Revised Court Review Rules for Promotion of Access to Information Act & Promotion of Administrative Justice Act

Meeting report

Opening remarks
Mr S Swart (ACDP) chaired the meeting. He apologised on behalf of absent members and noted the lack of a quorum. He called on the Chief Director and Secretary to the Office of the Rules Board, Advocate Raj Daya, to present the revised rules of the Promotion of Administrative Justice Act 2000 (PAJA Rules).

Revised Rules of the Promotion of Administrative Justice Act 2000
Adv Daya said the PAJA Rules were informed by section 33 of the 1996 Constitution, which gave a right to lawful administrative action and demanded that national legislation give effect to this right. The Promotion of Administrative Justice Act of 2000 and the PAJA Rules sought to fulfil this demand. The first PAJA Rules had been approved in February 2009. However, in Lawyers for Human Rights v Rules Board for Courts of Law and Minister of Justice and Constitutional Development, the North Gauteng High Court had declared certain parts of the PAJA Rules unconstitutional. The PAJA Rules Committee had revisited the rules and decided to draft new rules. The new rules had been adopted in 2013 and approved by the Minister in 2015.

The underlying principles of the new rules were:

• Retention of the existing review procedure embodied in High Court Rule 53;
• Non-adoption of a special procedure for PAJA reviews;
• Alignment with existing procedural rules in both the High Court and Lower Courts; and
• Addressing shortcomings identified in the Lawyers for Human Rights v Rules Board case.

Advocate Paul Farlam, Committee Chairperson on PAJA, explained that the new rules were a radical departure from existing procedural rules in the high courts, which had been found to be problematic by the North Gauteng High Court. The Rules Board had found that the approach in the PAJA Rules of 2009 was untenable. For example, it did not give much room for certain forms of action, such as administrative action or challenges to legality. Similarly, it restricted counter-applications by litigants. Furthermore, the new rules sought to address the question of poor access to court records.

Mr Lungisani Neke, senior member of the Rules Board Secretariat, added that the new rules allowed for reliance on both the Magistrates Court and High Court rules.

Discussion
The Acting Chairperson sought clarification on the consultation process over the new rules.

Adv Daya responded that the Board had submitted the new rules to the Minister after their approval by the Board. Rather than Parliament, they had gone to the National Council of Provinces (NCOP) first because they had been invited for a briefing. The NCOP had approved the new rules after the briefing.

Ms C Pilane-Majake (ANC) expressed displeasure that the draft of the new rules had gone to the NCOP first. The same thing had happened with the Traditional Courts Bill. She said that the Committee’s procedures needed to be revisited to clarify the chain of consultation and briefings.

Mr Neke explained that the consultative process had involved as many role players as possible. These included lawyers’ organisations, non-governmental organisations (NGOs) and members of the judiciary. Comments had been sought from these groups and incorporated into the new rules.

Adv Farlam added that comments from academics had also been incorporated into the new rules.

Adv Daya stated that the procedures of the Rules Board did not involve a process in which proposals were put into the government gazette and used to invite comments. This was because the gazetting process reached only a few people, and certainly not key stakeholders. The Board had therefore created a contact list of stakeholders. However, the mechanisms for consultation were not very satisfactory and were constantly reviewed.

Ms Pilane-Majake asked whether there was a report of what the NCOP had approved.  

Adv Daya replied that, as evident in the documents submitted, the entire rules had been approved by the NCOP. The Acting Chairperson affirmed this by identifying the relevant portions in the minutes of proceedings of the NCOP briefing note.

Mr W Horn (DA) remarked that it was proper to obtain confirmation of the context of the new rules. He requested clarity on the additional amendments made after the input of the Minister.

The Acting Chairperson expressed concern over the long period between the invalidation of the PAJA Rules and the new rules, especially with respect to litigants’ access to justice.

Adv Farlam responded that the DoJ had addressed all the issues raised by the North Gauteng High Court judgement. Rule 53 had been used in the intervening period of the PAJA Rules’ invalidation, so there had been no real lacuna in the administration of justice. The Board had tried to reflect all the views of relevant stakeholders after the judgment, despite the cumbersomeness of the process.

The Acting Chairperson thanked the DoJ delegation and promised to release copies of the judgment to interested Committee Members. He repeated that the Committee lacked a quorum, but expressed confidence that the new rules would be passed.

