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JUSTICE AND CONSTITUTIONAL AFFAIRS PORTFOLIO COMMITTEE; SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
20 January 2000
ADMINISTRATIVE JUSTICE BILL: DELIBERATIONS
Documents handed out
Working Document - Administrative Justice Bill (AJU 67C)
Promotion Of Administrative Justice Bill (B56B-99)
Black Sash's comments on: Working Document AJU67B - "Promotion of Administrative Justice Bill" (AJU71)
This session comprised a "mock vote" on the clauses to be included in the Bill by the 18 Committee members. The aim of this relatively informal exercise was to test the support for various clauses, decrease the number of options available for the final vote and make any further and final amendments that may be required. In most cases only two options were considered for inclusion: one being supported by Opposition parties (represented generally by the DP) and the other being advocated by the Governing Party i.e. the ANC. The Preamble will have a few changes made to it including a paragraph on good governments. Working document AJU 67C was used at this session.
s1 Definition of "Administrative Action"
Option 2 was supported by the ANC and won the vote (12 votes to 6)
s1 Definition of "Administrator"
Option 2 was supported by the ANC and won the vote (12 votes to 6)
s1 Definition of "Court"
The Committee agreed to change the word "proclamation" to the term "notice in the Gazette". It was agreed that all brackets should be removed from Option 2.
Option 2 was supported by the ANC and won the vote (10 votes to 4)
s1 Definition of "Executing Authority"
The entire committee agreed to exclude the definition of "executing authority" from the bill.
s1 Definition of "law"
The DP wanted to add the phrase "and prescribed code of administrative conduct" to the definition of the term "law". The Chair argued that if the proposed code was given legal effect, it was likely to have adverse consequences: it would be excessively brief as drafters would fear too much detail in the code would give rise to too many grounds of review for administrative decisions. This was contrary to the aim of providing a comprehensive, educational guide that administrators should use when making administrative decisions.
The DP agreed to drop their demand.
Option 1 was then passed by the entire Committee.
s1 Definition of "qualified litigant"
The Committee agreed to remove the term "qualified litigant" wherever it appears in the bill and to replace it with the term "person". This was done in order to remove ambiguity and reflect the position that the normal rules of locus standi (legal standing) should apply to litigants in the normal course of events.
s2 Right to Administrative Justice
The Committee agreed to scrap s2 and replace it with option "Obligation to give effect to the rights to just administrative action".
s3 Application of the Act
Option 2 was rejected entirely. Option 3 supported by the ANC won the vote (12 to 6).
s4 Procedurally Fair Administrative Action
DP supported Option 3 for s4(1). The ANC supported Option 2. Option 2 won the vote (12 to 6).
The DP supported option 1 for s4(2). The ANC supported Option 2. Option 2 won the vote.
The DP supported Option 1 for s4(3). The ANC supported Option 2. Option 2 won the vote. (12 to 6).
The DP supported Option 2 for s4(4). The ANC supported Option 1 provided the words "to...necessary" and s4(4)(v) and (vii) would be deleted. Option 1 won the vote (12 to 6).
s5 Administrative Action Affecting Public
The DP supported Option 1 for s5(1). The ANC supported Option 4 provided the term "substantially" was removed. All parties agreed to exclude Option 2 and 4 from consideration. Option 4 won the vote (13 to 5).
All parties agreed on the second Option for s5(3)(a).
The DP supported Option 2 for s5(4). The ANC supported Option 1. Option 1 won the vote (12 to 6).
s6 Reasons for Administrative Action
The DP supported Option 1 for s6(1) provided the words "incorporating the essential facts and the legal basis for the action" were inserted. The ANC supported the second option. The second Option passed 12 votes to 6.
All parties supported Option 2 for s6(2).
The ANC supported Option 1 for s6(4). The supported Option 2. Option 1 won the vote (12 to 6).
All parties supported Option 1 for s6(5).
All parties supported Option 3 for s6(6) provided the word "materially" was omitted.
s7 Grounds of Judicial Review
The ANC supported Option 1 for s7(1). The DP supported Option 2 provided certain subclauses were made clearer and the brackets were removed. Option won the vote (12 to 6).
s8 Procedure for Judicial Review
All parties recommended that the word "domestic" in s8(2) should be changed to "internal". In Option 1, the Chair indicated that preferred using the term "Subject to paragraph (c) rather than "Notwithstanding the provisions of this Act" as this was clearer.
All parties agreed to Option 3 for s8(2).
s9 Remedies in proceeding for Judicial Review
The ANC supported Option 1 for s9(2)(c). The DP supported Option 2. Option won the vote (12 to 5).
The committee voted on whether to exclude the proposed insertions into 11(1e) and all of (1f). The result of the vote was 14 members in favor of excluding the insertions, 3 opposed, and 1 abstention. 11(1e) will now read: "a code of good administrative conduct", and 11(1f) will now be deleted.
The committee agreed unanimously with 18 votes in favor of excluding all the proposed insertions in 11(2). They also voted unanimously to exclude "(b), (c), and (d)19" in 11(3a), and "(e) and (f)20" in 11(3b).
The Democratic Party (DP) proposed an amendment to Option 1 of 11(6) to take out "the Public Service Commission". Option 1 was previously submitted by the DP. The Chair noted that the difference between the two options was that option 1 requires consultation by one Minister, while option 2 requires approval by the Cabinet The committee voted in favor of option 2 with 16 votes.
The Chair stated that they will be making slight changes to the wording in paragraph 3 of the Preamble. Also he had asked that a new "technical paragraph" be added relating to a guide for good governments". Mr Labuschagne, the drafter, was in the process of redrafting the Preamble. The committee members agreed that the changes would be acceptable. The committee unanimously voted to delete the proposed insertions in the "Bill" section.
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