Administrative Justice Bill: public hearings

Meeting report

JUSTICE AND CONSTITUTIONAL AFFAIRS PORTFOLIO COMMITTEE & SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
30 November 1999
ADMINISTRATIVE JUSTICE BILL: PUBLIC HEARINGS

Submissions handed out
South African Law Commission
South African Revenue Service
South African Police Services
South African Intelligence Services
Legislative Drafting Project of GTZ (German Development Cooperation)
Black Sash submission
COSATU Submission
South African Catholic Bishop's Conference
Idasa
Law Society of South Africa ( oral submission only)

SUMMARY
The SALC presentation was based on a memorandum on the current Bill and how it
differs from the SALC draft Bill. The main differences are:
· 'Administrative action' - In view of the SARFU judgement and the growing list
of exclusions from the definition, SALC think that the definition should be
simplified and based on the type of function performed, not the person taking
it. So any act performed or decision taken by a natural or juristic person when
exercising a public power would be an administrative action, unless it is a type
of act or decision that is exempted.
· A section two that is based on the interim constitution. SALC believes that
section two should be more closely based on sections 33(1) and (2) of the
constitution.
· The exclusion of 'legitimate expectations' from clause four. In the
discussions that followed the committee seemed less than convinced that
'legitimate expectations' should be rewritten in to the Bill.
· Administrative Review Council - SALC believe that this should be in the Bill
itself and not in the regulations. It will play a crucial role in monitoring the
Bill and seeing if the correct balance has been found between a person's rights
and an administrator's burden.

SARS's commitment to reasonable and procedurally fair administrative action was
stressed but they believe the current Bill will have unintended consequences for
efficient and effective administration. The definition of administrative action
is too broad and the supposed let out clauses are unhelpful as they fail to
provide any guidelines.

South African Police Services would prefer that law enforcement powers be
specifically excluded from the Bill. This should include the issuing of warrants
for arrest as well as other policing.

Law Society of South Africa suggested that the let out clauses of 4(4) and 5(4)
be amended to read: "If exceptional circumstances justify it"

The South African Intelligence Services (SAIS) noted that their difficulty with
the Bill was directly related to the way in which Sections 4, 5, and 11 of the
Administrative Justice Bill was going to affect the operation of their
organisation.
They proposed that the exemptions provided for in sections 4 and 5 of the Bill
should be deleted (as they were considered too vague) and replaced with a
chapter on exemptions on certain categories of information as in S36 of the Open
Democracy Bill.

The Legislative Drafting Project of GTZ (German Development Cooperation) were
positive about the Bill. It had good structure but needed minor amendments. They
recommended the German approach incorporating internal mechanisms and tribunals
for dealing with complaints and disputes with the courts as a last resort, in
the interests of speedy and efficient resolution of disputes. The Bill could not
be expected to deal with every single aspect of administrative action. It should
only deal with the framework and minimum requirements of administrative action
while the detailed regulations had to be instituted sectorally. In terms of the
"exemption provisions" various subsections in Sections 4,5 and 6 were worded too
broadly, allowing too much discretion for the public servant/administrator.

Black Sash submitted that positive duties should be placed on administrators to
act procedurally fair. They also argued that the inclusion of not only rights
but interests as well is necessary as Black Sash clients largely have an
interest rather than a right in certain matters.

Idasa proposed that the definition of administrative action be altered and that
reasons for administrative action are given without request.

COSATU submitted that a forum other than the High Court should be created for
review of administrative action. Furthermore that an audit be conducted on
existing legislation to ensure that they meet the basic standards set out in the
Bill.

The South African Catholic Bishop's Conference echoed the submission of Black
Sash that some kind of positive duty should be placed on administrators to act
procedurally fair.

MINUTES
South African Law Commission
Mr J Gauntlett (Commissioner: South African Law Commission and Chairperson:
Project on Administrative Justice), Mr A Breitenbach and Ms Cora Hoexter
presented a memorandum on the current Bill and how it differs from the draft
Bill SALC produced.

Questions
The questions began with a lengthy discussion on how section 33(1) was to be
interpreted. The section read:

'Everyone has the right to administrative action that is lawful, reasonable and
procedurally fair.'

Adv de Lange asked how the SALC interpreted section 33(1) of the constitution,
how this was different form the interim constitution and section 2 of the Bill
and explain how 33(1) could include rights, interest and legitimate
expectations.

SALC accepts that section 33(1) is only qualified by 'administrative action'.
This means that a person has the right to lawful, reasonable and procedurally
fair administrative action regardless of how it affects them. However it will
cause administrative chaos if all administrative actions are to be justified,
especially ones that have no adverse effect. Thus SALC focused on criteria that
should be complied with, to make administrative action procedurally fair and so
on. The inclusion of 'legitimate expectations' and 'interests' is because they
are well established in common law. The decision to include them was also
affected by their inclusion in the interim constitution and our desire to ensure
the new constitution did not narrow a person's entitlements.

