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JUSTICE AND CONSTITUTIONAL AFFAIRS PORTFOLIO COMMITTEE; SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
11 JANUARY 2000
DELIBERATIONS ON ADMINISTRATIVE JUSTICE BILL [B56-99]
Documents handed out
Working Draft of Bill as of 15/12/99 (AJU 67)
The committee completed discussing the revised bill. The drafters will prepare a final draft of the Bill incorporating all the amendments suggested by members in the last few meetings. This will be completed by Friday 14 January 2000 and will be voted in the following week.
Most of the debate in the morning session revolved around Clause 7 - the grounds of review. The Chair emphasised that these are review and not appeal grounds. The key area of controversy was the constitutional requirement for "reasonable" administrative action and how far this concept should extend. The question was whether the Common Law review ground of "gross unreasonableness" should be retained or whether the SALC's suggestion (clause 7(1)(g)), which all conceded goes very far, should be adopted. The various options were discussed. The DP was not in favour of retaining the Common Law position and felt that this could be an unjustified infringement of the right to just administrative action. The DP would like to see reasonableness as a requirement of both the administrative action itself and the effects of such action. The Chair noted that if the Common Law position is retained, it is for the Constitutional Court to decide whether it is an unjustified infringement of the right. He voiced a preference for relating reasonableness only to the administrative action itself and not to its effects. The latter allows the court to go too far into the merits and to make political decisions which was not desired.
Disputes arose concerning the definitions in clause 7(2). It was doubted whether the envisaged Code to accompany the Act will have binding legal effect (which the Chair regarded as desirable) if the Bill is phrased as it is worded at present.
Not too much new discussion took place around the other clauses and only a few amendments to some options were suggested.
The Chair stated there was only today (11/1) left to get through the working document and that the committee would sit until it was finished. He noted that the more controversial issues had been dealt with and therefore that things should move quicker.
Clause 7 - Grounds of Review
The Chair articulated that these grounds are not part of the right. All s.33 of the Constitution says is that review of administrative action by the courts must be provided for. Consequently, the Bill did not necessarily need to list the grounds of review. The Bill should assist administrators. He stated that he had not fully researched whether these grounds go further than the Common Law. He emphasised that these grounds are not appeal grounds. Rather, they are there to make sure that procedures are followed, not to facilitate the court's substituting its own decision for that of the administrator. This is the South African legal position. He referred to the SALC document from the early 90's on the review of administrative action which highlights this point.
The Chair observed that the only controversial issue in clause 7 is that of "unreasonableness" which has always been a tricky issue in South African law. He stated that the test of unreasonableness has only been accepted in one area of South African law, that being delegated legislation (following the English case of Cruise v Johnson). Even so, this has not really been expanded in South African law. He noted that the view has been put forward that the Constitution has imported the concept of unreasonableness to all areas of administrative law, rather than only being applicable to procedural fairness.
The issues to be grappled with include considering whether to retain the Common Law position and whether, if reasonableness is used, how far it should extend. The Chair commented that the SALC suggestion goes very far and therefore alternative options have been included.
Option 1 states the Common Law as it stands by using the concept "grossly unreasonable".
Option 2 is used in Australia and other countries. In this Option, reasonableness is related to the reasonable person test. this allows the court in each case to decide what a reasonable person would have done in the circumstances of the administrator.
Option 3 related reasonableness to rationality.
Option 4 calls for (g) to be omitted. This would exclude even the "gross unreasonableness" concept of the Common Law.
The Chair then called for some debate, the main question being whether the wordings of the options regarding (g) were satisfactory. The other grounds are generally unproblematic, however, the committee - influenced by Australian Law - has added a further ground, (i) (concerning administrative action which constitutes a failure to take a decision).
Clause 7(2) contains problems which have been raised, especially the definition of "empowering provision". The definition of "law" is novel and would result in an amendment of the Interpretation Act. The Chair felt that a definition of "empowering provision" was not necessary as it would be quite clear from where the administrator derived his/her authority. The definition of "law" includes "empowering provision". An empowering provision could include agreements or company constitutions. Thus these agreements would be treated as law which is problematic. Consequently the various option have been included, including deleting the entire subclause or certain aspects of it.