Adv Daya remarked that the PAJA Rules of 2009 had never come into operation before the court had invalidated it. This meant that the review mechanisms in the High Court and Magistrate Court rules had been in use.

Briefing Note: Revised Rules under Promotion of Access to Information Act 2000
Adv Daya briefed the Committee on the Promotion of Access to Information Act of 2000 (PAIA). The PAIA was informed by section 32(1) of the 1996 Constitution, which granted everyone the right to information held by the state, or information held by another person, which was required to exercise this right. The PAIA was the product of the constitutional requirement of national legislation to promote the right to information. The Rules Board had made the existing PAIA Rules under a gazette, which came into operation on 16 November 2009. Subsequently, the PAJA/PAIA Rules Committee (PRC) had identified some shortcomings in the rules which, together with some judicial pronouncements, had resulted in a holistic revision of the rules.

The PRC had made amendments to the PAIA rules of procedure and sent them to role-players on 14 April 2014 for comments. Final comments and recommendations had been discussed on 12 February 2015 and had resulted in the second revised draft rules. The Board had approved them on 20 March 2015. The revised rules had been scrutinised by the Office of the Chief State Law Adviser and discussed by the PRC on 26 June 2015. On 16 December 2015, the Minister had approved the Board’s revised PAIA Rules. On 28 January 2016, a memo had been sent to the Ministry requesting a presentation of the revised PAIA Rules to Parliament.

The underlying principle of the PAIA Rules was that the rules formulated in terms of section 79(1) of the PAIA should make provision for the existing procedure of High Court Rule 6 and Magistrates’ Courts Rule 55 with respect to applications for access to information. Also, the applicant now has 180 days to bring an application to court for appropriate relief. Furthermore, an ex parte application must be made under oath or affirmation of the truth thereof, and be supported by documentary proof where applicable.

Adv Farlam clarified the application of High Court and Magistrate Court rules, ex parte applications and constitutional court judgements. He added that court fees had been abolished.

Mr Neke said that numerous responses had been received on the new rules, and these responses had been considered in the revision of the rules.

Adv Daya said that the rules needed to be simplified for users and aligned to the rules of the high and lower courts. As criticised by the court, the previous rules had been too elaborate. The DoJ was happy to incorporate clarifications from Members.

Discussion
The Acting Chairperson expressed concern over negative research reports on the new rules, which indicated that only 30% of applications for access to information had been granted.

Mr L Mpumlwana (ANC) sought clarity over the removal of court fees.

Ms Pilane-Majake called for a general, pragmatic approach to access to information.

Adv Daya explained that court fees had been removed because of difficulties in using revenue stamps, which had caused revenue losses to the government because people had appropriated the stamps.

Mr Mpumlwana asked whether the abolition of court fees meant that a person could obtain court documents free of charge.

Mr Neke explained that the Stamp Duties Act had abolished the usage of revenue stamps in 2009. This had been followed by a high court judgment on the same decision. There was now no need to use revenue stamps in court documents.

Following Mr Mpumlwana’s request for further clarification, Adv Daya replied that there was a rule relating to revenue stamps that had been repealed. A person need not pay for an application to court for access to information. However, obtaining other documents from the court, or making photocopies, may attract charges, depending on the court concerned.

The Acting Chairperson welcomed this abolition of court fees as an improvement to access to justice. He asked for an explanation of the consultation process in the PAIA Rules.

Mr Mpumlwana queried the absence of uniformity in the adherence to the abolition of court fees.

Mr Neke stated that although the revenue stamp was no longer in use, the relevant unit trying to streamline the procedure was the Court Services Unit of the DoJ.

The consultative process for the new rules was very inclusive. The participants include the Law Society of South Africa, the Advocates Society of KwaZulu-Natal (KZN), the South African National Association of Sheriffs, the Judicial Officers’ Association, and representatives of the Legislative Development Unit of the Department of Justice. The concerns of these bodies had been reviewed and sent back for further comments.

Adv Farlam clarified that the court rules were applied uniformly in the country – for example, the non-payment of fees for applications. However, the administrative procedures were slightly different. This was problematic and was being addressed.

Mr Neke added that the old PAIA rules gave applicants 30 days, whereas the new rules give 180.

The Acting Chairperson thanked the delegation and adjourned the meeting.