Ms Smuts (DP) spoke of the duty imposed on the state in section 33(3)(b) to give
effect to the rights of 33(1) and (2), namely the right to lawful, reasonable
and procedurally fair administrative action and written reasons for
administrative actions that adversely affect a person's rights. These are rights
that 'everyone' has and are rights entrenched by the recent SARFU judgement.
Considering this she demanded justification for how sections 4 and 5 especially
had been composed. Everyone has the right to procedurally fair administrative
action yet section 4 only guarantees it where administrative actions have
adversely affected your rights. SALC is arguing for the addition of 'legitimate
expectations' to section 4 but this would still leave the clause very narrow.
The constitution remains very clear, everyone has the right to administrative
action that is procedurally fair, this is without limit and this is what must be
captured in the Bill.

Mr Breitenbach explained that a broadly stated right without qualifiers
established in the common law would lead to huge administration problems. He
then referred Ms Smuts to paragraph 15 of the memo which argues why a person has
a right to procedurally fair administrative action if they have a legitimate
expectation.

Adv de Lange asked Mr Breitenbach how the use of qualifiers to constitutional
rights fitted with the limitation clause (section 36 of the constitution).

Mr Breitenbach suggested that although effect must be given to the
constitutional right, the right would only arise if it was adversely affected.
Thus he felt that the limitation clause was not needed as the limitations could
be contained within the Bill.

Adv de Lange asked whether Mr Breitenbach was saying the limitations clause was
invalid with regards to the rights of section 33.

Mr Breitenbach replied that this statute is not a limitation statute. Provisions
have been made for the exemptions as necessary. The addition of 'legitimate
expectations' would simply provide a limitation similar to 'adversely affects'.
This limitations would still fit with the constitution because a right only
arises if your legitimate expectation is affected.

Ms Jana (ANC) asked whether SALC thought the Bill struck a balance between a
person's right to administrative justice and the burden on administrators.

SALC thinks that the constitutional right given in section 33 has been limited.
Clause two of the draft proposed by the SALC had simple restated sections 33(1)
and (2). The draft also included an Administrative Review Council and this would
have played a crucial role in checking on the possible heavy burden placed on
administrators.

Mr Smith (IFP) wished to know how a municipal council could identify its
legislative functions which are excluded form the definition of administrative
action.

SALC explained that the constitutional court had declared the making and passing
of by-laws a legislative function.

Mr Smith (IFP) asked exactly how SALC thought 'administrative action' should be
defined especially with regard to the inclusion and exclusion of state
apparatus.

SALC thinks that the SARFU judgement should help to guide a definition that
bases 'administrative action' on the function being performed and not the body
carrying it out. This would avoid the blanket inclusions or exclusion of various
bodies.

Adv de Lange wished to know whether SALC considered that the grounds of review
went beyond the Common Law. He felt that section 7(1)(g), on what could be
considered unreasonable action, would actually affect policy making.

SALC disagreed that the grounds of review went beyond the common law, instead
they are the result of the SALC trying to de-code the judicial speak of the
courts. As administrative action must be justifiable by the reason given for it
the Bill focuses on as reasoning process set out in section 7(1)(e), (f) and (g)
and this explains why (g) must test the 'reasonable' nature of an action.

Adv de Lange felt that this went against established processes where a court
must have evidence of an action's reason and effect. The standard of
'reasonableness' is a constitutional standard and sub-section (g) should not try
to capture it in a different way. Further sub-section (g) is so wide it only
serves to increase uncertainty, every administrative action could have a
possible alternative so how could you perform any action with certainty it is
reasonable?

SALC thought that by looking at the result of an action it would be very clear
whether it was reasonable or not. Challenge would only occur if the result was
clearly unreasonable. Often policy must be tough if it is to fulfil long term
goals but courts will not decide if this is right or wrong merely if it is
rational, we must have faith in the courts.

Adv de Lange asked why magistrates courts would be more accessible than the High
Court to the public. Considering that their decisions are not binding he thought
that use of the High Court and setting a 'tariff' for administrative justice
cases might be better.

SALC explained that the use of designated magistrates courts was merely an
option worth investigating.

Adv de Lange wished to know why the definition of 'administrative action'
'includes' certain things that remain valid because section 3 protect
established practices.

SALC explained that there are entitlements not covered by this Act but that will
have bearing on administrative decisions. Section 3 is needed to ensure that
this Act is not seen above all others. [SALC did not seem to explain why various
areas were included under both the definition of administrative action and
section 3.]

Adv de Lange asked what 'freedoms', recognised or conferred by other laws might
be. [Established freedoms and rights are protected by section 3.]

SALC explained that the word 'freedoms' derived from several important cases and
was used to recognise the freedom to do things that are not prohibited by laws.
The word could be removed from section 3 as it is not crucial.