Regarding the definition of "relevant consideration", the Chair noted that there had been strong objections including the use of the phase "alternatives to the administrative action".
Mr Lever (DP) noted that what was being done here was novel and did go further than other jurisdictions. He turned to subclause 2 first as he believed it to be easier to deal with. He was happy to do away with the definition of 'empowering provision" and was amenable to altering the definition of "law". He observed that the difficulties arose out of the drafters' attempt to give horizontal effect to the Bill. However, he expressed the view that the definition of "relevant considerations' should remain. He remarked that when it comes to assessing the reasonableness of the action, use of the notion of "alternative considerations" is necessary.
The Chair turned again to the definition of "law" and questioned why the drafters needed to say that law included this Act. He suggested that this is obvious - the Act and the Code of good administrative conduct to accompany the Act will clearly be law. It is desirable that the Code should have legal effect. The regulations (clause 11) require the drafting of this Code within 2 years.
Mr Lever (DP) stated that it is not entirely obvious that the Code will have legal effect. Clause 11(1)(e) merely calls upon the Minister to formulate and publish a code and this wording does not make it clear that the code will have the force of law. He suggested that the Code could be made a regulation which would give it legal effect. If the Code is not a regulation per se, it is not law. It is rather an advisory document.
The Chair stated that the wording of 11(1)(e) does seem to indicate that the formulation of a code would be part of the process of drawing up regulations and that as a regulation, it would be law.
Mr de Lange remarked that in his experience, a code is enforceable law. However, he did agree that there could be a reworking of the wording of the regulation clause (clause 11).
Mr Lever cited the example of the Public Service Code which he believed not to have the force of law.
Mr Masutha (ANC) observed that in his experience codes did not have legal effect. They only served an interpretative function. Furthermore, if they contradict the statute, they are unenforceable. He cited the examples of the Employment Equity Act and the Labour Relations Act.
The Chair asked whether the LRA itself states that its code merely constitutes a guide.
Mr Masutha responded that it did. Codes are there to offer guidance. The fact that they are drafted loosely and simplistically indicates that they do not have the force of law, as laws are required to be precisely formulated.
The Chair queried what effect the Code will have with the Bill drafted the way it is.
Mr Masutha stated that he was inclined to agree with Mr. Lever that the Act is not defined as including the Code and therefore that the Code will not have legal effect.
The Chair directed Mr de Lange to investigate this and to draft 2 options. The first is to alter the definition of "law" to mean what it means according to the Interpretation Act and to include the Code as law. The second option is to delete the definition of "law". He continued by saying that if an Act itself says that a code is a guide (as in the LRA), then it must clearly be a guide. However, this Bill does not say this. Furthermore, both the Department and the Minister believe the Code will be law.
Mr de Lange commentated that the only question is whether a contravention of the Code should constitute a ground of review. He suggested including an addition to clause 7(f)(i) which would read something like: "the action itself - is in contravention of a law including the Code".
The Chair added to this and suggested an alternative of defining "law" to include the Code. The original clause 7(f)(i) would remain "if the action itself - is in contravention of a law." This read together with the definition of "law" (which would include the Code) would make the contravention of the code a ground of review.
Mr Lever expressed the view that the a contravention of the Code is more than a ground of review. It is also a guide to administrators, for example regarding internal procedures.
The Chair invited any other views on clause 7(2). There were none and he invited Mr Lever to discuss clause 7(1).
Mr Lever expressed his satisfaction with clause 7(1) as originally formulated, including the controversial 7(1)(g) -"unreasonableness". He stated that, although he wanted to avoid using rhetoric, using the concept of "gross unreasonableness" harks back to the days when this concept was used to restrict freedoms. The Bill is an attempt to move away from the past position and rather to provide for the fair and just treatment of people. He remarked that unreasonableness is not limited in its application to procedural fairness. He continued by stating that reasonableness should be a requirement of the administrative act itself and not merely of the effect of the act. However, he concluded, he could live with the reference to effect only, as it now stands. His preference would be for the original version, failing which he favoured Option 3.
