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JUSTICE AND CONSTITUTIONAL AFFAIRS PORTFOLIO COMMITTEE; SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
10 January 2000
DELIBERATIONS ON ADMINISTRATIVE JUSTICE BILL [B56-99]
Documents handed out
Working Draft of Bill as of 15/12/99 (AJU 67)
The members deliberated on the working draft of the Administrative Justice Bill (AJU67) up to the end of section 6.
The Chair acknowledged up front that there is not going to be a 100% perfect Bill - there is too much work to be done in the time remaining.
The Chair read out the preamble to the Bill in a summarised form and expressed his dissatisfaction with what he believed to be a mechanistic approach. He noted that the preamble indicates where the impetus for the Bill comes from but does not express what is trying to be achieved. He questioned whether it is what is wanted and expressed the need for more attention to be given to it.
Ms Smuts (DP) felt there to be nothing intrinsically wrong with the preamble as presently formulated and saw no need to disturb it.
The Chair wrapped up the discussion concerning the preamble by inviting those who felt that it could be improved to have a look at it and stated that tomorrow (11 Jan) would be the last opportunity to make any suggestions in this regard.
Clause 1 - Definitions
The Chair drew the members' attention to Option 8 of the definition of "Administrative Action" and in particular to the inclusion of the words "failure to take such a decision". He suggested following the German approach by referring instead to an "omission". Attention was drawn to a new exclusion from the Option 8 definition found in (i)(b)(cc). Additionally, Mr Smith's (IFP) suggestion concerning the judicial functions of traditional leaders has also been included as (i)(b)(ee). Furthermore it was noted that this definition of administrative action had to be read with the definitions of "decision" and "failure".
Ms Smuts (DP) expressed the view that the only good aspect of this definition of administrative action was that it addresses the question of organs of state up front. The other options included in the working document which do not do so were not favoured. She stated that other than addressing the question of organs of state, the Option 8 definition was fundamentally flawed in that it returns to the use of "adversely affects" [(i)(b)]. She felt that by so doing, the definition of administrative action is narrowed, contrary to the demands of the Constitution. She stated that it is not only when rights are adversely affected that one can claim the right to just administrative action.
Ms Smuts (DP) then turned to Options 4 & 5, saying that the Australian definition (Option 4) was attractive but problematic in that its scope was limited to "decisions". Whereas Australian law has jurisprudence in this area, she continued, this is not the case in South Africa. She noted a similar problem with the German notion (Option 5) of "direct, external legal effect" and expressed reservations about incorporating continental notions into a common law - based system such as South Africa's. She concluded by stating that Option 8 is the least favoured by the DP.
The Chair requested clarity and asked which option the DP favoured and with what amendments.
Ms Smuts (DP) expressed the DP's inclination towards Options 1 & 7. Option 1 was "okay" but requires changing "includes" to "means". Furthermore, certain exclusions from the executive functions as now contained in Option 1 need to be modified following the SARFU judgment. She moved on to Option 7 saying that it was also "okay" but "not great" - it does not really say what administrative action is. The DP would prefer "rules and standards" to be included in this definition together with the same exclusions found in Option 1 (i)(a). In summary, Ms Smuts (DP) concluded that the DP's preferred options are 1 & 7, and that the SALC's latest version was a "default position".
The Chair then suggested it was time for a debate concerning the German and Australian positions. He stated that some of the DP's concerns were valid while others were not - regardless of foreign jurisprudence and associated problems with adopting foreign concepts, South Africa was developing its law in this area. He called on the DP to express its views regarding the inclusion of the definitions of "decision" and "failure".
Ms Smuts (DP) approved of the innovations in the new draft and welcomed the definitions of "failure" and "decision".
The Chair drew attention to the inclusion in the definition of "decision" of (g) - "act or thing performed".
Mr Swart (ACDP) declined to express a preference for one of the options of the definition of "administrative action" and stated that it needed to be caucused.
The Chair returned to Option 8 of the definition of "administrative action" and suggested including "public function" in addition to "public power." He also expressed concern over the use of the potentially problematic term: "in terms of an empowering provision" (Option 8 (i)(b)). He then moved on to the Option 8 (i)(b)(ee) exclusion concerning judicial functions of traditional leaders. He doubted whether there is anything they do which can be classified as "judicial".