Adv de Lange asked where the definition of 'qualified litigant' came from.
Although it reflects the definition in section 38 of the constitution the link
to the Bill of Rights has been left out.

SALC explained that as the Bill is trying to give effect to section 33 of the
constitution there is an automatic link to the Bill of Rights.

Adv de Lange wished to know how sections four and five could be read together.
It was unclear exactly what was expected by section five.

SALC explained that the intention was that five should flow on from four. Five
must give effect to the expectations of procedural fairness set out in four if
an administrative action adversely affects 'the public'. To do this fully either
a public inquiry or a notice and comment procedure will be set up.

Adv de Lange thought that five remained unclear and further discussion on this
would be had at a later date.

Ms Smuts (DP) spoke of the exclusion of section 84(2)(e) functions from the
definition of administrative action. Section 84(2)(e) is on the making of
appointments that the constitution or legislation requires the President to
make, other than as head of the national executive. She wished to know exactly
what these would be and why they were excluded?

SALC explained that the SARFU judgement saw these functions as
non-administrative. It is not immediately apparent what these functions would be
but the constitutional court could decide.

(Prof Haysom of SARS later suggested that the President acts as both the head of
the national executive and as head of state. As Head of the national executive
the President works and takes decisions with Cabinet. As head of state the
President is a symbolic figure who works on behalf of the people. Many of the
functions carried out as head of state are like monarchical prerogatives and the
President must act on the advice of other bodies, unable to affect the decision
himself/herself).

South African Revenue Service (SARS)
Prof F Haysom, a contracted legal advisor to SARS, presented the SARS written
submission to the committee.

Questions
Mr Masutha wished to know what SARS believed legitimate expectations to be and
why they thought the inclusion of this wording would be problematic.

On the subject of 'legitimate expectations' Mr Haysom thought that the explicit
exclusion of this wording from the Constitution, whilst it had been in the
interim Constitution, suggested the omission was intentional. Further as
legitimate expectation principles are established in common law and accepted as
part of a person's rights, whether the wording is or is not included would make
little difference. Procedural fairness is expected and demanded either way. This
being the case it would be best to omit the wording and thus prevent the need to
strictly define a legitimate expectation with regard to administrative justice.

Ms Smuts (DP) spoke of the battle to place the word 'justifiable' in the right
to administrative action in the interim Constitution. The final Constitution
gives the lesser right to 'reasonable' action but this still means all merits of
all administration actions must be explicitly considered. Instead two categories
of unreasonable action are set out in the ground for review, section 7(1)(g).

Prof Haysom accepted the point Ms Smuts was making but thought that 'reasonable'
action was problematic to define. It should lead to the review of actions but an
investigation in to the merits of the decision maker and their decision making
would only be part of an appeal process.

Ms Smuts (DP) referred to the possibility of government decision slowing down
because of the burden of having to review why a decision was being made.
Considering that government administration is already at a halt, administrative
justice will at least stop those actions taken from being arbitrary. She felt
that it was too easily assumed that it would be very difficult for
administrators to apply their minds to the decisions they take.

Prof Haysom stated that SARS wanted efficiency and fairness as much as the
public but thought that this should be possible without unnecessary procedures.
An Act that is without guidelines, is too broad, had let outs that are too big,
had an unwieldy framework and is unclear to the administrator will serve no good
purpose. He felt that the Act must be more targeted and that it must indicate
exactly where and how it applies.

Mr Jeffery (ANC) wished to know whether SARS thought the let out clauses of
4(4), 5(4) and 6(4) were adequate.

Prof Haysom thought that the let out clauses served no purpose because they
offer no guidance. It is unclear whether they will be too narrow or too generous
because they are so broadly phrased. Whether they work will not be decided until
things reach the courts. They are also problematic because they do not deal with
the possibility of two litigation channels.

Mr Jeffery (ANC) asked for a comment on whether the time limits for setting
legal proceedings in action were sufficient.

Prof Haysom said that SARS had no real view on this but that 180 days did not
seem unreasonable.

Ms Jana (ANC) asked for a comment on whether SARS thought their were
inconsistencies in the Bill and whether these gave grounds for concern.

Prof Haysom thought that there were no obvious inconsistencies that gave SARS
ground for concern. However he felt that the Bill's intentions were generally
inconsistent because whilst income tax procedures would easily conform to fair
administrative action a tribunal would almost be needed for before any procedure
could begin.

Adv de Lange asked for a comment on the possible use of magistrate courts in
review procedures.

Prof Haysom said that SARS promoted internal remedies above all else because
more specialised knowledge would be available. On this basis Magistrates Courts
would be no better equipped than High Courts. However if Magistrates Courts were
more accessible than High Courts this would be a reason for their use but only
once internal review mechanisms had been exhausted.

