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JUSTICE AND CONSTITUTIONAL AFFAIRS PORTFOLIO COMMITTEE; SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
7 December 1999
DELIBERATIONS ON ADMINISTRATIVE JUSTICE BILL [B56-99]
Documents handed out
Administrative Justice Bill with optional amendments included (AJU63)
Summary of Submissions (AJU62)
German Bill on Administrative Justice - summary by Mr Pfaff (AJU 36a)
A fresh draft of the Bill with various options included was presented to the Committee. The options were based on suggestions raised by public submissions. Six optional definitions for administrative action were included for debate, some with Australian and German influence. The impact of the court decisions of Fedsure and SARFU relating to administrative action were incorporated in the debate. The inclusion of "organ of state" in the definition of "administrator" demonstrated the need to narrow the definition somehow. The definitions of "court", "decision", "executing authority" ,"public", and "qualified litigant" were all discussed with various options being tabled. The right to administrative justice also had various optional definitions, which were looked at.
MINUTES ( Morning session)
The chairperson Adv de Lange (ANC) said that Mr J Labuschagne of the Department had been working on a fresh draft of the Bill which included various amendments to the Administrative Justice Bill (as raised by public submissions). This included varied definitions regarding "administrative action" taken from the Law Commission (SALC) as well as the Australian and German jurisdictions. This Chair said that this draft would be useful for members in that they had a range of options already put together. The members simply had to consider which was most favorable to use.
Mr K Durr (ACDP) was concerned that very major role players, most directly affected by this legislation, namely the Department of Public Administration and the Public Service Commission, who dealt with public servants, had not given submissions on the Bill.
It was established that both had made written submissions but had not made oral submissions. The Chair said that these submissions would in fact not be as crucial as Mr Durr was suggesting as each and every department would be affected by this Bill.
Adv M Masutha (ANC) pointed out that clause 11(2) of the Bill was clear that there would be a demarcation between the jurisdiction of the Minister and the Public Service Commission with regard to the making of regulations. This reality indicated that the Public Service Commission would in any case have very little interest in the Bill since 11(2) made it clear that the terrain of the Public Service Commission was not tampered with at all.
Adv de Lange said that the new draft only dealt with some of the potential amendments. The first amendment option dealt with by Adv de Lange was the definition of administrative action. He pointed out that there were cases giving guidance on this issue. The Fedsure case had to be looked at. The statutory administrative justice right was entrenched in South African law in this case. The subsequent SARFU judgement gave strong guidance on what administrative action is.
In the new draft, six optional definitions for administrative action were given.
The first was by the SALC. According to their definition, administrative action included "any act performed, decision taken…. by a natural or juristic person when exercising a public power or performing a public function." This is in line with the SARFU decision. Various exclusions regarding executive, legislative and judicial functions were included. Adv de Lange felt that all organs of state constituted a juristic person but wanted clarity from the SALC on, for example, partnerships.
The Department, after the public hearings, has drafted two options. The main one – Option 2 uses the SALC’s option then adds the words "and adversely affects the rights of any person". Their other option, Option 3 doesn’t include all the exclusions but is simply a broad definition which is similar to Option 2 but it excludes the exclusions.
Option 4 (based on the Australian model) is a bit different but it basically has the same effect as Option 2. It usefully includes examples of "administrative decisions" and gives examples of what decision types are excluded.
Option 5 (based on the German model) says that administrative action had to have a direct external legal effect, linking it to the adverse effect on rights.
Option 6 was Adv de Lange’s definition and was a synthesis of much of the discussion at the hearings, incorporating part of the Australian model, part of the German model as well as addressing some of the concerns in the SARFU case (emphasis on "public power").
Adv de Lange directed the members' attention to the new proposed definition of "decision" in the new draft. He pointed out that this definition came from the Australian jurisdiction and included a ‘catch all’ phrase which members had to decide upon. He saw this definition as being very helpful for administrators.
Mr P Smith (IFP) said that he liked the German model but was against a catch all phrase included in the proposed definition of decision since it would give no guidance to the administrator. He wanted to know whether the notion of an "external legal effect" had any meaning in our law. If it did not, he wanted to know whether it needed to be defined.
Adv de Lange said that the courts would interpret it. He proceeded to examine the recent submission by Mr R Pfaff (GZT/SALC) on the German model and concluded that the importance of the concept "direct external legal effect" was to determine what the impact or effect of the action is and not necessarily where it is done.
