell them of their right to review the action and their right to request written reasons.

The Committee did not have any problem with this chapter and after a brief discussion of it, the meeting was adjourned.