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JUSTICE AND CONSTITUTIONAL AFFAIRS PORTFOLIO COMMITTEE; SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
8 December 1999
ADMINISTRATIVE JUSTICE BILL [B56-99]: DELIBERATIONS
Documents handed out
Administrative Justice Bill with optional amendments included (AJU63)
Summary of Submissions (AJU62)
Rean International Supply Company (PTY) LTD And Others v Mpumalanga Gaming Board 1999 (8) BCLR 918(T)(High Court Transvaal Provincial Division) (AJU64)
The committee continued going through the new draft of the Bill which presents optional proposals compiled from the submissions heard at the hearings.
Sections 4, 5, 6, 7, 8 and 11 were examined. Within Section 4 there is the inclusion of criteria for the first time for determining what circumstances justify a departure from fair procedure requirements in order to guide administrators and the courts. Intricate technical problems relating to reasons (written and otherwise) for administrative action were debated in Section 6. The controversial presumption in s6(3) was thrashed out. Contradictions in sections were pointed out e.g. in relation to time periods - s6(4) & s10. The important issue of domestic internal remedies was highlighted. The Minister's powers and the limitations thereof, in relation to the making of the regulations in the context of the Bill's mandatory consultation and parliamentary approval mechanisms.
Further amendments will be drafted from the discussion of these two meetings (7 & 8/12/99) and forwarded to committee members (on 15/12/99) for consideration during the recess. [This draft will be made available at http://www.pmg.org.za/aj/aj.htm soon after]
Section 4: Procedurally fair administrative action
The Chair pointed out the differences in the new draft. Amongst these were:
"interests" has been removed and "legitimate expectations" has been added
The next option provides a low threshold thus anything goes in. Following on the request of Govender, Haysom and Budlender "materially" has been added plus "legitimate expectations". The Chair noted that the SALC proposal that "rights or interests or legitimate expectations" be included must still be reflected. Within 4 (4)(b) there is the inclusion of criteria for the first time for determining what circumstances justify a departure from fair procedure requirements (to guide administrators and the courts). Within 4 (4)(a), there are two proposals: to include "exceptional" circumstances. The second proposal suggests that necessary is too high a test so reasonable should be added which is in line with the Constitution. In order to avoid giving the Minister a blank cheque to 'legislate' , any exemption or permission has to be submitted and approved (or adopted) by Parliament as reflected in new subclause (7).
The Chair noted that none of the members had been able to produce court cases regarding "interests" as originally in Section 4 (1). As there had been no help on the meaning of rights which has many meanings, he could not see any other option than leaving out "interests".
With regard to "legitimate expectations", the Chair clarified that this refers to a procedure that is going to be followed and not to a right/expectation that you are going to "get something". He referred to the Leach and Office of the Premier: Mpumalanga cases.
Ms Chohan-Khota (ANC) accepted that "legitimate expectations" provided a procedural remedy rather than a substantive remedy but she had a problem with the wording. She stated that you cannot lump rights and "legitimate expectations" together. "Legitimate expectations" cannot be treated as an equivalent of a right as it is part of the procedure. She suggested they be separate into two subsections.
Adv Masutha (ANC) raised the issue of procedural fairness before a decision is taken in terms of benefits. For example when an application for a pension is declined by the Director General, when does the applicant have a hearing?
Adv de Lange said that according to the audi alteram partem principle you must give the applicant a chance to have their say. You cannot leave it to an internal review mechanism via the Minister. Before you make the decision to refuse the application, you have to have a hearing.
Adv Masutha believed that the implications of this could be far-reaching in terms of impacting on the present system and that such a notion might create new rights where none exist.
The idea was then raised of inefficient officials allowing temporary disability grants to continue past their expiry date. Would the recipients of the grant have a legitimate expectation to notice before it is summarily terminated. The Chair commented that where people are acting illegally, legitimate expectation surely could not exist.