De Lange mentioned that the SALC was looking at the question of traditional leaders.
The Chair then stated that this issue was really inconsequential and the insertion of this exclusion from the definition of administrative action was harmless as, following the SARFU judgment, judicial functions did not constitute administrative action in any event.
Ms Jana (ANC) reintroduced the question of use of the terms "public power" and "public function".
The Chair continued and questioned why, when it came to the exclusions, reference was only made to "executive functions" as opposed to "powers and functions".
Mr Lever (DP) questioned why the words "or any other law" were included at the end of the Option 8 (i)(b)(ee) exclusion.
Mr de Lange responded by saying that certain statutes, in addition to customary law, empowered traditional leaders, for example the old Black Administration Acts.
The Chair addressed the wording of Option 8 (i)(b) and suggested reversing the order of the wording from "which is intended to ..and adversely affects the rights" to "adversely affects the rights..... and is intended to......" ie. a technical adjustment.
He then turned to the definition of "decision". He noted that the version of Option 1 included in the Working Document was incomplete and that it therefore could not really be discussed. Consequently he focused on Option 2. He emphasised that this Option refers to "empowering provision" and therefore that if this Option is adopted then "empowering provision" must be defined. There is a definition of "empowering provision" in the context of clause 7 (Option 4 (2)(c)), however, the Chair expressed concerns about this definition, particularly in respect of what constitutes a "law", and questioned whether a definition of "empowering provision" was necessary.
The Chair then moved on to the definition of "failure" and noted that it was "quite nifty": It encapsulated not only a refusal to take a decision, but also a refusal.
The discussion then moved on to the definition of "administrator." The Chair raised the question of whether there should rather be a phase something like "a natural or juristic person including an organ of state". He queried the extent to which there is an overlap between a juristic person and an organ of state.
Ms Smuts (DP) argued that an organ of state is not a juristic person and therefore that organ of state should be included separately.
The Chair pointed out that the SALC could not answer this question and that for certainty, organ of state should be included separately. He called upon Mr J de Lange, the drafter, to investigate problems and possibilities.
The Chair then moved on to the definition of "executing authority" and questioned why such an authority should be different from an administrator. In the second Option "executing authority" is omitted. If it is omitted, clause 5 (which refers to an "executing authority") must be altered to use "administrator" instead.
Ms Smuts (DP) stated that if such a definition is not needed then it should be omitted.
The Chair briefly dealt with the definition of "Constitution" which was fine.
The Chair then moved on to a discussion of the definition of "court" and mentioned the Leck case. The terms "domiciled" and "ordinarily resident" were raised for discussion. He noted that the Supreme Court Act lists one of the grounds of jurisdiction as residency. He expressed a reluctance to use terms like "adversely affects" if this is not what the Leck judgment means. He suggested the possibility that the Leck judgement does not mean what the Legal Resources Centre says it does.
The Chair suggested omitting the mention of jurisdiction from Option 1 and leaving it to the High Court and Magistrates' Courts to settle questions of jurisdiction.
In respect of Option 2, the Chair stated that it was not necessary to state the jurisdiction of the Constitutional Court.
In respect of Option 3, the Chair noted that the phase "within whose area of jurisdiction..." was only applicable to the Magistrates' Courts.
Mr de Lange stated that it was only the Magistrates' Courts which benefited from this sort of explanation and that since the Leck case there was no problem in respect of the High court.
Ms Jana (ANC) expressed a preference for Option 2 but raised concerns over whether this definition concurred with the Magistrates' Court Act. She suggested the possibility of lifting the wording from the Magistrates' Court Act in respect of jurisdiction.
Mr de Lange read the jurisdiction provision from the Act (s. 28). He noted that ordinary Magistrates' Courts do not have jurisdiction in respect of Administrative Action and that the Act would therefore fall short. It was necessary therefore to have a special section designating Magistrates' Courts.
The Chair sounded a cautionary note pertaining to use of the phrase "Magistrate's Court". He felt that the word "Magistrate" should be used instead as particular magistrates would be trained to deal with questions of administrative justice as opposed to a particular court (for example Wynberg Court 4) dealing with administrative law issues.
