Administrative Justice Bill: public hearings

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Justice and Correctional Services

25 November 1999
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Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE; SELECT COMMITTEE ON SECURITY AND CONSTITUTIONAL AFFAIRS
26 November 1999
ADMINISTRATIVE JUSTICE BILL: PUBLIC HEARINGS

Submissions handed out:
Department of Land Affairs
South African Human Rights Commission
Legal Resources Centre
Public Protector
Commission for Gender Equality
NADEL
South African Council of Churches Submission (SACC)
Western Cape Provincial Government

SUMMARY
Morning session
The Department of Land Affairs argued that rights should not only be adversely affected but also "materially affected" to give rise to administrative action litigation. Furthermore the submission was made that courts should not review cases involving policy decisions made by administrators.

The South African Human Rights Commission submitted that an Administrative tribunal would be a better forum for review than the court, considering the complexity of the High Court and the workload of the Magistrates' Court. Also that Clause 2 should be redrafted to make it conform to the Constitution.

Submissions were also heard from Legal Resources Centre, Public Protector, Commission for Gender Equality and NADEL

Afternoon session
The SACC raised concerns that the Bill does not go far enough in promoting a just administrative culture. Specific exclusions from the Bill are too broad. The right to just administrative action has been narrowed to the right defined in the interim constitution, a definition rejected and replaced by the broader, less qualified right of the present constitution. The test for procedural fairness must ensure all administration action is shown to be fair and recognise that failure to act can be unfair. Impetus for administrators to act fairly and the development of a fair administrative culture from the outset must be encouraged. It is not enough to merely correct injustice that has already affected people.

The emphasis of the Western Cape Provincial Government submission was that although administrative action must be fair and accountable, national legislation must also promote an efficient administration. The current Bill will not do this, will increase bureaucracy and will impact negatively on service provision and delivery.

MINUTES
Department of Land Affairs
Prof G Budlender, Director-General, pointed out that the trigger which brings administrative action within the ambit of the Bill is that rights (and sometimes interests) are adversely affected or threatened. He said that, though this is an appropriate test, this would result in slowing down effective administration and giving rise to litigation in unnecessary cases. To resolve this he proposed that the word `materially' be added, which would then read rights that are "materially and adversely affected or threatened". This would effectively narrow down the test for litigation and therefore also the possible actions against administrative bodies.

Discussion
Ms P Jana (ANC) commented that instead of assisting in the matter this proposal would complicate matters, especially when it is not clear who is to determine what is "material".

Prof Budlender responded that it would be for the courts to decide whether a right has been adversely affected, once this is done the court must also decide whether the right has been materially affected.

With regard to his proposal for the use of administrative tribunals, Ms P Jana (ANC) expressed the view that courts hear evidence, make an assessment thereon and then make a decision, therefore considering this process the courts are in a better position to make judgment in cases of review of administrative action.

Prof Budlender said courts are there to stop the abuse of power and are not equipped to deal with administrative policy matters. Furthermore the courts are not accountable and no one can call them to explain their judgments.
As an example of courts reviewing policy decisions made by administrators, he cited the Diepsloot case where the decision made by the administrator was of a policy nature. Prof Budlender submitted that the court should not have been asked to make a decision on a policy matter as this does not result in good decision making.

Mr M Masutha (ANC) said he supported Prof Budlender's proposal regarding the deletion of (i) and (ii) of Clause 7 (g). Mr Masutha then asked whether the wording of Clause 4(1) has the effect of overstepping the provision in the Constitution, which only refers to rights and not interests

Prof Budlender responded that the inclusion of interests is important and added that this would broaden the range, but it is important that the threshold is right.

Mr J de Lange (ANC) asked whether clause 7 goes beyond common law grounds.

Prof Budlender said that clause 7 is a good, accurate summary of common law grounds.

South African Human Rights Commission (SAHRC)
Prof K Govender and Ms R Solomon represented the Commission. Prof Govender said that the SAHRC submission focuses mainly on the importance and implications of clause 2. He urged the drafters to look more closely at clause 2 to make it conform to the Constitution. Clause 2(3) makes reference to administrative action being subject to review by either the courts or an independent and impartial tribunal. Prof Govender submitted that an Administrative Tribunal is a better forum than a court, as it is formed by administrators as well as it being a speedy process.

Discussion
Mr P Smith (IFP) asked what the SAHRC view is pertaining to the whole procedure set out in clause 4(3).

Prof Govender said that it is important to draft Administrative Action legislation in this way, as it provides flexibility.

The Chairperson, Adv de Lange, asked Prof Govender to explain more on their views on the use of tribunals.