Ms Jana (ANC) concurred with Adv Masutha's original point that that there had been a great deal of concern regarding administrative decisions relating to the receipt of benefits (pensions and grants). She said that the receipt of a benefit does not appear to constitute a right within the given definitions of administrative decision, especially since the new options leave out interests. Adv de Lange asked the drafters that benefit be added to the definition of decision relating to "making, suspending or revoking or refusing to make an order, award or determination."
In a discussion of Section 4 (3) initiated by Mr Jeffrey (ANC) it was agreed that as currently worded it is inexplicable. How is an administrator going to know when this section is necessary and a person is entitled effectively to a hearing as no guidance is provided with regard to the discretion of the administrator in the matter. Thus judges are going to read it from case-to-case. The suggestion was that it must be worded carefully or it must be deleted. The Office of the Premier: Mpumalanga case bears relevance as to what cases would require a hearing.
In opposition to a proposal to include a qualification/obligation as to reasonable time period for administrative action, the Chair said that on that ground alone, any administrative action could be challenged.
Ms Chohan-Khota commented that in Section 4 (2) discretion again comes into play as the criteria are not in a closed list but are prefaced with the phrase "but includes at least". It needs to be made clear if the discretion is on the part of the administrator or the courts.
Adv de Lange noted that the wording of the introductory parts of both Section 4 (2) and (3) needed to be looked at. They had to be made more definite. Prof Mabeta (UDM) echoed Adv de Lange's estimation of the phrases "but includes at least" and "may entail" in Section 4 (2) and (3). He said that the formulations needed to be made absolute and direct with no ambiguity.
With regard to Section 4 (2) Mr Smith once again raised the issue of tribal authorities and the extent to which they will be included here and will need to comply with these requirements. Adv de Lange again noted that this needs to be researched but he pointed out that the Minister could vary these requirements for traditional leaders. Mr Smith believed that the reality of society needed to be faced rather than leaving this facet to the discretion of the Minister.
Prof Mabeta commented that it would be unfair not to note that the confusion around the issue of tribal authorities was not due to sloppy drafting. He stated that the rules and laws guiding tribal authorities are not codified and that there are no uniform procedures even within subregions.
With reference to common law, Adv de Lange said that this Act does not change it. The two systems exist side by side until they mesh in time. You try and get the common law to be in line with what you have in the Act but this takes time. Only when you fall clearly within this Act does this Act apply, and even then, common law can be applied.
Ms Chohan-Khota thought this to be an accurate assessment except that common law should be the same or less onerous in terms of capping procedures. Adv de Lange said that the limitations clause and cost would be the capping factors - and when you extend into horizontality, it should be less onerous in the private sphere.
Mr Lever (DP) found Clause 4 (4) problematic as the criteria gave unfair discretion. The committee considered various examples of departures from requirements in this context. For example the cutting off of the water supply by a local council for non-payment of water use. Did there need to be proper notice? Further what about those who had paid who would also be affected? Mr Lever felt that this was a contractual breach on the part of the recipient as did Mr van Wyk of the SALC. Mr Masutha believed that it had elements of both contractual breach and procedural fairness rules. For example if the administrator changed the parameters of the contract and increased the tariff excessively, who then has broken the contract? It was agreed that this had to be looked into further.
Ms Taljaard (DP) drew attention to the public/private sector partnerships in local government which exercise a public power such as with Egoli 2000. In exercising a public function will the contract fall within an administrative justice framework? Adv de Lange acknowledged that this raised a complicated contractual issue where the contract was with government and an agency from the private sector. He asked Mr van Wyk to raise this point with Messrs Breitenbach and Gauntlett of the Law Commission for clarification and understanding. They do not look mutually exclusive but it turns on the definition of administrative action and decision.
Adv de Lange also noted that two further aspects have not been satisfactorily drafted yet. Firstly a domestic remedy had not been included yet. Secondly an audit of existing legislation had not been conducted as yet with regard to clashes in application. He noted as an example the Labour Relations Act. Clause 4 (5) was the best that they had come up with.