Mr de Lange voiced concerns over the wording of this and said that the designation of magistrates must be dealt with carefully as there exists the possibility of altering court structures.
Ms Smuts (DP) favoured leaving it to the magistrates to sort out.
The Chair felt that this would be a disaster. He stated his dissatisfaction with allowing Magistrates' Court to deal with matters of administrative action. If they are to do so, he stressed the need for proper training. He emphasised the tricky nature of administrative law and was nervous about the prospect of a badly thought-out process of nominating magistrates to deal with administrative law cases.
Ms Jana (ANC) suggested that the Justice College include courses in administrative justice and pointed out that few magistrates have training in civil matters.
Mr Swart (ACDP) expressed slight reservations about using the words "adversely affect" (Options 2 & 3 of the definition of court) and questioned whether it introduced a new area of jurisdiction.
Ms Smuts (DP) stated her preference for either Option 2 or 3. She expressed the view that jurisdiction should only be mentioned in connection with Magistrates' Courts and didn't need to be elaborated with respect to the High Court or Constitutional Court. Her personal opinion was that the Chief Magistrate should designate magistrates to deal with administrative law issues after such magistrates had undergone training.
Mr Masutha (ANC) noted that in deciding who should designate magistrates, members should be conscious to avoid the possibility of failing to consult with communities and traditional structures as such a failure could lead to conflict. He expressed his inclination towards the view that decisions of jurisdiction should be left to the Minister to decide.
The Chair noted a lack of clarity here and that these issues would stand over.
He then moved on to the definition of "Minister" which was unproblematic as was the definition of "prescribed" and "public".
He then brought up the definition of "qualified litigant" and the option for discussion. He noted that the option would not work. It refers to the s.38 standing provision of the Constitution, however s.38 contains the words "Anyone listed in this section has the right.......alleging that a right in the Bill of Rights has been infringed or threatened..." Transposing these words to the AJA will not make sense.
He noted that the option could be used but would require wording something to the effect of "anyone applying to a court for review of administrative action in terms of clause 7 (grounds of review) of this Act, including...." instead of "in terms of s 38 of the Constitution".
Ms Smuts (DP) requested clarity on why s.38 could not be used.
The Chair spoke of two reasons concerning the manner in which s.38 is drafted. Firstly, s.38 speaks of rights in the Bill of Rights and secondly, s.38 speaks of relief - which is a confusing inclusion in what is meant to be a standing clause. In short, s.38 is vaguely drafted and causes problems
Ms Smuts (DP) articulated the view that, while s.38 may speak of rights in the Bill of Rights, this Bill is supposed to give effect to such a right. By approaching a court for relief in terms of this Bill, one is in fact seeking to redress an infringement of the right to administrative justice. She consequently saw no problem with the reference to s.38.
The Chair reiterated that there is a serious problem and questioned the need to take a chance by referring to s.38. All that was required to avoid any potential problems was a simple redrafting of the text.
Mr Lever (DP) raised the point that the original text spoke of "anyone acting in their own interest". The later versions, including the draft Bill, however use the phrase "acting in his or her own interest". He remarked that this could exclude corporate groups. He conveyed the view that "their" or "its" be reintroduced.
A small debate ensued between the Chair and Ms Smuts over whether the SALC had ever made direct reference to s.38.
The Chair then called for suggestions concerning the use of the words "its" or "their" in addition to "his or her".
He summarised the discussion of the definition of "qualified litigant": Ms Smuts (DP) prefers retaining the reference to s.38 in the option and making minor technical adjustments. The other suggestion is using wording similar to the option as it now stands, except for the substitution of the phase "acting in terms of s.7 of this Act."
Clause 2: Right to Administrative Justice
The Chair stated that he saw no reason why clause 2 should be included in the Bill; if it is absent the Bill will not lose anything.
Ms Smuts (DP) questioned the restatement of the right. She voiced the opinion that the restatement as it is worded is politically motivated. She voiced a preference for the SALC's original suggestion, Option 3. She approved of the inclusion of the phrase "must give effect to the right". The DP, however, was not averse to Option 1 and was further willing to discuss leaving out clause 2 altogether.
The Chair raised two questions: Firstly, whether restating the right diminishes the right. Secondly, if the Bill limits the right, which it does, there is a contradiction with clause 2's demand of administrators to apply the right, which is phased in an absolute manner.