The Chair expressed concerns about Option 3. Clause 7(1)(f)(iii) already deals with rationality. He expressed that he himself was at a disadvantage, not having read the Soobramoney judgment, and was not sure how rationality and unreasonableness connected to each other. He restated that if Option 4 is opted for, this would be a step backwards as it does not even include gross unreasonableness. He stated that he was not aware of any jurisdictions which go as far as the SALC's original draft, but that many jurisdictions, including Australia, go as far as Option 2.
Mr Lever suggested that if clause 7(1)(g) is to be omitted then a forth subsubsection could be added to subsection (f) which would read something like "7(1)(f) the action itself - (iv) is unreasonable".
The Chair asked whether the members had anything to add.
Mr Matthee (NNP) expressed the view that as far as the interpretation of s.33(1) of the Constitution is concerned, "reasonable" does not only refer to procedural fairness. He expressed his preference for Option 1 with the omission of "effect of the". ie. It is a question of whether the action is unreasonable. He doubted whether reasonableness could be limited to "gross unreasonableness" as this may not meet the Constitution's requirements. The Constitution speaks only of "reasonable".
Mr de Lange stated that he would be happy if "unreasonable" is used.
The Chair noted that not many cases decided under the Common Law had been won on the grounds of "gross unreasonableness". If "gross unreasonableness" is used, the question becomes whether this is a justifiable limitation of the constitutional right. International jurisprudence would have to be looked at to see how much limitation can justifiably be placed on the concept of "reasonable".
Ms Jana (ANC) addressed the question of clause 7(1)(g) by suggesting that (g)(i) & (ii) be omitted, leaving just (g). She noted, however, that (g)(i) & (ii) would give guidance to the courts. Whatever is decided, she urged that "reasonableness" must be included as a ground and that (g) in some form should be included.
The Chair remarked that everyone has conceded that (g) goes very far. The central question is whether the Common Law concept of "gross unreasonableness" is to be retained. If the Bill is to go further than the Common Law, is the term to be used "reasonable", without any qualification? If this occurs, this gives the courts a carte blanche - it is a neutral term for the court to interpret.
Ms Jana pointed out that (g) is concerned with the effects of administrative action.
The Chair stated that this surely is not a suggestion that courts should be given an appeal jurisdiction. He stated that this cannot be the case.
Ms Taljaard (DP) drew the members' attention to developments in Canada where reasonableness is becoming an important ground of review. She noted the Canadian Supreme Court decision of Southam  1 SCR 748.
Dr Delport, while stating that he was trying to avoid argument about the interpretation of the Constitution, what s.33 says cannot be avoided. What is trying to be done is not an expansion or limitation of the constitutional right but an attempt to give effect to it. The Constitution requires administrative action which is reasonable. He remarked that the limitations clause of the Constitution (s.36) should not be used to prevent a remedy for an aggrieved party if the administrative action is only unreasonable, but not sufficiently unreasonable to be grossly unreasonable.
The Chair disagreed. The Bill is not giving effect to the limitations clause. It is for the Constitutional Court to decide whether "grossly unreasonable" is a justifiable limitation on the right. He believed that when the Court interprets the Act it will look at both the Common Law and international Law. Just because the word reasonable appears in the constitutional text does not mean that it cannot be limited.
Dr Delport noted that there is no reason to limit "reasonable".
Mr Smith (IFP) drew attention to the fact that there are two considerations: Firstly, whether the action is unreasonable, and secondly, whether the effect of the action is unreasonable. Some of the Options propose omitting "the effect" and inquire into the action itself only. If this is done, (g) may as well be put as an additional subsubclause under (f). He noted that it was not clear whether Option 2 was concerned with the action itself or the effect of the action. Option 3, however, clearly related to the efeect of the action.