Co-chair, Mr Mahlangu, noted that no input had been received from the Department of Correctional Services as to the impact of this Act on their environment. Adv de Lange noted that with regard to parole review, this Act would be beneficial as proper procedure would have to be followed and the prisoner would have to be present at the parole hearing in order to give input. However the inner working of the prison will not be affected.
In conclusion to discussion on Section 4, the Chair noted two references to the Open Democracy Bill in this Bill (Sections 4 (3) and 6 (1) and that there needs to be synergy between the two Bills. He also emphasised the need for understanding contractual parameters.
Section 5: Administrative action affecting the public
This is a discretionary section and the Chair believed the new options would not be too controversial as nothing is obligatory. Whereas Section 4 deals with individuals, Section 5 follows broader procedures for when an administrative decision affects a mass of people and is a substitute for Section 4.
Mr Landers (ANC) pointed out that the Gazette is inaccessible in the rural areas and that the report of a public inquiry should also be made available in a local newspaper. The Chair believed this did not solve the problem because of the issue of illiteracy. He suggested that the drafter add that if circumstances merit it, the administrator must find other appropriate ways of publicising the report of the inquiry (for example, the radio).
Prof Mabeta (UDM) believed that the report should not be published "in English and in at least one of the other official languages" but should be published in the most appropriate languages for that particular area which might not be English. The Chair said that one had to assume a certain amount of bona fides, especially as this section was discretionary and the administration would be "shooting themselves in the foot" if they did not give effect to this procedure in the most appropriate way.
Section 6 Reasons For Administrative Action
The chairperson, Adv de Lange, was concerned with Section 6(3) and (4). He could not understand why, where an administrator failed to give "adequate reasons" for administrative action, it would be presumed that the administrative action was unlawful under 6(3). He doubted whether the Constitution allowed this. In any case in the light of Adv de Lange subsection 3 made no sense, for 6(3) says that if adequate reasons are not given then there is the presumption against the administrator. In the very next subsection, 6 (4) states that the administrator may in fact be excused from providing reasons where requested to do so under ss2, "if the circumstances justify". Adv de Lange found that in these circumstances the presumption made no sense. There was broad agreement on this.
In terms of s6(4) Adv de Lange pointed out that the Law Society had called for the deletion of 6(4) on the basis that it clashed with Section(s)10 which made it clear that only the parties or the courts could extend the time periods for reasons to be given. 6 (4) however allowed an administrator to depart from the requirements in ss2 "if the circumstances justified it. This clearly leaves room for the interpretation that the time periods in ss2 relating to reasons being given within 90 days could also be altered by administrators. De Lange tended to agree with this and suggested that in ss4, the time period issue be excluded.
Mr L Lever (DP North West) said that the presumption in 6(3) was quite in order.
Mr P Smith (IFP) said that whilst exemptions were needed there was the danger that administrators would abuse these exemptions for example if 6(3) & (4) were kept the problem was that you would not know at which stage the reason has not been given since there was no obligation on an administrator to say that he has used 6(4).
Adv de Lange said that there had to be some mechanism to indicate how 6(4) linked up to 6(3) otherwise " you would not know when 6(3) would kick in."
Adv de Lange pointed out that Option 2 under 6(8) should have been included as 6(6)(c), ) stating that the Minister, after consultation with administrators, could in the Gazette publish a list of kinds of administrative action in respect of which administrators had to furnish reasons to a person whose rights were adversely affected by administrative action without such persons having to request reasons for such administrative action. This would allow the Minister to start developing an area where there are reasons automatically given. Cosatu had raised the need for this quite strongly.
Ms P Jana (ANC) felt that in addition to reasons being furnished in writing there had to be an alternative to cater for a vast number of people who could not read and write. It was pointed out, by a drafter that if 4(a) was retained, this may deal with the problem of written reasons.