Ms Smuts reiterated the point that she felt there to be political motivations behind the restatement. She pointed out that Option 3 may limit the right too much.
The Chair stated that if the Bill does limit the right too much, it is for the Constitutional Court to strike down the Act.
Mr Masutha (ANC) remarked that there were two ways in which a Bill may impact upon a right: It either expands and gives substance to a right, or it limits the right. Merely restating the right does neither and the restatement becomes superfluous. In short, retaining clause 2 was not favoured unless it could be demonstrated to have a function.
The Chair commented regarding Ms Smut's (DP) claim that the restatement was politically motivated. He was reluctant to enter a debate except to say that the Department included the restatement, and not the Cabinet as was implied by Ms Smuts.
He concluded by expressing that if something is needed, Option 1 should be used together with the existing subsection (2), or alternatively, Option 3. A further possibility is option 6, omitting clause 2 altogether.
Clause 3 - Interpretation of Act
The Chair noted that this was a problematic clause. It purports to validate and invalidate rights and freedoms conferred in terms other law. Only the Constitution has this power. Option 2 is also problematic. It requires that anything in the Common Law which is any different from this Act be amended. However, both the Constitutional Court and the SCA have said that the Constitutional right and the Common Law exist side by side, one does not override the other.
He noted that these problems resulted in the inclusion of Option 3. He stated that this option does not say much but it does away with the problem of trying to amend the Common Law.
The suggestion of the "Application Clause" (Option 5) was raised. It entails moving all the exemption clauses (4(6),5(6) and 6(6)) into this section. Further any such exemption are, in terms of Option 5(2), required to be approved by Parliament.
The Chair commented that Options 4 and 5 are similar, a difference being that Option 4 uses "in exceptional circumstances" while 5 uses "if it reasonable and justifiable in the circumstances".
Ms Smuts (DP) stated that the Constitution puts it beyond doubt that "reasonableness" is part of South African law. She stated that Option 6 is a possibility.
Regarding Option 5, Ms Smuts viewed it as a creative suggestion. She is in favour of the requirement that Parliament approve exemptions and prefers use of the words 'in exceptional circumstances".
The Chair reiterated support for an application clause. It brings to the front the fact that there are exemptions. He disagreed with Ms Smuts' views concerning the desirability of the Common Law. He commented that in time the dual systems (the Bill/Constitution and the Common Law) will merge into one.
The Chair requested that members should flag the issue of whether every exemption/permission of the Minister should be approved by parliament. He suggested that permissions should merely be tabled and objections heard.
Ms Smuts(DP) expressed a preference for Option 6, but if such a clause is to be included, Option 4 is the next best.
Clause 4 - Procedurally Fair Administrative Action
The Chair introduced clause 4 by mentioning subsection 1 and its option. He then moved to subsection 2. As it now stands, it does not give a clear indication to administrators what they should do. Option 2 is much clearer as it uses the words "must give.....", as opposed to "but includes at least...."
Subsection 3 is gives discretion to the administrator. He mentioned an earlier discussion to omit subsection 3.
Subsection 4 has a number of options, each using a different threshold for the nature of the circumstances which justify a departure from the requirements of subsection 2. The new draft (unnumbered option) includes a list of some of the factors to be taken into account. The Chair called for other suggestions.
The Chair stated that subsection 5 must either be stated here or somewhere else.
Returning to clause 4(1), the Chair questioned why the Bill omits to include the words "of any person" after the words (which vary from option to option) "adversely affects rights/interests/legitimate expectations". If this is not included, it makes it difficult to differentiate the application of clause 4 from the application of clause 5 (which applies to actions affecting the public).
Ms Smuts (DP) commented that she would consider the consequences of including the words "of any person". She voiced a concern regarding the options which omit "interests". She cited the example of applicants for a pension, who would only have an interest in receiving benefits, but who should nevertheless be given the benefit of the rights to administrative justice. These persons have a hard enough time of it without excluding interests from the scope of the Act.