Prof Govender said the Constitution recognises administrative tribunals. He went on to say that "in order to be faithful to the right of administrative action
there is a need for a council or co-ordinating body. The best way of enforcing the right is by Administrative tribunals. Given the complexity of the High Court and the workload of the Magistrates' court there is definitely no room for administrative action cases" Prof Govender said.

Legal Resources Centre
The Legal Resources Centre, represented by Mr C Plasket and Mr S Kahanovitz, said that LRC fully supports this Bill as it will bring about great reform in the administration of this country.

They were however concerned with regard to S8 (1) of the Bill, which stipulates the time periods for instituting legal proceedings. Representing poor people in rural areas differs from representing rich people, because things happen at a different pace in rural areas. The 180 day time period for the launching of judicial review proceedings will undoubtedly work to the detriment of the poor, the illiterate, and the marginalised, as they do not have easy access to lawyers.

With regard to jurisdiction, they believe that administrative justice should be played out in the High Court.

The judgement by Didcott J in Mohlomi v Minister of Defence was referred to and criticised, because the provisions of S8 and S2 could shift the focus of the case where administrative action was involved, and raise issues unrelated to the merits. This allows an escape route for judges to give harsh decisions, and one must be aware not to allow escape routes from such difficult decisions.

The Legal Resources Centre suggested that the provisions in the Bill with regard to time periods be scrapped, and instead make use of the 'delay rule' in common law. He added that the common law rule is more flexible, and the time period should depend on the prejudice suffered.

Discussion
Adv de Lange said that in the past, there were different procedures to be followed, and if we apply the common law 'delay rule', things will just pass on and on. Mr C Plasket informed the committee that the 'delay rule' applies whenever a statute does not prescribe

Ms Jana (ANC) enquired how jurisdiction is determined with regard to court regulations, and how should jurisdiction be extended in these cases.
Mr Smith (IFP) suggested that the magistrate's courts be given jurisdiction, as they are more easily accessible than the High Courts.
Mr Mabeta (UDM) asked why they did not explore the option of a tribal tribunal court.
Adv de Lange asked how does one avoid forum hopping.

Mr C Plasket said that the common law expressed in the case of Estate Agents Board v Lek, and the cases that have applied it, would determine jurisdiction. The decision of jurisdiction should fall in the favour of the applicant, and the convenience of the applicant should triumph over the respondent. An issue may appear minor for the onlooker, but serious for the affected individual, therefore they do not think it could be sorted out by giving jurisdiction to magistrates who are not properly equipped.

Adv de Lange said that the Bill provides for the training of magistrates, but even though they are trained, they will require experience to help them develop the necessary skills.

Mr C Plasket said that the courts purport to exercise judicial power rather than administrative power.

Adv de Lange said that it would be a good idea to introduce circuit courts, and desirable to introduce circuit High Courts, as this will assist in creating access to justice. One cannot create access to justice, if no attention is given to the quality of justice involved or given.

Public Protector
The Public Protector, represented by Adv Stoffel Fourie, made a submission on the Administrative Justice Bill. This submission was based on an earlier draft of the bill.

Adv Fourie said that he supports the objectives and principles contained in the Bill, but commented on several issues which has a direct and indirect impact on the powers and operations of the Office of the Public Protector, as well as on the independence of this institution.

With regard to Clause 7, review should not exclude reviews done by the Public Protector. The Public Protector is an alternative to going to court, and their only sanction is to put forward remedies to rectify the matter. There should be alternative powers to a court of law to make just administration accessible, and therefore fully support clause 11(g)(3). The Public Protector does not want to be included in the Advisory Council clause 11(g), as they might end up investigating this council.

Mr Mgidi (ANC) asked if the Public Protector would assist in mediating, especially since they only make recommendations. Should the Public Protector powers not be extended to make recommendations in terms of this Bill.

Adv Fourie said that S182 of the Constitution provides for the Public protector as a typical ombudsman institution, and therefore they cannot institute an enforceable order. There should be alternative structures to address administrative justice, and the courts should be the last resort.

Adv de Lange said that the Public Protector is state organ and now, in terms of this Bill, they will be forced to provide reasons. Has the Public Protector considered the consequences, is it happy with these, especially with regard to confidential matters?

The Public Protector has the discretion, and not an obligation, to hold public enquiries. The reasons for such decisions are reported to the complainant.

Mr Mgidi (ANC) asked if they have legislation regulating how they investigate enquiries?

Adv C Fourie replied that the Public Protector has the discretion to decide on the procedure with regard to any investigation. Presently they have a smooth system because fair procedure is followed. He said that they intend making further submissions on the Bill.