The Chair remarked that Option 1 (with the deletion of "effect of the") could be included under (f). Consequently, if Option 1 is chosen, there is no need for (g) as a separate subclause.
Ms Jana remarked that "the effect" is needed.
The Chair enunciated that "the effect" is not needed. The ANC is opposed to the inclusion of "the effect" - it goes too far towards an appeal ground.
Mr Smith remarked that if an action is regarded as unfair, this is deduced from the effect of the action. He noted that it was difficult to conceive of an unfair action which does not have an unfair effect.
The Chair emphasised that there was a distinction. Looking at the effects of an action requires going into the politics and the merits. If the courts are permitted to consider the effects, this empowers the courts to make political decisions. He reiterated that by using the words "the effects" here, an evaluation of the action begins to become an appeal. He conceded that both (f) & (g) empower the courts to look at some of the fall-out of an action, but (g) as it now stands allows the courts to substitute their own opinions for those of the administrator.
Mr Matthee remarked that if one looks at s.33(3) of the Constitution, legislation is required to give effect to the rights in ss.33(1) & (2). The legislation should take the rights as they stand. As they stand, the word "reasonable" is used, not "grossly unreasonable". When the legislation is drafted, he stated, it is to give effect to the rights - the rights should not be in a limited form. the limitations clause is used later in the interpretation of the legislation.
Mr. de Lange observed that, while legislation is to give effect to the right, the right is not unlimited. He noted that a general right is being dealt with and that the limitations clause comes into play when Parliament is dealing with limitations. However, using "grossly unreasonable" puts a general limitation on the right, and to place such a general limitation on the right may amount to a constitutional amendment.
The Chair stated that he did not follow this line of reasoning and that he disagreed. Rights can be limited.
Mr. de Lange articulated that he understood the Chair's point of view.
The Chair read out the limitations clause of the Constitution (s.36) and mentioned the Constitutional Court's approach to the clause. He stated that the argument that a right cannot be limited in a general way is incorrect. The question is where the line is to be drawn - at what point does the limitation become unjustifiable - and does using "grossly unreasonable" go to far?
Mr de Lange used the bail law example to illustrate that the rights preventing detention without trial are justifiably limited by specific limitations warranted by special circumstances.
Mr Masutha returned to the earlier suggestions concerning accommodating "unreasonable" under clause 7(1)(f). He stated that this would amenable to his understanding of s.33 of the Constitution. S.33 does not deal with the effects of the action. The Constitution does not go as far as clause 7(g) does in its present state. He supported the Chair in believing that there is a clear distinction between an action and the effects of an action.
Using the bail example, Mr Masutha noted that the issue in respect of a bail application was not a consideration of the impact of the decision on the bail applicant. Rather, what needs to be considered by a court is the decision (action) of the official - did he/she consider the seriousness of the crime etc.
Mr Masutha raised a fresh issue, that of clause 7(e)(iv) - an action taken "because of too rigid an adherence to a fixed standard". This, he stated, must be balanced against the need to maintain standards. The flexibility of standards should be guarded against as this would not promote fairness. Consequently, he proposed an additional clause which would promote the maintenance of standards.
The Chair noted an additional problem: They way the Bill is drafted at present does not address rules and standards.
Dr Delport remarked that in terms of s.33(3), the main task of the legislature is to provide a remedy - a court action - to protect the right to lawful and reasonable administrative action. He stated that an action cannot be divorced from a decision and that a procedure must be provided for just administrative action. He continued by saying that what is being suggested is strange: people will only be able to complain if administrative action is grossly unreasonable. The right. however, says all are entitled to reasonable action. Using "grossly unreasonable" expects people to be satisfied with administrative action which is less than reasonable. He concluded that using "grossly unreasonable" limits access to the courts as well as limiting the right. This, he stated, was out of line with the limitations clause.