In terms of Option 6 there were also various exclusions (decisions or actions which did not constitute administrative action), the last one, being on the advice of the Chief Justice, concerning the Judicial Services Commission (JSC). It stipulated that administrative action excluded among others, " any aspect regarding the appointment of a judicial officer." Adv de Lange said that this clause had to be slightly changed to indicate unambiguously that the JSC was being referred to.
Adv Masutha (ANC) said that "traditional leaders" (according to Section 211 of the Constitution) were referred to as an institution in the local sphere. The fact that all six options had omitted to include ‘organ of state’ (unlike the old draft) in their definition of administrative action was a concern for him. He felt that the introduction of the concept of "institution which exercises a public function" would cover the constitutional labeling of "traditional leaders" as institutions, whilst its omission may in fact allow "traditional leaders" to "fall through the cracks" and leave their actions outside the jurisdiction of administrative action.
Mr P van Wyk of the Law Commission was asked to look at the need to include the concept of "organ of state" or whether "juristic person" was sufficient, as well as Adv Masutha’s point about the "institution", in the definition of administrative action. A more definitive opinion of state organs was needed as it affected both this Bill and the Open Democracy Bill.
Adv de Lange said that Section 239 of the Constitution states that an organ of state has two areas:
The usual government ie. any department of state or administration in the National, provincial or local sphere of government.
Any other functionary or institution exercising a power or performing a function in terms of the Constitution or provincial constitution or exercising a public power or exercising a public function in terms of any legislation but does not include a court or judicial officer.
This second definition could become problematic because of the wideness of its application since it could include outside agencies to whom government had out- sourced work. When such agencies were for example tendering for a state job their acts could surely not constitute administrative action . However when they for example were performing functions like the payment of state grants then they would fall within the definition of organ of state and would be performing administrative action . A distinction had to be drawn in these two situations for in the former example, there was clearly no administrative action even though it could be argued that the agency with the winning tender was performing a public function.
Adv de Lange referred to Section 85(2) of the Constitution which dealt with executive authority of the President and members of the Cabinet and looked at the SARFU case which dealt with and interpreted aspects of this executive authority under section 85(2). The court found that one of the responsibilities under s85(2) was the implementation of legislation. This would ordinarily constitute administrative action within the meaning of Section 33 of the Constitution. Other powers of cabinet members for example the developing and initiation of legislation did not constitute administrative action .
Adv de Lange pointed out that the judgement therefore left room for the executive to prove that in certain circumstances the implementation of legislation could be a purely executive function (and not administrative action ). Nevertheless most implementation of legislation would constitute administrative action .
With regard to municipal councils, Adv de Lange asked Mr Van Wyk of the SALC to provide an audit of municipal powers in the Constitution. He wanted to know which fell under executive functions and which did not.
The issue of the omission / refusal to take administrative action was discussed. It was decided that this was important to be included in the definition of "decisions", as was done in the Australian model.
The issue of traditional leadership was raised. Adv Masutha (ANC) said that their actions did fall under administrative action for example they performed quasi- judicial functions, which fell into the realm of administrative action . Most members agreed that traditional leaders did not perform judicial functions since they were not judicial officers. Whether all their functions of a judicial nature were quasi-judicial and thus administrative action was not clear. The status of the actions of traditional leaders in terms of whether it constituted administrative action or judicial action or quasi-judicial action was particularly significant for those in the rural areas falling under the jurisdiction of such traditional leaders. Research had to be done to clarify these issues.
Adv de Lange said that it was nevertheless not the function of the Bill to deal with the status of quasi-judicial action. The courts had to deal with this as they had been doing in terms of the common law all along.
The next definition was "administrator". The Bill defined it as:" …an organ of state, judicial officer, prosecuting agency, or natural or juristic person taking administrative action." According to Section 239 of the Constitution, organ of state was not limited to the physical ownership aspect but included for example agencies or organisations performing a public function in terms of legislation. Most members agreed that the functionary was not crucial to determine whether something was an organ of state and thus performing administrative action , but rather the actual function being performed – a concept reiterated in the SARFU case.
Mr P Smith felt that "organ of state" was in fact an ownership matter. If any agent of the state was allowed to perform a public function in terms of legislation and then be regarded as an organ of state, there could be a situation where everyone could be an organ of state. He explained this as follows: a law in the interests of fighting crime, allowing all citizens to make citizen arrests existed in the Criminal Procedure Act. Citizens who act in terms of this law could be seen as performing a public function (which the police are supposed to do) and would thus be organs of state performing administrative action in terms of the definition of "organ of state" in s239.