Commission for Gender Equality (CGE)
Ms F Seedat said that this Bill has significant gender implications and the Commission, while welcoming the Bill, considers it important that the Committee engages with the Commission on the gendered implications of the Bill . Amongst other things she proposed that an administrator should be required to provide reasons for administrative actions affecting persons without requests being made. Not only should reasons be provided but they must be given in a manner that is comprehensible to the individual concerned. She rejected the idea that reviews should be done through courts as this has financial implications. Instead, she proposed the adoption of an internal appeal prior to a court appeal.

Discussion
Mr J de Lange (Chairperson, ANC) said he supports the idea of internal review but has reservations. Moreover he disagreed with the suggestion that written reasons must be given each time a decision is made.

Ms Seedat said that going to court had cost implications especially for the rural poor. She explained that the individual will have an internal appeal but to a higher body than the one that made the initial decision.

Mr P Smith (IFP) asked Ms Seedat to indicate whether going for an internal review is mandatory or optional.
Ms Seedat responded that the internal appeal would not be mandatory.

Mr L Landers (ANC) enquired whether Ms Seedat was assuming that the administrators will not give reasons for their actions.
Ms Seedat said there is no requirement that the administrators should do so, so that is the concern of the Commission.

A Committee member asked Ms Seedat to state the Commission's stance on an advisory council.
Ms Seedat said that they are in favour of the advisory council; it will be able to address issues of educating the public.

NADEL
Ms Rikki Minyuku said NADEL welcomes the tabling of the Bill as it will contribute to the building of a transparent and accountable democracy. She submitted that the qualifiers in clause 2(1) a, b and d and elsewhere in the Bill must be removed so that the right to fair and reasonable administrative action must not be limited. NADEL supports the Black Sash Trust in that the grounds of review should be stated as positive views. Ms Minyuku said the High Court is not a suitable forum for review.

Discussion
Adv J de Lange (Chairperson, ANC) pointed out that the approach adopted by NADEL differed from what has been presented that morning. He said if NADEL want to take the thresholds and the definition away, Government would soon grind to a halt. He said he wanted to ascertain whether NADEL has looked at it from the other angle.

Ms Minyuku admitted that some consideration of the issue raised would have to be taken by NADEL. She however advised that training of administration officers would help. She added that she was not proposing that for every action taken, reasons must be given.

Adv J de Lange (Chairperson, ANC) enquired whether the presenter had had an opportunity to look at the SARFU judgement.
Ms Minyuku admitted to not having had a chance to look at the judgement.

Ms P Jana (ANC) disagreed with the submission that Section 4(4) should be dispensed with. She said such an action would raise problems. She felt that "the test is a strict test".

Ms Minyuku said people looking for short cuts must not be encouraged to do so. She stressed that when there is an inquiry, then reasons must be given.

Ms F Chohan-Khota (ANC) asked that the Committee be addressed on the proposal regarding the duty to inform for reasons.

Mr M Masutha addressing the question on the Public Service Commission said to him this continues to function as a regulatory mechanism. He said what remains of Section 11 is regulating the rest of public service.

Afternoon session:
South African Council of Churches
Rev Malcolm Damon presented the written submission made by the SACC, making the following additional comments:
· The SACC is concerned that religious ministers may be performing 'administrative action' according to the definition in section 1(i)(d), 'a natural or juristic person...exercising a public power or performing a public function'. However the committee immediately disagreed and stated that ministers would not fall under the Bill.
· The submission proposes the reinstatement of the definitions of 'rule' and 'standard' and Rev Damon suggested that the regulations should provide for a manual giving information on exactly what these are.

Discussion
Adv de Lange quizzed Rev Damon and Mr Doug Tilton of SACC on their keen support for designated Magistrate Courts in the review process. The Chair felt that they were only more accessible to people because they were nearer and not because they were cheaper than High Courts. Plus Magistrates Courts are problematic as their decisions are not binding, any government department ruled against will simply appeal in the High Court, leading to higher costs. He proposed that a set tariff for administrative justice cases in the High Court would be a better idea.

Mr Tilton explained that the SACC was not necessarily saying that Magistrate Courts were the way to go. What they are welcoming is that there is space in the legislation for accessible options and that the use of the High Court is only seen as an interim measure. What the SACC wants is a thorough consideration of tribunal options and a stronger commitment to set up a review process outside the High Court.

Adv Swart (ACDP) wished to know whether Rev Damon felt the 180 day limit for instituting proceedings in a court was sufficient especially considering levels of education and awareness as well as inaccessibility. Common Law provides no specified period for the bringing of court applications.

Rev Damon accepted that 180 days may be problematic but felt that a time period should be specified.