Mr Jeffery (ANC) commented that the essence of this debate is surely establishing the distinction between appeal and review. Appeal is about the merits while review is about procedures - whether the correct procedures were followed. The Bill must fit in with the definition of review. He raised the point made by Budlender et al that the courts should not be allowed to get into the merits and make political decisions. The Constitution speaks of review, he said, and the Bill should be making it clear to the courts that South African law is sticking to the position that the courts are to review administrative action and are not to go into the merits.
The Chair remarked that it must be remembered that the grounds of review are not required to be included in the Act. All that is required is that the courts must be able to review administrative action. If the grounds are left out, he stated, the Bill will still be constitutional. He concluded that if the grounds are left out, the Common Law grounds will remain to be developed by the courts.
Mr. de Lange declared that the Bill would suffice without clause 7.
Mr Lever (DP) in reaction to Mr Jeffery stated his opinion that an argument could be made that the opening for the courts to get into the merits is created through using the word "the effect" (of the administrative action). The word "unreasonable" does not necessarily open the door to investigating the merits. Furthermore, appeal and review cannot be completely divorced.
Mr Lever returned to Mr Masutha's point regarding clause 7(1)(e)(iv). He noted that there was already a balance created through the use of the word "too" (which precedes rigid an adherence.....). This clause is an attempt to guard against an administrator failing to apply his/her mind to an issue and saying that she/he is simply applying a law.
The Chair pointed out that Mr Lever had earlier said that the Code should be binding law. However, he continued, now Mr Lever seems to be saying that standards are to be applied according to the particular facts or circumstances and should not be applied too rigidly. There was an apparent contradiction here.
Mr Lever responded that this goes to the positivist/rights - based approach debate. The Code should assist administrators to know what they should be doing and should help people know whether they have grounds for review. Clause 7(1)(e)(iv), he continued, is to be used where the Act "runs out" and to avoid the administrator in these circumstances saying "the Act goes so far and I am not going to apply my mind to these circumstances where the Act runs out". Mr Lever added that this is another reason why reasonableness is required. While he emphasised that the action cannot be divorced from its effect, he stated that if reasonableness is included under clause 7(1)(f), this could facilitate the result that adherence to a standard should be reasonable.
Mr Smith expressed some confusion with earlier suggestions: The Constitution says that administrative action is to be reasonable and procedurally fair. These are two separate concepts. If reasonableness is only going to relate to procedural fairness, as was suggested, reasonableness as a separate concept is not being given a role.
The Chair responded by saying that clauses 4 & 5 deal with procedural fairness, while clause 7 deals with reasonableness.
Mr Smith questioned the extent to which reasonableness was being given effect to separately.
The Chair stated that it did not have to be given effect to separately; It is a concept which runs across the whole area of administrative action. All that is required is to say that the courts have the power to review. When the courts look at the grounds of review, he continued, the concept of reasonableness must permeate them.
Mr Smith reiterated his confusion: Legislation must give effect to the obligation to provide for reasonable action.
The Chair stated that nowhere in the world was there a concept of procedural reasonableness. Reasonableness must run through the procedures provided for. He stated further that reasonableness was aground of review which has been developed to different degrees in different countries.
Mr Smith suggested that the Code could deal with reasonableness and added that perhaps reasonableness could go to the merits.
The Chair stated that reasonableness and lawfulness were to permeate the whole of administrative justice and that there was no need to create a procedure called reasonableness.
Dr Delport reiterated that access to the courts was necessary to protect rights. He noted that the committee is not limited by the Constitution to providing for a review procedure. The committee could provide for reviews and appeals, the appeal procedure applying where a decision is unreasonable. He added that to an extent, review does go to the merits. He cited an example of an administrator not applying his/her mind. This is a Common Law ground of review and involves assessing whether the administrator dealt with factors which were relevant. In such cases, he noted, the court is looking at the merits.
The Chair stated that merits in this context does not mean that the Court is to substitute its view when an official is given a discretion. A decision should only be set aside when a prescribed procedure is not followed. Merits here, he continued, means that even if the Court thinks that the decision is wrong, but the procedures are followed, the Court cannot substitute its decision for that of the administrator. This is why words such as "alternatives" (clause 7(2)) and "less restrictive means" (clause 7(1)(g)(ii)) are problematic. These words authorise substituting the Court's opinion.