The Chair stated that groups such as the Black Sash regard persons entitled to a pension and who are applicants for such pensions as having an interest in receiving a pension. However, he believed that under a new constitutional dispensation, which respects a rights culture, such an applicant has a right to a pension and would therefore fall within the scope of the Bill. He mentioned that he had requested submissions in this regard and stated that no-one had been able to provide information in support of the contention that applicants for a pension have only an interest.
Ms Smuts noted that the SALC in its final report had supported this contention.
The Chair observed that the SALC, while making this point, had merely stated it without providing any legal substantiation. He requested that if there is something which could substantiate whether a pension is a right or an interest, such information should be brought to him. He continued, saying that the Apartheid system treated pensions and the like as privileges, and this is where their being regarded as merely interests derives from. It must be that in a rights culture, people are to have rights to houses, pensions etc.
Mr Lever (DP) remarked that in his reading, he has come across a number of meanings of "interests", depending on the context. The overall objective of what is trying to be done is to provide for procedural fairness in respect of administrative action. He cautioned against the possibility of excluding a group of persons which should be entitled to procedural fairness from the ambit of the Bill. He doubted whether including the term "interests" is going to open the floodgates, rather it could act as an important safety net.
The Chair stated that it is a question of an ideological slippery slope. The legislature must be careful of tacitly sanctioning the view that people have only interests, and not rights, to benefits such as pensions.
Mr Lever (DP) stressed that this is not what he was trying to suggest and that the importance of including "interests" was that it would serve as a safety net.
Mr Masutha (ANC) remarked that including "interests" could have serious repercussions. He voiced his support for the view that a recipient to a grant which is terminated has the ability to enforce the right to this benefit. Where these rights are affected, the right to administrative justice should apply. He referred to court decisions which regarded the entitlement to grants as a right.
Mr Matthee (NNP) queried whether there are circumstances where interests are involved and if the word 'interests" is included, the state would be detrimentally affected.
The Chair summarised the issues by stating two problems if "interest" is included. Firstly, the ideological problem of identifying rights as interests. Secondly, there is a practical problem; if "interests" is included, anyone with a vague interest to anything will bring applications demanding procedural fairness.
Dr Delport (DP) commented that the problem really rests with what in fact constitutes administrative action - what exactly is it that must be procedurally fair?
Smuts (DP) stated that it is important to realise that subsections 4 & 5 allow for variations and exemptions depending on the circumstances and therefore that what is required of administrators is not all that onerous even if "interests" is included.
The Chair stated that it would be "okay" to include "interests" if a legal definition of the term is provided. However, he continued, if the concept is left open and undefined and merely included to act as a safety net, there may be consequences which are practically problematic.
Mr Masutha (ANC) indicated a willingness to enter a discussion about whether the term "interest" relates to clause 5. He raised a second issue, that of the involvement of a screening process in situations such as the administration of social security. The screening process involves the official asking a series of questions to determine if the criteria for a grant, for example, are met. The difficulty arises when millions of people go to administrative officials demanding their rights under clause 4. He expressed the need for a minimum criterion to trigger the benefits of the Bill and that should be a right which is protected by law.
13h00 - 14h00 LUNCH BREAK
The Chair reopened the discussions by suggesting that an option be included which included rights, interests, legitimate expectations, but omits "adversely affects".
Ms Smuts (DP) regarded there to be no real problem with including "adversely affects" and that Option 4 expresses the DP's position adequately. In respect of subsection 2 she preferred the wording of the draft regarding "depending on the circumstances" which is omitted from Option 2. Subsection 2, Option 2 could be used with the addition of "depending on the circumstances". This would mean having to get rid of the reference to subsection 4.
The Chair then put forward two proposals. Firstly, leaving subsection 2 as it is, but emphasising that it is clearly obligatory. Similarly, subsection 3 should be clearly indicated as being optional. Secondly, subsection 3 could be dropped. He noted that subsection 3(e) made no sense and that it would fit better under subsection 2 as is reflected in Option 2 of subsection 2.
Ms Smuts (DP) questioned whether subsection 3 could be omitted or even be regarded as purely option. She stated that there are surely certain situations where, for example, legal representation is indispensable and should be guaranteed.
The Chair emphasised that these are not rights and the availability of these options for an aggrieved party should be left to the discretion of the administrator.
Ms Smuts (DP) noted that surely the Act should encourage the availability of the avenues enumerated in subsection 3.
