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PORTFOLIO COMMITTEE ON JUSTICE & CONSTITUTIONAL DEVELOPMENT AND SELECT COMMITTEE ON SECURITY & CONSTITUTIONAL AFFAIRS 25 November 1999 ADMINISTRATIVE JUSTICE BILL [B56-99]: BRIEFING
Administrative Justice Bill
South African Law Commission Report South African Law
Commission Memo regarding changes to the Bill Submissions
The Department of Justice pointed out that the consequences of not passing the Administrative Justice Bill in time or of passing legislation that does not fully provide for the rights of Section 33 of the Constitution need not be disastrous. The rights of Section 33 would remain and could still be legislated on. The Bill basically sets out what is expected of administrators, what would give a person grounds for review and how this review would be possible. The regulations set up an advisory council which will hopefully lead to a tribunal system or a review process that is more accessible than the High Courts. It is possible that redrafting will have to occur following the SARFU judgement which stated that an administrative action is not defined according to who is carrying out the action rather by the function performed.
r Johan de Lange of the Department of Justice began the briefing by explaining that the basis of the Bill was the report made by the Law Commission on how Section 33 of the Constitution could be given effect to. However he felt that the department had gone on to produce the Bill that they wanted and that its structure and effect does differ from the Law Commission suggestions. Mr de Lange went on to explain the consequences of not passing the legislation by the 4 February deadline or of passing legislation that was unconstitutional in failing to give full effect to the rights set out in Section 33 of the Constitution. Schedule 6, Section 23(2)(b), sets out the transitional arrangements for a person's right to administrative justice until the national legislation of Section 33(3)is enacted. These transitional arrangements are the rights to administrative justice set out in the interim Constitution. Both these rights and Section 33(3) will lapse on the 4 February if no legislation is enacted or if it fails to give full effect to Section 33(1) and 33(2). What will remain are the rights that Sections 33(1) and 33(2) provide for. This need not be problematic as Parliament can legislate on any rights as long as this legislation falls within the constitutional limitation clause of Section 36. Mr de Lange therefore felt that in the unlikely event of the Bill giving full effect to 33(1) and 33(2) it would not be unconstitutional and further legislation would always be possible. Mr de Lange went on to explain the various sections of the Bill and mentioning what he felt were important points.
Section 1 Definitions
'administrative action' follows the definition set out in the Constitution. This is a wide definition but does exclude what is considered executive or legislative actions of government. A natural or juristic person exercising a public power or performing a public function is specifically included. Â· 'qualified litigant' is quite a wide definition which Mr de Lange felt was very important.
'court' includes designated magistrates courts as it is envisaged that they will be given the power to review administrative action.
Section 2 Right to administrative justice
This section should fulfil the obligation of 33(3)(b) and provide for the rights of 33(1) and 33(2).
Section 3 Interpretation of Act
This makes it clear that other established rights that are consistent with this Act remain valid. Administrative law should continue to develop according to common law and not override it.
Section 4 Procedurally fair administrative action
This sets out the core criteria for what is procedurally fair action and allows for departure from this if it is justified or set out in other laws. Lots of scope has been built in to this clause to allow for necessary deviation.
Section 5 Administrative action affecting public
This sets out what will become standard procedures in dealing with administrative action that adversely affects the public. These procedures will include fulfilling the demands of Section four the possibility of holding a public inquiry or following a notice and comment procedure.
Section 6 Reasons for administrative action
A general obligation is placed on administrators to give written reasons for action as requested and provides for the enforcement of this obligation to furnish reasons. The clause also allows flexibility from this to ensure that unreasonable administrative burdens do not develop.
Section 7 Grounds of review
This sets out the criteria to determine whether an administrator has failed to carry out just administrative action. The criteria are based on the development of common law and will continue to develop in line with Section 8(3) of the Constitution.
Sections 8, 9 and 10 Procedure for review, remedies and time periods
These set out the procedure for review by the court, possible variations in time for instigating proceedings and remedies that might be granted by the court.
Section 11 Regulations
These empower the minister to make regulations, most importantly on the establishment of an advisory council. This will advise on the impact and development of the Act and investigate the possibility of establishing tribunals to allow for the review of administrative actions outside of the courts.