Adv Schmidt (DP) made reference to the SACC support for the Black Sash proposal that the grounds for review in Section seven be rephrased as positive obligations incumbent on administrators. He felt that was not necessary to promote a culture of just administration and that a person's right to administrative justice would be guaranteed by Section two.

Mr Tilton explained that positive obligations would ensure administrative fairness regardless of whether a negative impact is felt by individuals. This is a small matter but it would help to build a fair administrative culture by setting out what is expected and providing an impetus for officials to act. He thought that the language used throughout the Bill was reminiscent of the interim constitution, language explicitly rejected in the constitutional discussions.

Adv de Lange said that the removal of the threshold of 'adversely affects' in the test for procedural fairness in Section four would have huge practical problems for the running of government. All decisions, good or bad, would have to be accounted for.

Rev Damon felt that if the Bill established a fair administrative culture there would be no need for recourse.

Mr Tilton explained that the SACC was proposing a better balance was needed. Clearly every decision need not be accounted for but all administration action must be shown to be fair and inaction must be recognised as unfair.

Western Cape Provincial Government
Adv Pretorius presented the written submission made by the Western Cape Provincial Government, stressing the need for legislation to 'promote an efficient administration' as demanded in Section 33(3)(c). He made the following additional comments:
· Unlike the submissions made earlier in the day, the Western Cape feels that the current Bill may be too broad in scope. The Western Cape has 73,000 officers and millions of administrative actions and decisions are carried out. The tightening of all thresholds would therefore be supported to allow for provincial government to continue to function without impacting on service delivery. Staff salaries already account for 85% of the provincial budget whilst only 15% is spent on services - there is clearly no need for additional bureaucracy. The test 'adversely affects' on 'any' decision made is too broad and will not increase efficient administration.
· Case 1996(3) SA99 ECD at 116 D1-E1, Gardner versus East London Transitional Council and others, saw Judge Erasmus state that administrative procedures must be fair not only to the holder of the right affected by the administrative action but also to the executive or administration acting in the public interest. [This judgment has since been contradicted by Case 10858/98, High Court of South Africa, Cape of Good Hope Provincial Division; Hayes and Hayes versus the Minister of Housing, Planning and Administration (Western Cape) and three others. Judge van Zyl referred to the Gardner judgement and stated that he could not believe it to be correct. The executive or administration body/person from which/whom an administrative action emanates, is not a person or party whose rights, interests or legitimate expectations may be affected by the outcome of such action.]
· The definition of 'administrative action' in section 1(i) must be narrowed if government is to continue to operate as it does currently.
· A tribunal to review administrative action should be legislated for within the Act and not within the regulations. Adv de Lange pointed out that only an advisory council to advise on the appropriateness of a tribunal was set up in the regulations. If a tribunal was deemed appropriate it would then have to be legislated separately. Adv Pretorius therefore withdrew this objection but requested more information on the advisory council.

Discussion
Adv de Lange thought Sections four and five of the Bill are disjunctive. Whilst Section four demands that administrative action that 'adversely affects rights or interests' must be procedurally fair, Section five sets out what an administrator must do is administrative action 'adversely affects the public'. He asked for Adv Pretorius' view on this.

Adv Pretorius agreed that the sections do not fit together, especially as the definition in section 5(5) suggests that the 'public' are not merely a vague group.

Mr Masutha (ANC) accepted the concern expressed on the broad scope of the Bill but was unsure that the solution was to narrow the scope. He suggested that the concept of rights, interests and expectations might be narrowed to rights. However ultimately only where the Bill extends beyond the Constitution is there room for change.

Adv Pretorius explained that the Western Cape is not against being accountable and accepted that there is a need for a framework on administrative action. However the practical impact of this current Bill would be huge and this must be considered.

Ms Smuts (DP) commented that the Law Commission could run the proposed advisory council within itself and wondered what Adv Pretorius' view on this would be.

Adv de Lange pointed out that if the advisory council is fixed in one place then only staff of that structure could be part of it. If it is independent of other bodies it can be made up of a wider range of administrative talent. The fact that there are so many ideas on the council is why it remains in the regulations.

Adv Pretorius thought expert administrators from within government departments and legal representatives should be included in the council. It should not be part of the Public Service Commission or the Judicial Commission as they already have other duties to perform. An independent, expert council is what is needed.

Ms Camerer (NNP) referred to point six of the submission which states that the wording 'if circumstances justify it' in sections 4(4), 5(4) and 6(4) and 'a procedure which is fair but different' in 4(5) and 6(5) will lead to subjective value judgements. She wondered if Adv Pretorius could provide alternative wording.

Adv Pretorius agreed to provide some exact examples that would avoid debate.

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