Dr Delport concluded that all that was being argued for was the retention of "if the effect of the action is unreasonable".
The Chair stated that he had no problems with understanding this argument.
Mr Masutha voiced his agreement with the Chair: All that must be asked is whether the administrator did what was required, not whether it was the best decision. He returned to the question of whether unreasonableness should be restricted to the action itself or should extend to the consequences of the action. He noted that if the latter is opted for, the issues move into the realm of politics where resolution cannot be achieved through legal means. He concluded by saying that both 7(1)(b) & (f) are ample provisions regarding unreasonableness and that including unreasonableness under clause 7(1)(f) would be sufficient.
The Chair raised again the problem that if unreasonableness is so included under clause 7(1)(f), it is present in an unqualified manner - it is given an open and unfettered meaning. However, he did agree that relating unreasonableness to the action itself was preferred over relating it to the effects of the action.
The Chair resumed by remarking that the issue had been exhausted and that the debates have not really changed the wording of the various options, except for Mr Lever's suggestion to move "reasonable" to clause 7(1)(f).
Mr Smith returned to the question of the Code and questioned the assumption that it should be part of the law. He suggested that it need not be.
The Chair stated that it was clear that the drafters did not think that it was to be part of the law. He noted that if it is to be binding then there will be a conflict between a binding code and the difficulty of avoiding rigidly applying standards (which clause 7(10(e)(iv) calls for). The two options for the definition of "law" cater for both views. the first option is that the code will be law, and the second option is that it will not. He stated that nothing more concerning the Code should be raised at this point. He suggested that Mr. Lever should read the judgments of the Soobramoney case and Premier Mpumalanga.
Clause 8 - Procedure for Review
The chair began with clause 8(10 and the word "qualified litigant". This is the only part of the Bill where the definition of this term becomes relevant. He noted the suggestion that the 180 day period be abandoned to allow for the Common Law concept of "reasonable period". He also noted that there were other submissions that the 180 day period should remain and that this is not as restrictive as it seems; The Bill makes provision for the Court to extend this period depending on the circumstances.
In support of retaining the 180 day period, the Chair stated that with a right to administrative justice, there must be some sort of cut-off point for the bringing of an application for review. This is necessary to prevent the constant presence of a sword hanging over an administrator's head. He reminded the members that the Common Law and the Constitution/ this Bill exist side by side and therefore that the 180 day period would therefore only apply when an application was brought in terms of the Bill. Where an application was brought under the Common Law, the Common Law concept of "reasonable time" would still apply.
Turning to the Option, the Chair observed that this introduces the Australian procedure.
Mr de Lange concurred that this was very close to the Australian version. Subsection 2(b) applies where no law provides for a period for the administrator to make a decision. Subsection 3(b) applies where a period is provided for and subsection 4 concerns the internal remedies issue.
The Chair observed that subsection 4 is a separate issue and turned to subsection 2. He noted that reasonableness is brought in here regarding the time period in which the decision must be taken. He then inquired whether there were any difficulties.
Mr Jeffery queried what a Court would be asked to do if no decision has been taken within the required period. Will the Court be able to force an administrator to make a decision?
The Chair stated that failing to make a decision within the required time period will give rise to a ground of review, and if successful the remedies section (clause 9) would come into play. He drew particular attention to the proposed clause 9(2)(a) which empowers a court to compel the taking of a decision.
The Chair remarked that clause 8 is perhaps the most important clause. He cited the Black Sash and Human Rights Commission's submissions that the most significant practical problem regarding administrative justice is the failure by administrators to make decisions.
Mr Masutha inquired where the distinction lay between the compelling of an administrator to make a decision on review grounds and the remedy of a mandamus.
The Chair explained that the mandamus is still available and that the two remedies may be used in the alternative.