Ms Camerer (NNP) asked for clarity on whether the constitutional deadline of 4 February remained important and what negative consequences there might be if legislation was not passed.
Mr de Lange (of the Department of Justice) said that the consequences for not passing legislation would not necessarily be negative. Current rights - as set out in schedule 6, Section 23(3) - would lapse as would Section 33(3) of the Constitution demanding national legislation. However the less detailed rights set out in Sections 33(1) and 33(2) would remain and could still be legislated on. As paralysis, through levels of requests for review, has not occurred so far, it is unlikely that there will be a big impact on administration if transitional rights collapse. More likely to happen is that the legislation passed will not give full effect to constitutional rights. The legislation will effectively be unconstitutional but with the lapse of 33(3) it will be able to remain.
Adv de Lange, the Chairperson, made the important point that the legislation should be passed by the 4 February deadline because of public expectation and possible political fallout if it is not passed.
Mr Smith (IFP) pointed to the specific reference in 33(3)(c) that national legislation should promote efficient administration. However it is not specifically legislated for in the Bill
Mr de Lange felt that efficient administration would be promoted by many of the stipulations of the Bill and would also be enhanced by the regulations. He accepted that the Law Commission had wanted efficiency legislated for within the Bill itself through their proposed administrative review council. However he pointed out that the Law Commission has since agreed the Bill captures the requirements of 33(3)(c).
Ms Smuts (DP) asked why Clause two failed to define a person's right to administrative justice as that set out in the Constitution, instead reverting to the language used in the interim Constitution. She also questioned the use of 'adversely' in every sub-clause.
Mr de Lange explained that the drafters had been unsure of the intention of 33(1) and 33(2) in being broader than the interim Constitution. The language of the interim Constitution had been used so that all its detail could be captured in the legislation not so that rights were narrowed. He felt that the use of adversely was only in line with its use in 33(2).
Ms Smuts wished to know why the chapter on rules and standards proposed by the Law Commission had not been included.
Mr de Lange said there was concern as to what would be expected by such a chapter and whether it would only serve to grind administration to a halt. He also pointed out that it had not been totally omitted.
Ms Smuts inquired as to why some definitions changed from draft to draft, most notably the level of inclusion of the actions of the National Executive under 'administrative action'.
Mr de Lange explained that some definitions had changed following the advice of the Chief State Law Advisor whilst the Law Commission had decided that some of their original definitions were too wide. The key influence on these opinions had been the SARFU judgement which said each function must be looked at instead of looking at the body carrying it out. It also recommended that decisions as to what is an administrative action must be made on a case by case basis. As this Bill had been drafted before SARFU, adaptations will still have to be made. Mr Smith was concerned that the Section three on the interpretation of the Act did not recognise the powers of traditional leaders and the laws with which they govern. He thought more specific detail may be required.
Adv de Lange felt that the powers of traditional leaders would not be overridden by Section three and that this general clause was sufficient in dealing with the application of the Bill.
Adv de Lange felt that the reference in Section 1(i) to 'any' act or decision carried out by the categories set out in (a), (b), (c) and (d) would have to be revised in line with the SARFU judgement. Mr de Lange accepted that this was the case.
Adv de Lange made the point that 33(1) and 33(2) only speak of 'rights' and yet the Bill speaks of 'rights, interests and legitimate expectations', as the interim Constitution had. It does not make sense for the language of the interim Constitution to be used above that of the Constitution.
Mr de Lange referred to footnote 16 of the Law Commission report which explains the possible problems if 'interests and legitimate expectations' are omitted. Ms Jana (ANC) asked exactly how this Act will be subject to the Open Democracy
Act, as referred to in Section six
Mr de Lange said that reasons for administrative action could not be given to a person if they contained information that would not have been given out under the Open Democracy Act.
Adv de Lange expanded on this saying that information that falls under the exemptions of the Open Democracy Act could not be used in the giving of reasons for administrative action. Both Bills must be drafted so that they fit together without conflict, this would ensure that reasons did not fall under exemptions and avoid the need to make this general reference to the Open Democracy Act.