Adv de Lange wished for a comment on a suggestion made on Friday by Mr Budlender
(Director General: Department of Land Affairs); the threshold of 'adversely
affects' in sections 4, 5 and 6 should be raised to 'materially adversely
affects'. This goes against Ms Smuts' argument that the threshold should
actually be lowered.

Prof Haysom definitely supported this with regard to section five -
administrative action adversely affecting the public. This is such a broad
clause, affecting such a huge group of people, that it needs to be narrowed. For
example, as the clause stands SABC would have to provide every member of the
public with the reason why it was changing the time slot for 'Friends' from
Friday at 9pm to Thursday at 7pm. Administrative justice must be effective but
also must serve a purpose, this would be more likely if thresholds for
approaching courts were increased.

Adv de Lange referred to the suggestion by Mr Breitenbach of SALC that section
33(3) of the constitution was elevated above the limitation clause of section
36.

Prof Haysom thought that section 36 must apply before stressing the importance
of balancing administrative justice with effective administration.

Prof Haysom made the final comment that SARS do want public administration to be
fair but do not desire unintended consequences for the administrator that do not
increase administrative justice either.

South African Police Services
Mr Antony Gotz said that SAPS is concerned about the scope and application of
the Bill in respect of law enforcement powers. Although the Minister of Justice
may determine certain exemptions, the South African Police Service would prefer
that powers relating to law enforcement be specifically excluded from the Bill.
This should include the issuing of warrants for arrest as well as other policing
powers. If prior notification and an absolute application of the audi alteram
partem rule is required in respect of all administrative decisions, this would
hamper police work. The example of the recent Camps Bay bombing was cited where
prior notice of the decision to cordon off the crime scene could not have been
given. The issuing of warrants of arrest and directions for interception and
monitoring involve the exercising of administrative discretion, even though
exercised by judicial officers. SAPS urgently appealed that the committee ensure
that the Bill does not bog down law enforcement.

The ensuing questions were not recorded.

Law Society of South Africa
The Law Society of South Africa, represented by Mr Arno Botha, said that this
Bill goes a considerable way towards meeting the constitutional imperatives of
S33 of the Constitution.

They suggested that clauses 4(4) and 5(4) be amended to read: "If exceptional
circumstances justify it, an administrator may depart from the requirements
referred to in subclause 2 [subsections (1) to (3)], to the extent necessary."
Clauses 4,5 and 6 contain identical provisions, which allow an administrator to
deviate from the provisions contained in such clauses "if circumstances justify
it". In departing from the provisions in clauses 4 and 6, the Minister is
subject to an additional restraint. The Minister may only allow an administrator
to depart from the provisions in clauses 4 and 6 in exceptional circumstances,
while an administrator may depart from such provisions whenever "circumstances
justify it". Limiting a departure from the mandatory provisions of the relevant
clauses to "exceptional circumstances" is also in accordance with the original
proposals by the Law Commission.

They asserted that Clause 7(1)(g)(ii) does not make any sense, as important
words that must convey the meaning have been left out of this clause. It is
submitted that this clause should read: "The availability of less restrictive
means to achieve the purpose for which the action was taken".

They believe that Clause 8(1) and 10 could potentially infringe Section 34 of
the Constitution.

He commented further on the let out clauses which should be the same. The
Minister only takes such decisions after consultation with the various bodies.
The administrator takes decisions on his/her own. These should be the same

He concluded by saying that the SARFU decision should be the guiding light. The
Law Society of South Africa will provide a written submission at a later stage.

The ensuing questions were not recorded.

South African Intelligence Services
The South African Intelligence Services (SAIS) expressed dissatisfaction with
certain sections of the Administrative Justice Bill:
Section 4
Sections 4(2) and (3) state that the person against whom action will be taken
has to be informed of such impending action before the action is taken and, such
person must also be given the opportunity to respond to the proposed action
before the action is taken. From an intelligence and security perspective this
could be very problematic. For example, the Interception and Monitoring
Prohibition Act empowered the security services (with the permission of a judge)
to monitor communications without the knowledge of the affected person.
Further, the Intelligence Services Act provides for the entering and searching
of premises (with the permission of a judge) with no notice being given to the
party who is the object of the operation.

The purpose of this policy of 'no notice' was to deal effectively with serious
offences which could not be properly investigated in another manner. Giving
notice to the party would clearly defeat the purpose of the operation.

Section 4(4) states that an administrator may depart from the requirements for
procedural fairness, to the extent necessary, and if circumstances justify it.
They were concerned as to how the phrase 'if circumstances justify it' would be
interpreted by the courts and noted specifically that 'justifiable' would have a
different meaning for someone who was involved in security and intelligence as
opposed to someone who was not. Further, 'to the extent necessary' was described
as too harsh a standard to determine whether something was justifiable or not.

