Promotion of Administrative Justice Act: Code of Good Administrative Conduct: Department's briefing

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Justice and Correctional Services

12 September 2011
Chairperson: Mr L Landers (ANC)
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Meeting Summary

The Department of Justice and Constitutional Development briefed the Committee on the Code of Good Administrative Conduct in terms of the Promotion of Administrative Justice Act, 3 of 2000. This Code was drafted by the Minister of Justice in terms of Section 10(5)(a) of the Promotion of Administrative Justice Act, No 3 of 2000 (PAJA). It had to be approved by Cabinet and Parliament. Although Cabinet had approved the Code in 2008, this Committee had expressed some concerns over the Code, based on the Committee Researcher’s report at the time. Parliament did not actually have the power to require the Code to be changed, as it could only accept or reject that Code. The Code now had been redrafted to incorporate the Rules drafted by the Rules Board in respect of PAJA matters. In the meantime, though, Lawyers for Human Rights had challenged the Rule relating to documents, claiming that all documents, not only that “relevant to the discussion” of a particular matter, should be made available. It was therefore possible that if this challenge was successful, the Rules, and Code, may have to be amended.

The Department provided an executive summary of the Code, noting that it was drawn to ensure that administrators embodied good administrative conduct in all their actions, and followed section 33 of the Constitution, PAJA, the Code and the provisions of any specific other legislation that bound them in their particular field. The Code itself was essentially a manual and guide, and any departure from the Code was not actionable, although it would indicate a departure from proper application of PAJA and the Constitution as a separate issue. Chapter 1 of the Code contained the legal framework, and made reference to section 195 of the Constitution, which governed the conduct of administrators when they performed their functions, as well as setting out principles of batho pele.  Chapter 2 unpacked the different elements of administrative action, emphasised the PAJA principles, and set out exceptions. Chapter 3 set out the elements of lawfulness, and delegation. Chapter 4 explained what decision makers had to do before and after a decision was made, and set out a flow chart, emphasising that fairness applied both to natural and juristic persons. Chapter 5 set out the consultation procedure where an individual was affected, highlighted the importance of record management, and setting out what had to be provided to applicants. Chapter 6 set out consultation procedures where the public was affected, highlighting section 4 of PAJA, and setting out a flow chart. Chapter 7 set out instances where there might be departure from the minimum requirements of PAJA, but it was stressed that administrative convenience was not an adequate reason for sacrificing procedural fairness. Chapter 8 set out the concept of “reasonableness” but further case law was now tending to emphasise “rationality”. Chapter 9 emphasised the communication of the decision, and the information to be provided. Chapter 10 dealt with the giving of reasons, and included the PAJA Rules. Chapter 11 provided for 30 days in which an applicant could request the administrator to furnish a list of the relevant documents. Chapter 12 provided an explanation and guide on the concept of judicial review. Administrators were advised to immediately seek legal advice if they received a Notice of Motion. Chapter 13 of the Code was a practical example of good administrative conduct.

The Committee questioned the basis for Parliament only being able to approve or reject the Code, and the Department explained that this was why it had decided to present it to the Committee on an informal basis. Members enquired about the reasons for the challenge, and believed it may not be resolved soon, and also suggested that in the meantime the Code should perhaps be processed, alternatively that the Rules be excluded, as this was a long-outstanding matter. The Committee noted the Department’s advice that while the Code was not in operation, litigants would not be able to call for review of actions by the court. Members asked what training had been done of magistrates, and whether the Code was included in academic curricula. A Member suggested that the Minister should proceed to approve the Rules, notwithstanding the pending action.

 

Meeting report

Promotion of Administrative Justice Act: Code of Good Administrative Conduct: Department of Justice and Constitutional Development briefing
Advocate Deon Rudman, Deputy Director General: Constitutional Development, Department of Justice and Constitutional Development, said that the Code of Good Administrative Conduct (the Code) was drafted by the Minister of Justice and Constitutional Development, in terms of Section 10(5)(a) of the Promotion of Administrative Justice Act, No 3 of 2000 (PAJA). The Code had to be approved by Cabinet and Parliament. Cabinet had approved the Code in 2008. When the Code was presented in Parliament the Committee did not consider the contents of the Code itself, but focused rather on a paper drafted by the Committee Researcher about the Code, which highlighted certain concerns. The Committee itself could not amend the Code.  The Committee also approved Rules that were drafted by the Rules Board on issues relating to PAJA.