The Chair stated that the way it is formulated neither discourages nor encourages these avenues. They are discretionary and not a part of the right to fair procedures in other jurisdictions. He instructed Mr Labuschagne to make subsection 3 clearer that it is discretionary at the instance of the administrator.
The Chair then called for comments on subsection 4.
Ms Smuts (DP) indicated a preference for "exceptional circumstances". If this is not so then the Minister, in exempting an administrator (eg. subsection 6), must satisfy a higher threshold ("exceptional circumstances") than that which an administrator must meet (eg. "if circumstances justify it"). She also felt that in the first option of subsection 4(b), factor (v) should read "any relevant factor" instead of " factors which the administrator considers relevant". Otherwise, an administrator could consider a hangover a relevant factor.
The Chair pointed out that these exceptions take place on a case by case basis, unlike the ministerial exemptions which apply to a whole group or class of actions. This explained the different thresholds.
He continued by drawing attention to the possibilities raised in option 2 of subsection 4, those of "necessary/ reasonably necessary". He concurred with Ms Smuts regarding reformulating subsection 4(b)(v) to read "any other relevant factors", noting that it was probably best left to the court to decide what is relevant.
Dr Delport (DP) brought up a repetition of the phrase "relevant factor". It is used both in the introduction to 4(b) and in 4(b)(v).
The Chair accepted this and suggested omitting 4(b)(v). He noted that it was merely a question of drafting.
Ms Chohan-Khota (ANC) expressed reservations regarding 4(b)(ii) - "the urgency of taking the administrative action".
The Chair suggest using "the urgency of the matter" thereby including more than just positive action. He observed that these are factors under the heading of "including" - the list is not closed. Therefore, if 4(b)(iii) is omitted, it is not the end of the world.
The Chair then moved on to subsection 5 - the "fair but different" provision. Any other law providing for a different procedure must be demonstrated to be constitutional and fair. He invited further comments regarding this provision. there were none.
Attention was then drawn to subsection 6. The Chair said that this had been discussed earlier under the "application clause" (clause 3).
Clause 5 - Administrative Action Affecting the Public
The Chair opened the discussion by stating that this clause was formulated peculiarly and this was admitted by the SALC. There are now a number of options. The SALC option is now Option 2. He enquired whether the words "materially affected' were added by the SALC.
Ms Smuts (DP) indicated that they were.
The Chair expressed a personal reservation and difficulty regarding the notion of a legitimate expectation of the public, this concept being present in Options 2 & 4. He doubted whether the public can have a legitimate expectation.
He voiced a concern using an example: The building of low-cost housing next to a suburb. The suburb-dwellers have an interest in property prices. The administrator decides to use a public enquiry. The Chair's concern was that after the enquiry is properly carried out, an individual may come forward and claim the individual rights under clause 4. This would undermine what clause 5 is trying to achieve. A notice and comment procedure, for example, is meant to take the place of individual rights to a hearing etc. when the public is affected. ie. The relationship between clauses 4 & 5 requires clarity.
Mr de Lange stated that the solution lay in the notion of what constitutes "adequate notice" etc. Possibly a notice in a newspaper could constitute adequate notice.
The Chair was not satisfied with this solution.
Mr Masutha's (ANC) view was that when a person bears a right together with others who may be geographically identified, this does not mean that a person affected should not be able to enforce individual rights together with those of the group. Where rights are affected, individuals should be able to be protected under clause 4. He stated that clause 5 is really bordering on the area of interests and not rights. If what is being contemplated is a more responsible procedure when peoples' interests are affected, clause 5 facilitates this by providing for better consultation. He suggested possibly cutting out the more onerous provisions.
Mr Matthee (NNP) cited the example of a Parole Board decision regarding whether to allow a prisoner to be released. He opined that the public certainly have an interest or right in respect of this administrative action. He queries whether this would be a right or an interest.
The Chair stated that this would at most be an interest. There are rights which arise in these sorts of situations in other countries, but only when specific statutes provide the right to a hearing, for example. He expressed his uncertainty concerning the present position with regard to recent South African statutes. The only situation he could cite was the specific situation where a court has a "right" to consider the matter before a person goes free in terms of the Correctional Services Amendment Act. He mentioned that the matter was now before the SALC. He also expressed uncertainty over the rights of the public in other jurisdictions.