Section 4(5) allows an administrator to deviate from the requirements of
procedural fairness as set out in the Bill (if empowered by any other law to use
a different procedure). The only requirement is that the other procedure must be
fair. To demonstrate the difficulty they were experiencing in this regard they
used the following example:
The Intelligence Services Act allows the Director-General to take steps to
ensure that certain information be protected from unauthorised disclosure. Thus,
this Act provides for an alternate procedure (of non-disclosure). They were
unsure whether this provision would be adequate to justify non-compliance with
the Administrative Justice Bill on the grounds that it was an alternate
procedure.

Section 4(6) allows the Minister to make certain exemptions. They asked how the
Minister would practically implement this section. Would there be individual
notices in the Government Gazette for each impending administrative action? Such
a process would be impractical in the context of trans-national crime as it had
the effect of exposing the investigation which was about to take place.

Adv De Lange (co-chair) interjected at this time to indicate that the exemptions
as envisaged in S4(6)(a) would clearly not have to take place on a case to case
basis. He explained that the Minister would exclude certain classes of things.
[For example, if they wanted the identity of their agents protected from
non-disclosure then the Minister may provide that 'identity' is an exemption.
The effect of this would be that the identity of all of their agents, in all
cases, would be protected from disclosure as it would be a ground for
exemption.]

The presenter noted that they were also concerned about the discretionary power
granted to the Minister in Section 4(6), specifically in relation to the fact
that this power could easily be exercised in a manner that was not favourable to
the SAIS.

Section 5
This section makes provision for public hearings where the rights of the public
are adversely affected. The 'public' as envisaged in this section includes
groups of persons who are involved in organised crime syndicates. The SAIS noted
that they operated on the principle that people who are not involved in an
operation should not know about it . This portion of the Bill could result in
'covers [being] blown'.

This section also provides that an administrator may depart from the
requirements of the section if 'circumstances justify it'. In this regard the
same argument used under S4 applies as it is not clear what the criteria for
justification of deviation from the requirements of the provision is.

Section 11
This empowers the Minister to make certain regulations. In this regard they
wondered whether the Minister, in making these regulations, would follow the
normal pattern of legislation (in terms of consultation with administrators) and
whether the regulations would grant practical exemptions to the security
services.

Consequently they recommended that :
- That an exemption of the security services as provided for in the Open
Democracy Bill should be introduced into this Bill.
- A balance must be drawn between secrecy and openness of the State.
- The exemptions provided for in sections 4 and 5 of the Bill should be deleted
and replaced with a chapter on exemptions on certain categories of information
as in S36 of the Open Democracy Bill.

Discussion
The Chair, Adv de Lange (ANC), asked how other countries approached this issue?

The SAIS replied that no studies had been done but that their proposal for
exemption was based on the Open Democracy Bill and that this Bill had allowed
the exemption after thorough consideration of international law. In order to
satisfy the committee they indicated that they would look at the international
approach.

Adv de Lange also commented that, in expressing their fears about the various
sections, they seemed to forget that all legislation was subject to the
Constitution, and its limitation clause. Thus, even if specific exemptions are
not listed in the Bill, if, after application of the limitation clause on
someone's right to get information from the SAIS, it appears that that persons
right to information may in fact be constitutionally limited, then the
non-disclosure of information by the SAIS to that person is justified as an
exemption.

They replied that they were aware of the operation of the limitation clause, but
if the exemptions were not specifically included in the Act, they would have to
go to the courts to have the reasonableness of their request for an exemption
weighed.

Mr Mgidi (ANC) referred to the SAIS statement that a balance had to be drawn
between transparency and secrecy (as too much openness can undermine the
security of the State too much secrecy can lead to abuse of power). He asked how
this concept could be incorporated into the Bill in view of their recommendation
of total exemption?

They replied that this could be accomplished through limitations. Thus, if
someone wanted to obtain information from Intelligence Services then that person
could argue that the Intelligence Services exemption should be limited in terms
of the Constitution. They noted that in terms of the Interception and Monitoring
Prohibition Act, their Director was in certain circumstances permitted to
deviate from the rules of natural justice. The point was that security
considerations had to be taken into account.

Mr Masutha (ANC) asked if they had a detailed alternate procedure to the
procedure set out in S4 of the Bill.

The SAIS replied that there was an alternate procedure. Where reasons were
given, it was done to the extent that national security was not violated. In
conclusion they noted that while the Bill may be constitutional, this did not
necessarily mean that the procedure envisaged in the Bill was fair.

Legislative Drafting Project of GTZ (German Development Cooperation)
Mr Rainer Pfaff, an advisor from the Legislative Drafting Project of GTZ (German
Development Cooperation) presented their submission.