The Chair moved to clause 8(4) which he regarded as the most complicated subsection. He suggested adding the words "in terms of this act" to the end of the subsection. He expressed his lack of clarity regarding whether this subsection applies to, for example, the internal procedures and processes of the South African Revenue Services (SARS). He raised the question of whether the processes set down in other statutes are to be exhausted before action could be taken in terms of the Bill. He requested Mr de Lange to look at this and that Mr Haysom should be consulted.
Mr Masutha expressed his understanding to be that until now the approach of the courts has been that where a statute empowers an official to make a decision, and this power is delegated, the decision has not been taken (and therefore cannot be reviewed) unless the person nominated by the statute has taken the decision. What should be ensured is that internal appeals procedures are first exhausted.
The Chair remarked that unintended consequences are not desired and that SARS may have to be dealt with separately.
Mr Smith, while conceding that he could not clearly remember Mr Haysom's address, stated that, regarding SARS, there is no decision until the final assessment is made. The internal deliberations which take place between submitting a return and the ultimate assessment are not decisions.
The Chair cautioned that the Act may allow for these deliberations to be classified as administrative action and therefore capable of being challenged. This would be impracticable - each of the "10 million" taxpayers would be entitled to a hearing at every step of the way.
Mr Lever expressed concerns that having to wait until the final decision is made and all internal procedures have been exhausted before there can be a review may result in unfairness. He cited the example of a bank requiring permission to make an investment overseas. This may be a case of urgency, where it would be too lengthy for the internal procedures to be exhausted, He stated that waiting this long could have negative consequences for the bank and the country. He therefore suggested an additional section to cater for matters of urgency. He concluded by saying that while Clause 8 may be the heart of the Bill, clause 8(4) threatens to rip it out.
The Chair suggested that a way of getting around each step of the process attracting the requirements of administrative justice would be for SARS to apply for Ministerial exemption in terms of clauses 4(6) and 5(6).
Mr Jeffery expressed his dissatisfaction with the words "the court may direct" in clause 8(4). This section deals with the processes to be followed but these words imply that the issue has already gone to court. He suggested that the process should be firstly, that internal procedures must be followed, and then only when a matter is challenged, the court may authorise that these procedures be bypassed when circumstances demand it.
Mr Masutha restated his point and remarked that, if he understood Mr Haysom correctly, most government departments behave the same: There is a first assessment stage which happens at a delegated level. The statute would however say that, for example, the Receiver must make the assessment. It is only once the person nominated by the statute (eg. the Receiver him/herself) has him/herself decided the issue that the decision should be able to be challenged under the Bill. The disputed action/decision should be brought to the attention of the bearer of the responsibility (the person nominated in the statute) and he/she should be given the opportunity to apply his/her mind.
Mr. Smith argued that it should be mandatory to follow internal procedures unless it is in the interests of justice to bypass them.
[2 documents were handed out: 1) Notes on Judicial Review from the University of Wolverhampton, and 2) Judicial Review by John Hall et al. Ms Taljaard drew the members attention to p6 of the second document which lists, and gives a brief note, on cases dealing with reasonableness.]
Ms Jana expressed reservation about whether a mandatory compulsion to exhaust internal procedures could be inserted. The right to be able to go to court is an inherent constitutional right.
The Chair argued that such a compulsion would not prevent a party going to court, it would only delay going to court until the internal remedies had been exhausted.
The Chair concluded that clauses 8(5),(6) & (7) were not really problematic. Clause 8(6) provides that parliament is to approve the legislation of the Rules Board so as not to undermine what is trying to be achieved. Clause 8(7) provides for the period until Magistrates' Courts have been nominated to deal with administrative review. Until such time litigants may approach only the High Court or the Constitutional Court.
Adv De Lange told the committee that a certain newspaper had quoted him as saying that the Bills which have to be passed by 4 February 2000 are all being "rushed through parliament" and parliament was in fact passing half-baked Bills. He categorically denied ever stating this and asked the journalist responsible to refrain from reporting inaccurately. Although the process was a cumbersome one, if people felt that the process was being rushed, this would have been raised.