Adv de Lange wanted to know what the position was in the Constitution regarding written reasons. The case of Rean International Supply Company (PTY) LTD And Others v Mpumalanga Gaming Board 1999 (8) BCLR 918(T)(High Court Transvaal Provincial Division) was referred to which dealt with inter alia what constituted adequate written reasons. The court held that whilst an administrator did not have to spoon-feed an aggrieved party seeking reasons, it could not expect the aggrieved party to seek justification for the reasons from a myriad of documents. The reasons had to be "intelligible and comprehensible â€¦" . Whether there was a duty to give the reasons as well as the legal basis for them was not certain but nevertheless it seemed as though the Constitution in Section 33, read with schedule 6 item 23(2)(b) did require this.
Mr Masutha (ANC) agreed with Ms Jana that there had to be an alternative to written reasons to cater for disabled persons who were blind for example. He stressed that it had to be in addition to written reasons, which had to be provided in all instances. In the sphere of welfare for example, in relation to pension and other social grants, where a person qualified for such pension or grant which was subsequently refused, there had to be reasons for the refusal as well as the legal basis. He suggested that people with disability should be assisted if they require grants. Where they did not qualify they had to be told why.
Adv de Lange pointed out that whilst the Constitution says that written reasons had to be provided, this right, as with all others, could be limited and would be where circumstances justified it. He had a problem with the fact that where reasons had to be given, they had to incorporate all the essential facts as well as the legal basis for the decision. He argued that there was a fundamental difference with the situation of a Director General acting as an administrator and a clerk with grade 12 acting as one. Surely where there were simple everyday decisions to be taken which required reasons, the situation of the clerk ticking "yes" and "no" boxes on a pre-printed form could in various circumstances be seen as adequate. This would hardly be the case with the Director General.
The next issue dealt with by Adv de Lange was "a request " for written reasons. There was no clarity on whether such a request could be over the phone or in writing. If only the latter then the problem with illiteracy was not addressed. If the former was also allowed there would be no record to prove that the request was made. It was pointed out that the minister should be left to deal with this problem by making regulations in this regard in terms of 11(1)(d).
Section7: Grounds of Review
Adv de Lange raised the question of why the Bill had included a section on grounds of review. He pointed out that it was not part of the right to Administrative Justice since it could not be directly linked to section 33(1) or (2) of the Constitution dealing with fairness and reasons. Even though 33(a) says that National Legislation mustâ€¦provide for the review of administrative action â€¦, the Constitution does not give any guidance on the grounds for review. He said nevertheless that, no harm was done by including such grounds in any case.
Section 7(g) was said to amount to appeal not review and there were three options in the new dratf to replace it. The first was a simple option. The second was found in Australian Law. The third was from Mr Budlender and Mr Govender taken from their analysis of the Soobramoney case which turned on rationality and not unreasonableness.
He noted that Professor Haysom had suggested that certain definitions in 7(h)(2) (a)&((b), for example relating to "empowering provisions" and 'law' be removed. Adv de Lange agreed with this since as it stood it could lead to absurd interpretations, which could elevate "agreements" and "documents" to the status of "Law".
There were currently no options to replace these definitions but clearly there was a need to amend this, which would be dealt with.
Adv de Lange pointed out that section 7 attempted to codify the common law grounds of review. He stressed that it did not affect such common law grounds of revue at all.
Section 8 Procedure for Review
To avoid rules, relating to the review procedure, being passed which did not meet with what parliament wanted s8(4) was included. It stated that any rule made under 8(3) must be approved/adopted by parliament. S8(2) was a first attempt to provide for the exhaustion of domestic remedies.
Adv de Lange said that as regards domestic remedies S8(2) did not quite address the problem adequately. He asked the drafters to contact Professor Haysom who had said that he had a clause on domestic remedies. This would ideally deal with the fact that many institutions had internal remedy procedures already. It was thus important that the Bill did not interfere with this.