In terms of the exemptions contained in Sections 4, 5 and 6, he had certain
concerns. For example section 4(2):
" a fair procedure depends on the circumstances of each case, but includes at
least -
(a) adequate notice of the nature and purpose of the proposed administrative
action;
(b) a reasonable opportunity to make representation;
(d) adequate notice of any right to appeal and revue."

The phrase "a fair procedure depends on the circumstances of each case" opens
the possibility of adapting the procedure to the need of an individual case. In
addition, "adequate" and "reasonable" were so broad that they left too much room
for interpretation.

Section 4(4) states "If circumstances justify it, an administrator may depart
from the requirements referred to in subsection (2), to the extent necessary".
This was not consistent with the limited power of the Minister in section 4(6).
The Bill was already very flexible and Sections 4, 5 and 6 of the Bill were
giving it a threshold which was too wide.

It is not meaningful to establish the duty to inform the person of the right to
appeal and review in section 4(2)(d), but not of the right to request reasons.
The right of a person to request reasons was of great importance. People had to
be told of their rights in this regard. If they were not told then they were
being denied access to justice. Information was the only way to enable people to
know what they could and could not do, especially in respect of people who were
not legally qualified. Mr Pfaff proposed that a clause be included for this
purpose. Such a clause could be along the lines of, "adequate information of the
right to request reasons has to be provided if applicable in terms of section
6," and could be included as 4(2)(e).

Exhaustion of domestic remedies was also very important. Despite suggestions by
some that this was part of the common law, he suggested that it be spelt out.
Cases then had to be directed to the appropriate tribunals. Only cases, which
could not be satisfactorily solved otherwise, had to be left to the courts.

He referred to the regulatory powers of the Minister in Section 11 of the Bill,
and spoke in particular about the right of internal complaint mechanisms and
internal and external administrative remedies. This was of the greatest
importance. It was even more important than the right to have a judicial review.
Most people cannot afford to go to the courts because it is too expensive,
cumbersome and time consuming. A workable system had to be in place, which had a
mechanism to deal with complaints and appeals. He felt that the "may" in Section
11(1) had to be changed to "must". In addition a time schedule had to be given
to the Minister so that he had a clear mandate on what has to be done.

In South Africa the situation regarding internal remedies was that it was very
scattered in terms of implementation and application. In the various sectors
there were different ways of dealing with this. There is a need to give the
Minister or whomever is responsible, a clear mandate to look at setting up
minimum requirements in respect of internal remedies, as this is the most
important mechanism to ensure that there is a fair administration.

He was surprised that other presenters had found the Bill to be too narrow to be
able to adapt to specific needs with regard to, for example, revenue issues or
police. The Bill was in fact open enough and it enabled the public servant and
the official to deal with all the different cases to be decided upon by this
person. If anything it was actually too broad.

The definition of administrative action had to be included. In Germany there was
a big jurisdictional problem of what constituted internal and external action.
Their definition of administrative act was, inter alia, that it had to have a
direct external effect. The example of a public servant applying for leave was
used as explanation. The public servant had the right to be granted leave.
Although this was within public administration, it has an external impact, since
it impacts on the rights of the person. The fundamental question was then
whether or not one's rights were affected.

Whilst it needed some amendments, the Bill's structure was good. It would become
the bible of all public servants. Nevertheless the Bill could not deal with
every possible scenario in every single sector. Thus other policies, regulations
or legislation had to deal further with the more specific areas for example
revenue and police in relation to administrative action. The Bill had to cover
the overall structure in a way that enables people, who were interested in
knowing their rights, to apply them.

Discussion
The Co-Chairperson, Mr J De Lange (ANC) said that no audit had been done to
determine what other Bills/Acts could be affected. The problem was that it was
no good saying that one should leave this to other legislation when the problem
of the definition of administrative action (any act performed or decision taken)
was that where other legislation dealt with these issues, the Bill was a later
piece of legislation and it would take precedence. Thus somewhere in the Bill it
had to be stated that, for example, domestic remedies had to be exhausted and
the specific supplementary legislation had to be expressly pointed out.

Mr Pfaff said that other legislation should be set up to supplement the Bill and
had to have mechanisms which provided for internal remedies. A clause in the
Bill setting out this intention should be included.

Mr De Lange doubted whether the exemptions were as wide as Mr Pfaff made them
out to be. In section 4(4) "if the circumstances justify" were strong words and
with regard to "to the extent necessary" - in South African law "necessary" was
the highest test one could get.

Mr Pfaff remained adamant that the notions of "if the circumstances justify" and
"to the extent necessary" were very broad as were "reasonable" and "adequate"
used in Section 4. They might even be unconstitutional on the basis that they
are too vague.

Ms P Jana (ANC) wanted to know, in relation to the provision of information
concerning the right to request reasons, whether this was proposed on the
assumption that reasons would not automatically be given but would only be given
on request.

Mr Pfaff said that if reasons were already given then it was fine. In limited
cases the public official/administrator would give those reasons without being
asked for them, to prevent disputes from arising.