Imam G Solomon (ANC) stated that it was probably the fact that there were deadlines that some people assumed that the Bills were being rushed.
Section 9 Remedies in Proceedings for Judicial Review
The minor change to the option in section 9 was that c(iii) (iv) and (v) stood on their own as (d) (e) and (f). There was absolute consensus among the members that this was the only option to be added for purposes of voting and no further debate occurred.
Section 10 Variation of Time
There was no problem with the variation of time clause. No further discussion
occurred around this issue.
Section 11 Regulations
Adv De Lange pointed out that section 11 (2)(a)(v) had originally been under 8(d). It was now however included as an independent clause.
He felt that Option 2 under 11(3) was too restrictive. He also wanted a slight variation made with regard to 11(4) in that 11(4)(a) and (b) had to be changed to require certain regulations which only had to be submitted to parliament before publication in the gazette as under (a) to be submitted and approved as was required under (b). Thus some sections referred to in (a) would move to (b) and vice versa.
Ms F Chohan Khota wanted some clarity on what was meant by submitted to parliament in 11(4). She wanted to know whether there was a difference between "submitted" and "tabled".
Adv De Lange said that one could "submit" something by throwing it in the post box. "Tabled" meant that the Speaker and the Secretary of Parliament are given the document. From there it would get sent to a committee or directly to parliament or just circulated - whatever was decided. If it went to a committee, that committee would have to give a report on it according to the Rules of Parliament. Thus "tabled", in line with the rules, seemed to kick off a set of processes. Submitted was a bit more loose.
Mr Johan De Lange of the drafters added that "tabled" would mean that 500 copies would have to be made for all members of parliament whilst with "submitted" it would suffice if the Speaker simply announced the submission. Basically therefore it amounted to a cost issue.
Adv De Lange said that eventually there would still have to be approximately 490 copies made. The difference with "submitted" would be that parliament would have to make them!
Mr L Lever suggested that 11(2)(c) rather be included as11(1)(f) as an option in order to make it obligatory and not discretionary for the minister to actually pass regulations pertaining to this.
Mr Lever also agreed that in 11(3) Option 1 should be followed instead of Option 2.
Mr Smith wanted clarity on Option 1. He asked whether in theory the Minister could, after consulting with the Public Service Commission (PSC) about a matter which the PSC could regulate on, irrespective of what was said in the consultation, still pass his own regulations on this matter. For example if the matter according to the Constitution was one for regulation by the PSC and they insisted on making their own regulations in respect thereof, could the Minister still nevertheless make his own regulations?
Adv De Lange felt that if the constitution clearly gave the PSC jurisdiction over certain regulations, then the Minister would not be able to interfere with those regulations.
He said that the wording was perhaps not perfect but the section was needed in order to avoid the situation where people could come and use this clause to claim that regulations passed were invalid simply because there was no consultation. However the Minister's overriding power needed to be kept to some degree.
There was broad consensus that the committee now had a Bill where all the different options which various parties wanted, had been drafted. The one exception was the issue of exhaustive remedies, and consequential amendments if necessary, which had not yet been finalised. There was also Section 6 (Reasons for administrative action) where although there were options, there was a possibility of more options if one mixed and matched some of the options.
Adv De Lange added that this did not stop members from moving some other amendment at the time of voting even though this was not desirable. Mr Johan De Lange and the other drafters would be altering the current draft before Friday in order to incorporate the newest amendments flowing from the last two meetings into the Final Draft for voting. Depending on whether there was time after Open Democracy deliberations, the committee could still look briefly at the final draft. This was unlikely however.
Adv De Lange felt that whichever way the committee members voted on the Bill, the committee had done exceptionally well with it. He said he "felt comfortable that they were going to pass a Bill that would do justice to this right and to the culture of creating a more democratic and open culture." He added that this did not mean that everything was perfect. However his saying "that this did not mean that everything was perfect" did not mean that the committee was being rushed or otherwise. This concluded the meeting.
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