The Department of Justice and Constitutional Development (the Department or DoJ&CD) had conducted further research and consultations, and had now decided to amend the Code. He further reported that one of the Rules, relating to disclosure of documents, was subjected to a challenge of constitutionality. The Rule indicated that only documents that were relevant to the discussion of a particular matter should be relevant for discussion, but the applicant had been of the view that all documents should be made available.

The suggestion from the Researcher that the Rules should be included in the Code had been done. However, the decision of the Court might still affect the Code.

Ms Ina Botha, State Law Adviser, Department of Justice and Constitutional Development, added that the purpose of the Code was to ensure that administrators followed good administrative conduct, which basically entailed following the law. Administrators had to follow both PAJA and the specific Act that allowed administrators to perform their duties. Administrators had to be aware of the inter-relationship between section 33 of the Constitution, PAJA, and the Code. The Code highlighted the necessary requirements in PAJA that administrators had to follow. The Code itself should be seen as a manual and guide. Any departure from the Code would be an indication that the Constitution and PAJA had not been properly applied, so it was not possible to institute legal proceedings on the basis of a departure from the Code, but rather it was an indicator that the PAJA or Constitution had not been properly applied.

Ms Botha then tabled an executive summary of the Code of Administrative Conduct, saying that it essentially explained PAJA in practical terms. She reminded the Committee that PAJA was to do with procedural fairness.

Chapter 1: General Information about Good Administrative Conduct
Ms Botha said that this Chapter established the legal framework, in terms of the Constitution. There was reference to Section 195 of the Constitution, which governed the conduct of administrators when they performed their functions. Batho Pele was an important principle to be borne in mind by administrators. There was also mention of PAJA and its procedural features.

Chapter 2: Administrative Action
Ms Botha said that this chapter unpacked the different elements of administrative action. It was also emphasised that where administrative action was being taken, PAJA had to be followed. Reference was made to exemptions in relation to administrative action. These were contained in sections 1 and 2 of PAJA, which could also be determined by the Minister of Justice.

Chapter 3: Lawful Administrative Action
Ms Botha said that administrators were alerted to the concept of lawfulness as well as its different elements. Administrators were alerted as to how and when to delegate. They should ascertain whether they had the power to act in accordance with legislation.

Chapter 4: Fair Procedures
Ms Botha said that this chapter explained what decision makers had to do before and after a decision was made. The concept of “bias” and “reasonable bias” were clarified, as administrators may not know exactly what it entailed. Fairness also had to be applied where the other party was a juristic person, as a juristic person was entitled to the same protection. Page 19 of the Code set out a flow chart for the initial steps that were taken when a decision was made.

Chapter 5: Consultation Procedure where an individual was affected
Ms Botha said that this chapter related to the consultation procedure where an individual was affected. Administrators were requested to use template forms with standard headings that were required in PAJA. The importance of record management was highlighted. A requirement was set out for a hearing or written representation, to deal with the situation when persons were to be offered the opportunity to be heard. Administrators had to indicate, in their response to the applicant, where and to whom a request for reasons must be made, what information should be provided and where to get assistance in this regard.

Chapter 6: Consultation Procedures where the public is affected
Ms Botha said that administrators were reminded that they had to follow Section 4 of PAJA. The public inquiry steps were set out on page 26.It was important for administrators to take note of the requirements for a report emanating from a public inquiry. On page 30 there was a note to administrators that they should always inform persons of the steps that were going to be followed during the process. On page 31 there was a flow chart that explained the consultation procedure.

Chapter 7: Reasonable and Justifiable Departures
Ms Botha said that this chapter set out instances in which there might be departure from the minimum requirements of PAJA. Departure from PAJA could be done in exceptional cases, and the threshold would always be whether the departure was reasonable and justifiable. On page 33 administrators were warned that administrative convenience was not an adequate reason for sacrificing procedural fairness.

Chapter 8: Reasonableness
Ms Botha said that as jurisprudence had developed on the concept of reasonableness, it had become clear that there was a deviation on the concept as it had been developed in the first few cases, and there was now more emphasis on “rationality”. The concept of “error of law” was explained on page 35. The factors to be considered by an administrator, in order to ensure that action taken was reasonable, were set out on page 35.