Ms F Chohan Khotha (ANC) wanted clarity on whether it was true that according to
German Law, subjective rights had to be affected before the whole administrative
justice process "kicks in". This was very interesting to her since she had been
reading what Professor Mureinik had to say about the "deprivation theory". Was
this the classic deprivation theory?

Mr Pfaff said that what Ms Chohan Khotha was referring to was the idea of
administrative justice which just had to deal with where a right was limited,
then the citizen had the right to challenge this. The issue of administrative
justice and subjective rights in Germany was broader in that people were
entitled to have certain things done, for example, the right to having a pension
or a liquor licence granted.

A member said that the wideness of the exemptions is due to the problem of the
wide spectrum of administrative decisions and due to providing some kind of
space for your minor petty decisions to be taken without having to give
explanation. He noted that in a previous submission, Professor Haysom had given
an indication of the number of decisions SARS had been taking. In Germany, how
was this problem overcome? How are administrative decisions defined? Are they
put into different categories and how do you distinguish between those which are
important and affect people's rights versus those that are every day decisions
which would start disrupting government if lengthy procedures had to be
followed?

Mr Pfaff said that there were not different categories. Every individual case
gave direction in terms of what had and had not to be done. In respect of
reasons, in many situations, they were given by an administrator making ticks on
a pre-printed form. If the administrative decision was about a highway to be
built or a power plant in the neighborhood this was obviously a more complicated
and more important decision which required a lengthier outline in respect of the
reasons and the procedure to be followed. In general there was no
categorisation.

In a follow-up question, the member referred to Mr Pfaff using the words "more
complicated" in his reply and asked who decided this?

Mr Pfaff said that in Germany this was codified already. They had one general
law dealing with administrative procedure. For every sector of administration
there were specific laws e.g. governing police procedure, revenue, the
construction of roads and highways, the erection of power plants.

It was pointed out that according to the Constitution, the Bill had to provide
for the review of administrative action by a court or tribunal. In the case of
the Bill there is provision for review by a court. It was not clear why Mr Pfaff
seemed to be saying that the Constitution required a tribunal when the
Constitution suggested either a court or tribunal

Mr Pfaff said that he did not want to pretend to be an expert on what the
Constitution required. Ninety per cent of the cases dealt with by public
administration bodies would involve situations where reasons were given in the
form of the administrator ticking certain reasons on a pre-printed form or
writing an explanation of two lines. Internal mechanisms in the form of
inexpensive internal tribunals would be preferred for the purpose of dealing
with complaints. People rely on this - so that their cases can be sorted out on
this level since they do not want to go to the courts as this was an expensive
procedure. The courts had to be utilised as a last resort. If you rely on the
courts to uphold your administration in the public service, it will not work.

Mr K Durr (ACDP, NCOP Western Cape) requested German statistics on the incidence
of complaints since the codification of the German legislation and if possible
the predominant character of the kind of complaints in Germany. He also asked if
Germany had had to amend its legislation yet because of problems encountered by
the civil service, and if so what was the nature of these amendments.

Mr Pfaff said that in the last few years there had been discussion on the issue
of public hearings causing big delays. He gave the example of public hearings
being held to decide on the building of a big highway. Public hearings were a
cumbersome and complicated procedure and it often happened that the courts
squashed the decisions taken because procedures were not followed. This
continuing discussion is focusing on how to amend and simplify these procedures.
This is the best example of discussion around proposed amendments in the last
couple of years.

Black Sash
Ms P Martin said the Black Sash interest "is founded on the lived experiences of
its clients, many of whom are extremely poor, exhibit low levels of literacy and
rely, to a large extent, on state administered social assistance for their daily
survival. This means that they depend for their daily existence on the
efficiency and fairness of the state bureaucracy".

She stated that the Bill is an answer to the problems encountered by their
clients and is much welcomed by the Black Sash. However, the Bill fails to cover
all the objectives that were foreseen by the Constitution. Ms Martin said that
the Bill must put a duty on the state to comply, it must be understandable to
the ordinary man and the focus must be on preventing administrative injustice.

Ms P Martin suggested that the drafters engage in a shift of emphasis away from
negative to positive formulations of duties or obligations. She went on to say
that the negative formulation results in positive duties being considered after
the fact and not prior to the infringement of a right. Generally a duty should
be placed on administrators to act procedurally fair.

Ms P Martin also argued that the inclusion of `interest' is very as Black Sash
clients largely have an interest rather than a right in certain matters. Should
`interests' be excluded many Black Sash clients would not have a remedy. Ms
Martin substantiated this argument with the use of the example of a grant
application. She said that people make grant applications based on an interest
and then it is up to the discretion of the administrator to decide to approve
the grant or not. Should such an application be dismissed that person would have
no remedy.