Adv de Lange did point out that to some extent there was an attempt in s4(5) to make provision for "a fair but different" procedure to be followed which could be interpreted to deal with domestic remedies. This "fair but different" procedure would not automatically be constitutional. The Act which made provision for this "fair but different" procedure would still have to be tested in terms of its constitutionality. Thus it has to comply with Section 33 dealing with just administrative action.
The problem of domestic internal remedies was a problem, which was also raised by the President. It was clearly an important concern to be dealt with.
Ms F Chohan-Kota (ANC) was not to sure what rules the Rules Board referred to in S8(3) would be making.
Adv de Lange said that they would provide rules for Section 7 - the rules of procedure for judicial review. He said that the rules of court existing at the moment are for common law review. Since there will be an Act providing for judicial review, the Rules Board must decide whether the existing rules are sufficient or whether there should be more added. In this "Act" unlike under common law review, there are, for example, no time limits. This may require some additional rules or changes.
Section 11 Regulations
In section 11(1) there was one option. Firstly 11(1) stated that the "may" became a "must". Thus the minister was obliged to make certain regulations. With regard to 11(2) "may" remained as it was. The second change was in 11(4), which said that where regulations were made under 11(1) and 11(2) (d) (e) & (f), they had to be submitted to parliament. Where regulations were made under 11(2)(a) (b) & (c) they had to be submitted to and approved/ adopted by parliament. The reason for requiring adoption/ approval by parliament in terms of 11(2)(a) (b) & (c) was that they were controversial issues. In addition there were no principles in the Bill giving guidance on 11(2) (a) (b) & (c) since they are not dealt with anywhere in the Bill. On this basis it would constitute a "blank cheque" to the minister, therefore it must come to parliament for approval.
The third change was in 11(2)(b) to make sure that the Public Service Commission (PSC) is consulted on the code of good administrative conduct. In relation to this a two year period was suggested by Adv de Lange in which this had to be done. S11(2) (d) was also suggested by him.
In 11(3) the Minister had to have prior consultation with the PSC regarding any matter which may be regulated by the PSC.
Mr P Smith wanted to know whether, in terms of 11(3), the minister could make regulations regarding any matter, which may be regulated by the PSC, if there had simply been consultation.
Adv de Lange said that there could not be Chinese walls in government. The object of 11(3) was to facilitate a process of consultation. The Minister could thus send regulations to the PSC and could ask them for their comments and try to get agreement on issues of mutual concern. Without this the PSC could for example come afterwards and argue that there was a clash of regulations in some or other respect.
Ms Chohan Khota (ANC) wanted clarity on 11(2)(b). She said that if the two year period was included then this would take away the discretion of "may" in ss2. Adv de Lange took the point and said that this "may" had to be changed to a "must within a 2 year period."
Ms Taljaard (DP) was concerned about limiting the consultation to that with the PSC since there could be other cases not catered for since they did not fall within the jurisdiction of the PSC. This was in respect of 11(2) (b) and not 11(3).
Adv de Lange took the point but said that regulations under 11(2) (b) had to be approved by parliament thus other interested parties would not be overlooked by parliament.
Mr Smith (IFP) felt that when the minister made any regulations he should be required to consult with "all relevant stakeholders".
Adv de Lange pointed out that this could become problematic since "relevant stakeholders" was too wide a concept. Thus any person could attack the regulations on the basis that he/she was not consulted and felt that he/she was relevant. He accepted that in terms of 11(2)(b) it could be considered to somehow include this.
Adv de Lange stressed the point that final decisions were not being taken presently. What the committee was doing was to clarify, re-draft, and add various options so that a good third draft would be available incorporating concerns raised and amendments suggested by members with regard to the first draft. The drafters would have this next draft ready by Wednesday 15 December so that members could scrutinise it at their leisure. The meeting was adjourned