Mr Masutha (ANC) could not see how a member of the public would have a right to keeping a person in jail. This would be stretching the notion of a right. If it is a right, it is a limited right. He commented that 1st and 2nd generation rights are individual rights whereas 3rd generation rights are group rights. These are, however, rights and not interests. In any event, interests are not rights.
Ms Chohon Khota (ANC) was impressed by the arguments concerning interests. She emphasised that it was precisely 3rd generation rights which clause 5 should protect. It is these rights which accrue, not interests. She stated that it is not possible for these procedures to be taken seriously if they are to be followed in every decision affecting the public. She cited an example illustrating the problem: The Reserve Bank raising interests rates. Interests of almost the whole population are affected and yet it would be problematic to hold a public enquiry. Therefore, clause 5 should deal with rights, particularly 3rd generation rights and not interests. She remarked that the clause should provide a formula for administrators to implement these rights.
Mr Masutha (ANC) remarked that this was an area which involved the thin line between law and politics. The fact that some of the concepts present in 5 are going to be made law may need to be revisited as they are political issues. Some of these things (including issues relating to interests) may be dealt with better outside the field of administrative law. The focus here, he concluded, should be on rights.
The Chair was anxious about including interests as this may involve budgetary concerns. Although including "interests" here is less problematic than including it in clause 4, it is still a problem. Both clauses share the same difficulty in that "interest' is undefined.
Ms Smuts (DP) remarked that if the words "materially and" are added to "adversely affects", this narrows the scope of the Bill. She questioned whether there was a problem here. She continued and remarked that perhaps the day to day application of procedural fairness by administrative bodies at present is more advanced that is being assumed. Certain bodies already apply a high level of participation and other principles of administrative justice. Therefore, the inclusion of "interests" may not have the dramatic effect which is feared. It was suggested that it should therefore be included, especially since the inclusion of "materially" could narrow the scope of the Bill.
The Chair agreed that in certain respects, the acceptance and application of the principles of administrative justice are further developed than is sometimes accepted.
Mr Molewa (ANC) remarked on the numerous angles from which the words "interests" and "rights" could be approached.
The controversial and problematic issues around interests, rights and legitimate expectations were focused on as well as the right to be given written reasons. The presumption in section 6(3), and its reconciliation with the exception in 6(4) and the potential problems associated with "adequate reasons" were all thrashed out probably for the last time before voting next week.
The debate around the interests, rights and legitimate expectations continued.
Prof Mabeta (UDM) said that there were instances where rights could be defined in terms of interests. He believed that the confusion between rights and interests impacted more on certain kinds of societies such as rural, communal land-based ones.
Mr L Lever (DP) (North-West) was concerned about legitimate expectation in the public sphere. The Chair said this would be covered under section 4.
Mr L Lever disagreed and said that section 4 would apply to individual rights in single cases. He doubted whether legitimate expectations in the public sphere would be covered. If one lived a block away from where a new highway was to be built, then an individual right would not be involved though one would have the legitimate expectation to have public consultation - which would be more appropriate under section 5.
Adv De Lange said that in terms of section 5 there is a discretion available to the administrator. There could thus be no talk of a legitimate expectation in view of this discretion.
Mr M Masutha (ANC) said that case law had narrowed the application to legitimate expectation. If the committee wished to expand the notion of legitimate expectation it had to give more substance to it by extending the meaning through a definition.
Adv De Lange said that in relation to "executing authority", it would be replaced by administrator. He said that he was aware that Mr Masutha had some input to make on "executing authority".
Mr Masutha proceeded to focus on the definition of executing authority, touched on earlier in the morning session. In the definitions section under option 2 it was noted that "executing authority" was divided into 3 categories. He said that whilst (b) and (c) were merely of academic consequence, (a) applied in the public sphere. Given that in the public sphere an administrator could either be the Head of Department (HOD), Director General (DG) or even the executing authority itself, when engaging with the public in respect of official decisions, it should be the Minister who takes this responsibility and not the HOD or DG.
Ms F Chohan-Khota (ANC) disagreed. She said that it was not the sole propriety of the political head to consult with the public.