Discussion
With regard to their insistence that the Bill should cover not only rights but
interests as well, Adv M Masutha (ANC) pointed out that Ms Martin that a grant
applicant has a right rather than an interest in the sense that the Minister
does not have an option whether or not to give that right. He said it is only
those who meet the requirements that must apply.

Ms Martin responded that she understands the point made that when one qualifies
for a grant, indeed one has a right. The difficulty arises when a person must
show that he or she qualifies. She defended their request saying that the
examples she was giving came from extensive practice and needed attention which
the Bill must cover.

Mr P Smith (IFP) said he could not see the distinction between interests and
rights.

Adv. J de Lange (Chairperson, ANC) reminded him that under apartheid, Blacks
were merely objects and never subjects and they had no rights at all. He
therefore disagreed with Ms Martin's view that until a person exercises a right,
s/he does not have it. He further pointed out that throughout her presentation
Ms Martin ignored the limitations clause. He said that this gives an exaggerated
status to Section 33 (3).

Ms Martin acknowledged that the rights are subject to limitation, but added that
one should not rely on the limitation clause but rather should have the rights
included in the Bill.

Idasa
Mr R Calland and Mr T Masuku of the Political Information & Monitoring Service
at Idasa presented. Mr Calland said the Constitutional Court's endeavors to
define administrative action in the SARFU judgement provide a useful guidance.
He nonetheless proposed that the definition be altered. He advised that common
sense is what should bind the Act together. On the section dealing with reasons
Mr Calland proposed that if a person applies for a grant, and his or her
identity and particulars are known, there is no reason why he or she should not
be supplied with reasons forthwith. He attacked the proposed use of the High
Court as unsuitable and undesirable, as the High Court is expensive,
inaccessible and slow. Mr Masuku advocated that the Bill should set minimum
standards of what procedural fair administrative action is. He said his concern
was that every action taken in relation to the Bill should be fair.

Discussion
Regarding Idasa's suggestion that the definition of administrative action in the
Bill be changed, Mr M Masutha (ANC) asked for suggestions on how to introduce
simplicity and clarity in the definition.

Mr R Calland said that there are clearly problems with the definition of
administrative action. The difficulty is that it is easy to think about
administrative action, but rather difficult to describe. He proposed the
inclusion of a general definition such as the definition in the Law Commission's
draft, plus attaching a schedule that gives common sense advice.

Ms R Taljaard (DP) asked what Idasa's views are on the use of an administrative
review council.

Mr R Calland responded that Idasa had not looked at the question of the use of a
council.

Mr J De Lange (ANC) asked whether there is a difference between application and
implementation of legislation, as these terms are used interchangeably in the
submission.

Mr R Calland said that in the Idasa submission they are largely dealing with
application rather than implementation. He said the confusion largely arose as
they had been "clumsy" in using 'implementation' rather than "application' in
certain instances.

COSATU
COSATU submitted that a forum other than the High Court should be created for
review of administrative action. Furthermore that an audit be conducted on
existing legislation to ensure that they meet the basic standards set out in the
Bill. See the COSATU submission presented by Mr N Coleman and Mr O Bodibe for
full particulars.

Discussion
Ms F Chohan Khota (ANC) asked what is the COSATU view on the use of Magistrates'
courts as a forum for review of administrative action.

Mr O Bodibe said that the High Court is expensive, inaccessible to ordinary
people and the procedure is highly adversarial. This makes it undesirable as a
forum of first instance. He went on to propose that the magistrates' courts
would be a more desirable forum as it would be within reach of the people and
less expensive.

Mr J De Lange (ANC) pointed out that the introduction of the magistrates' court
does not create more access but rather "another layer of money" as magistrates'
courts do not create precedence so the state, the rich and the powerful would in
any case take the matter to the High Court. This would create an extra financial
burden for the complainant.

Mr O Bodibe responded that he understands the complications raised, but added
that it is important that another more accessible and less expensive forum must
be put in place to give effect to the right.

On the COSATU submission that there should be an audit to ensure that basic
standards set in the Bill are met in existing legislation, Ms D Smuts (DP) said
the Law Commission would be a better forum for such an audit.

In response Mr O Bodibe said COSATU recommends that the Minister of Justice
should kick-start this process, but is not firm on who should perform the audit
done. However such an audit should be done.

Mr J Jeffery wanted to know whether there would be indefinite exemptions on the
time limits.

Mr Bodibe said that they had not looked at the Bill from the perspective of time
limits.

South African Catholic Bishops Conference
Mr M Pothier said that in order to give effect to the right of procedural
fairness as provided for in the Constitution, it is important that some kind of
positive duty be placed on administrators to act procedurally fair. He went on
to say that administrators would then consider the consequences of their actions
before they act (see submission for fuller details).

Due to time constraints, no questions were put to Mr Pothier and the meeting was
adjourned.