Adv de Lange admitted that the concept was unfortunately wide. It was clear that the current definition of "administrator" did not only include "organ of state" which could cover a vast spectrum as demonstrated, but also included "natural or juristic persons" which were wide enough themselves. Thus, the definition needed some "fine tuning" . This concluded the morning session.
The Committee continued to deliberate over the new draft of the Administrative Justice Bill which contained a number of different options for the various sections of the Bill.
s1 Meaning of "Court"
Mr Smith asked whether the definition should include mention of "circuit courts"
(i.e. courts with the status of the high court that is not fixed in one place but that travels to where the parties are).
The Chair replied that mention of both "circuit courts" and "court tariffs" will be contained in a resolution to the Act and not within the Act itself as such matters are the product of administrative decision and do not belong within legislation.
The Chair was also concerned that the words "domiciled or ordinarily resident" (relating to the party whose rights have been affected) would cause undue jurisdictional problems (e.g. if the affected party moved from his area of domicile just before the trial to gain the advantage or to inconvenience the other party)
After much debate it was decided that research needed to be done on jurisdictional rules to ascertain whether the wording was indeed problematic.
Mr Smith also questioned whether the lines after the word "within" were even necessary in the definition of court as the lines before the word could be regarded as adequate for defining the term "court".
It was decided that the committee had three options:
a) they could delete the paragraph beginning with "within"
b) leave it as is
c) delete the reference to the high court but retain the reference to the Magistrate Court. It was noted that because of the case Estate Agents Board v Lek 1979 (3) SA 1048 (A), the reference to the Magistrate’s Court was of great importance in the definition of "court".
It was decided to research this issue.
s1 Meaning of "decision"
Mr Smith questioned whether "decision" referred to the entire administrative act undertaken or whether "decision" referred to all the individual procedures that made up the administrative act. It was decided that "decision" referred to the end product of the administrative process rather than individual steps within that process. It was also noted that this definition was influenced heavily by Australian legislation and it could be referred to in interpreting the term "decision".
s1 Meaning of "executing authority"
The Chair found the wording of the definition of this term (which only arises in two places in the Bill) very torturous. He questioned whether there was not a way of simplifying this definition.
s1 Meaning of "Public"
It was debated why the definition of "public" referred only to groups or classes of the public rather than the general public. Adv Masutha noted however that the word "includes" in the definition implied that it referred to both sections of the public and the public at large.
s1 Meaning of "Qualified Litigant"
It was noted that this definition has been lifted straight from the locus standi section of the Constitution (s38). It was therefore questioned why it was necessary to include such an extensive definition. The Chair suggested that all that was need was to state that a qualified litigant referred to anyone acting in terms of s38 of the Constitution.
s2 Right to Administrative Justice
It was decided that s2(1) of the current draft would be changed as it referred only to the right in the interim Constitution when it should have referred to the right in the final Constitution.
The Chair indicated a preference for Option 5. All the other option repeated the right to administrative action as laid out in the Constitution. The Chair noted that the function of legislation was to limit or build on constitutional rights not merely to repeat them.
Criticism was directed at (2) of Option 5. It was suggested that the words after "but nothing" in this subclause clashed with Section 34 of the Constitution. The Chair argued the entire subclause did not really add value to the Bill and could be deleted. Some members pointed out however that it was necessary for the legislation to create a duty on the State to carry out the right to administrative justice. The Chair suggested that an inquiry into the following questions be undertaken:
a) Is (2) necessary at all?
b) If necessary which option should be chosen?
c) Can a new option be drafted?
s3 Interpretation of the Act
The Chair questioned the inclusion of the term "international law" in this section. The term is too wide as only customary international law is likely to contain rights relevant to this Bill. Besides the words "or any other law" incorporates international law.
The Chair also questioned the use of the word "freedoms". Freedoms may be read too widely to include all interest and not only rights are to be part of administrative law.
Many members criticized the naming of this clause. They argued that it was not an interpretation clause but rather a savings clause in that it preserved administrative rights (not in conflict with the Bill) found in other areas of South African law. Some members argued that the clause could not only save common law rights but also end up amending the common law as the rights had to be "consistent with the Act" to be recognised. The Chair commented that this was not the intention of the legislature as only the Constitution can validate or invalidate rights. The Chair suggested that, in light of this discussion, the clause might have to be deleted or its wording would have to be changed.
Mr Smith argued that policy problems may arise if this clause invalidated administrative rules in customary law that were constitutionally valid but inconsistent with the Bill. He gave the example of tribal authorities not giving written reasons for their decisions. The Chair suggested that this matter be investigated further by the Law Commission.
The meeting was adjourned.