Adv J De Lange moved on to section 5(2) and 5(3). He found these subsections rather odd since they set out in some detail only one form public hearings, public enquiries and notice and comment procedures may take. Whilst there was no time to start amending these sections now, he said that he would have given more flexibility to these sections.
Section 6 Reasons For Administrative Action
Option 1 is the only new option.
Ms D Smuts (DP): With regard to the furnishing of reasons for decisions the scope is already so narrow, why narrow it further by including "materially and adversely affected" in Option1?
Adv J De Lange said that people could not expect reasons for all administrative action therefore "materially and adversely affected" in Option1 was used as a threshold. In Germany the concept of "direct external legal effect" was used and in Australia the development of the jurisprudence around "decision" was used to guide them.
Ms P Jana (ANC) said that the right to be given reasons existed in the Constitution. Why did everyone therefore have to ask for reasons to be given before they were supplied?
Adv J De Lange said that it would not be viable for people to have written reasons given for every single decision taken by an administrator. This would be ridiculous. The public administration and indeed the country would grind to a halt. For one, the costs involved in such an exercise would be astronomical. Ms Jana was invited to point out any country in the world which followed such a system.
Mr Johan De Lange of the drafters demonstrated the astronomical costs of such a venture by pointing out that the invitations for public comment on Bills in parliament already ran into thousands of rands only for postage stamps.
Ms D Smuts (DP) said in the interests of an open and transparent public administration there should merely be a minimum threshold for which reasons should automatically be given. This would make administrators apply their minds and function better.
Mr M Masutha (ANC) recalled that while working as a lawyer for the Department of Welfare, he had had to prepare a legal opinion which had taken a week to achieve to provide the legal basis for a certain administrative action. This experience demonstrated that it would be totally unacceptable to expect an administrator to give reasons together with the legal basis for a decision. In many cases a simple indication of what the basis is would suffice; for example, no citizenship, no grant.
Ms F Chohan Khotha (ANC) said she supported the "ticking of boxes" [ticking the relevant reason from a given list on a pre-printed form] by clerks. This could however cause possible problems with the need for "adequate reasons".
Adv De Lange (ANC) did not have a problem with "adequate reasons" since this wording was included to create a culture of supplying reasons.
Ms Chohan Khotha felt that in departments where the ticking of boxes had become a practice, it would have to be re-visited to see whether this was in fact "adequate".
Dr J Delport (DP) said that the only "adequate reasons" would be "good reasons" based on rules. Therefore there had to be a legal basis.
Adv De Lange (ANC) went on to 6(3) and (4). He was worried about how they would operate together. He could not read them separately from each other. Why should there be a presumption created in (3) when in terms of (4) the administrator was entitled not to give reasons.
Mr L Lever (DP; North West) said that in court an administrator would in any event have to justify why a case fell into the exceptional circumstances of 6(4). The presumption in 6(3) would not have a major effect.
Adv De Lange (ANC) said that in court the parties would indeed argue about where the onus lay and therefore who was defending and who was not. This situation was therefore problematic.
Ms Chohan Khotha asked whether it could be inserted that when an administrator acted under 6(4) he had to state that he was doing so. If this was not a requirement then the Administrator could simply say nothing and the applicant would be in the dark .
Mr J Jeffrey (ANC) said that if one invoked 6(4) there had to be reasons for doing so. He wondered what reasons would have to be given in this regard.
Mr J De Lange, one of the drafters, said that the Open Democracy Bill would
have to be looked at to answer this question.
Mr J Jeffrey (ANC) said that if 6(4)(b) is included then the reasons for invoking 4 must be included in 6(4)(b).
Adv De Lange summed up the basic feeling of most of the members around this suggestion by saying that it would amount to giving reasons for not giving reasons! This was just not going to work.
Finally under 6(6), in Option 1 there is a new subsection (6)(c). Adv De Lange said that it was a " right to know" type clause.
Mr J Jeffrey (ANC) said that if this section was attempting to strike the balance between having to furnish reasons per se and where needed, then the Minister should not have to wait for the administrator's request as was the case with option 1(6)(c).
Adv De Lange concluded by saying that the rest of section 6 was straight-forward and simply needed members to select their options at voting time. The meeting was adjourned.
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