Chapter 9: Informing people of the decision
Ms Botha emphasised that the decision had to be communicated to the person or public. It was emphasised again that reasons had to be given for the decision. The administrator also had to inform the person of the right to request reasons. If there was a public inquiry there had to be a concise report.

Chapter 10: Giving reasons for decisions
Ms Botha said that this Chapter also dealt with the giving of reasons. The PAJA Rules were included under this chapter. Ten days were set out for the administrator to respond to the request for reasons. This chapter further emphasised, for administrators, what the giving of reasons meant. The flow chart on page 41 set out the complete administrative process.

Chapter 11: Disclosure
Ms Botha said that an applicant could request the administrator to furnish a list of the relevant documents, within the prescribed period of 30 days.  

Chapter 12: Judicial review of administrative act
Ms Botha said that this chapter gave an explanation on the concept of judicial review and what it entailed. Administrators were advised to immediately seek legal advice if they received a Notice of Motion, as they may not understand all the technical legal issues surrounding that Notice. Administrators were informed that they were allowed to seek advice, but they may not act on instruction. The difference between reasonableness and rationality was explained. She outlined that “rationality” entailed giving a decision based on the information before the administrator.

Chapter 13: Good Administrative Conduct, practical example
Ms Botha said that this Chapter set out a practical example of the whole administrative process.

Discussion
Ms D Smuts (DA) noted that Parliament was to “approve” the Code, but could not “amend” it. She asked how this worked, from a practical point of view.

Adv Rudman replied that this was one of those situations where Parliament could approve or reject something, but not amend it. This was why the Department had requested that the Code be presented on an informal basis to the Committee, for comment.

Mr J Jeffery (ANC) asked in which court the Rules had been challenged. He thought that this was not a matter that would be resolved soon.

Adv Rudman said that the challenge was made in the South Gauteng High Court. He pointed out that should the final decision go against the Department, then the Code would have to be amended.

Ms D Schäfer (DA) asked if it was not possible to approve the Code despite the pending case since the rule had not already been deemed to be unconstitutional. She wondered if, given that this matter had been pending for several years, it was really necessary or desirable to keep this in abeyance still.

Adv Rudman said that it was not desirable and agreed that the processing of the Code should continue. A further option might be simply not to refer to the Rules in the Code.

Mr Jeffery said that it would seem odd to draft a Code and not include the Rules in it. He pointed out that usually a legal dispute on legislation did not result in that legislation still being proceeded with or processed. He wondered, however, whether the Minister was likely to reconsider whether the Rules should come into operation in the meantime, and asked that a response on this be provided to the Committee, once the Minister had applied his mind to the matter.

Adv Rudman said that one of the requests filed by the applicant in the court case, Lawyers for Human Rights (LHR), specifically requested that the Minister should not put the Rules into operation pending the outcome of the court case.

Ms Schäfer asked what the Department had been doing for the past eleven years when it was supposed to be processing the Code.

Ms Christine Silkstone, Parliamentary Researcher, said that there was a statutory obligation to pass the Code, since the whole intention behind the Code was to facilitate proper administrative justice for citizens.

Adv Rudman added that courts had to be designated by the Minister to deal with issues emanating from the Act. Effectively, the Code could only come into operation once Magistrates had been trained on it.

Adv S Holomisa (ANC) asked what negative effect would result if the process were to be stalled.

Ms Botha responded that if the PAJA Rules were not in operation, litigants would not be able to take judicially reviewable actions by officials to the courts. The Code would also provide practical guidelines for officials on executive action.

Adv Holomisa asked if there had been litigation on this issue.

Ms Botha said that there had been a lot of case law that had developed since the enactment of PAJA. Many magistrates had been trained, but a lot of those magistrates had since left the service. For this reason it had been necessary to undertake more training as well as refresher training, and this was being done

Professor G Ndabandaba (ANC) asked if the Code formed part of the Administrative Law syllabus for law students.

Ms Botha said that as far as she knew it did not.

Adv Rudman said that once the Code was published, universities would probably incorporate it within their curricula.

Ms Schäfer suggested that the Minister should approve the Rules. She said that the Department should be thanked for the substantial work put into the Code.

Ms Schäfer asked whether, if a decision should be taken that would result in access to the documents being refused, that decision could be appealed.

Ms Botha said that she was not sure.

Adv Rudman said that he would follow up on the implementation of the Rules.

The meeting was adjourned.

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