Clauses 1-7 of working draft

Meeting report

JUSTICE AND CONSTITUTIONAL AFFAIRS PORTFOLIO COMMITTEE; SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
19 January 2000
DELIBERATIONS ON ADMINISTRATIVE JUSTICE BILL [B56-99]

Documents handed out
Working Document: Promotion Of Administrative Justice Bill (AJU 67B)

SUMMARY
The committee looked at Clauses 1 to 7 of the latest draft of the Administrative Justice Bill (AJU 67B). The draft was thoroughly scanned to see that all options which members wanted for voting purposes were correctly included. A sense was gathered of which parties would be voting for which options. Minor amendments were still being effected where members felt this necessary. These would be put in a final draft for the next day.

MINUTES
Clause 1 Definitions
"administrative action"
The original definition of administrative action was not supported as an option. There were 9 other options, including the ANC's (option 8) and the DP's (Option 9). For voting purposes it was agreed that only Options 1, 8 and 9 would remain. Adv De Lange (ANC), the co-chairperson assessed this by determining the relative support for the various options, finding none for Options 2-7.

When arriving at Option 8, it was pointed out by Adv De Lange that the reference to "any decision taken or, faliure to take such a decision…" would exclude decisions taken in terms of the Open Democracy Bill.

Mr De Lange of the drafters registered his concern in Option 8 (i) (b) with the words "which is intended to have". He read this as a subjective criteria which would allow an administrator's word, that he did or did not intend something to have a direct external legal effect, to be conclusive. He said that he had spoken to Mr R Pfaff about this who in turn said that the English translation was incorrect, and that "intended to have" should be "has".

Adv De Lange said that Mr Pfaff had brought the English versions as translated already. In any case Adv De Lange disagreed with Mr De Lange's reading of the effect of "which is intended to have". He insisted that in fact it would not create a subjective criteria allowing administrators carte blanche in this regard. All this meant was that a court would have to decide whether a certain decision was "intended to have a direct external legal effect".

Mr De Lange of the drafters secondly suggested a deletion of "such" in the first line of Option 8. This was accepted.

"administrator"
There were three options in addition to the original.
Mr PF Smith (IFP) wanted the original in as an option. Option 1 was scrapped but Options 2 and 3 were kept in addition to the original. There were no further amendments.

"constitution" remained unchanged

"court"
Options 2 and 4 were opted for.
Mr Lever agreed with the retention of the words "{or the adverse effect of the administrative action was, is or will be experienced}" in Option 4, which were included as a result of the case of Estate Agents Board v Lek 1979(3) SA 1048 (A).

Adv De Lange, who was not keen on including these words, said that there had to be an option to delete these words. He said that what the words actually did was to amend both the Magistrates Court and Supreme Court Acts.

"decision"
Adv De Lange said that (g) had to be amended to include "of an administrative character or nature". Without this (g) would simply be too wide.

Ms FI Chohan Khotha said that they had to choose between character or nature. She suggested "nature". The members were in agreement with this.

Adv De Lange further suggested that in the 2^nd line, the words "under the empowering provision" should become: "under an empowering provision". This was accepted.

"empowering provision"
Adv De Lange had a problem with the concept of "the rule of common law" and suggested, to avoid confusion, that "a rule of common law" be used instead.

Mr Labuschagne disagreed. He said that "the" was necessary in the context of the sentence. In other words the definition had to read : "the rule of common law … in terms of which the administrative action was taken". To say :" a rule of common law … in terms of which the administrative action was taken" did not bring the intended meaning through.

Adv De Lange agreed with this reasoning. Instead of keeping "the" however, he decided to replace all "the"'s with "a" or "an". Thus it would read: "empowering provision" means: "a rule of common law…or an agreement…in terms of which an administrative action was taken".

"executing authority"
This remained unchanged.

"failure"
This remained unchanged.

"minister"
This remained unchanged

"prescribed"
This remained unchanged

"organ of state"
The option to omit organ of state was scrapped.

"qualified litigant"
The DP wanted the original as well as Option 1 as options. In Option 1 however it wanted only the first part included (up to the word Constitution and excluding "any person who applies…including-"
With regard to Option 2 it was unclear whether it would remain as an option or not.

Clause 2 Right to administrative justice
There was strong support for the SALC's proposal - Option 3. Option 6 - the option to admit was also kept while the rest were scrapped.

Clause 3 Interpretation Of Act
In 3(1) the original drafting was scrapped. The discussion was mostly around Options 4,5 and 6.
Adv De Lange felt that in terms of exempting any administrative action from the application of the Act, such exemption would have to pass constitutional muster. The test in the Constitution was one of reasonableness and justifiability. He felt that the test in the section for exempting administrative action from the application of the Act should thus also be of reasonableness and justifiability. He disagreed with the use of the words" in exceptional circumstances…" and thus wanted Option 6 included. Other parties wanted Options 4 and 5 to be included. 3(2) and 3(3) were left as they were.

Clause 4 Procedurally Fair Administrative Action
In 4(1) the original, as well as Options 1,3 and 4, were kept. Option 2 was scrapped.
Mr JH Jeffrey (ANC) had a problem with Option 3. He said that stylistically it did not read well. Adv De Lange said that the wording was from the SALC. He said that there was no time to redraft the wording now.

Mr Jeffrey wanted the words "in order to give effect…" in Option 3 to apply to the whole section.

For 4(5) the original was out whilst the option was in.

Clause 5 Administrative Action Affecting The Public
For 5(1), the NNP wanted Option 3, the DP Option 4 and everyone else Option 5. For 5(4) all the options were in and in 5(5) the original was out and the options were in.

Clause 6: Reasons for Administrative Action
In 6(3) Option 2 was agreed to by all members. There were various options in respect of 6(4). Options 3(a) 4, 5 and 6 were scrapped. Option 3(b), which had to be read together with Option 2(b)'s factors - {(A), (B) and (C), remained. The DP wanted (B) in Option 2(b) kept. (A) was scrapped and (C) was kept as an option.

Adv de Lange reminded members that 6(6) will only be included in this Bill if they vote for Option 7 of Clause 3: Interpretation of Act, which is to omit clause 3 in its entirety. The Chair stated that if members vote in favour of retaining clause 3, then all the exemptions will be removed from where they currently are within the bill, and placed collectively in clause 3, which will be entitled Application of Act. All members agreed to Option 4 for 6(6).

Clause 7: Grounds of judicial review

Adv de Lange noted that a decision had to be made between using the term "law" or "empowering provision" in 7(1f). The Chair asked why the word "vague" was included in subsection (1f)(ii). He did not understand how an action could be vague. Mr Smith (IFP) commented that an action can include making a decision, and that a decision could be vague. The Chair felt that "vague" was referring to the action itself, and not the manifestation of the action. He asked Ms van Schoor to flag this for later discussion.

The members of the Democratic Party (DP) stated that they were in favor of excluding "empowering provision" in 7(1f), and in favor of Option 1 for 7(1g) with the deletion of the phrase "grossly unreasonable". The National Party (NP) agreed with the position taken by the DP. No members supported any of the other options for 7(1g).

The committee decided not to use the original wording for 7(1h), but agreed to the option that was listed, with the inclusion of the word "unreasonable."

Adv de Lange believed in 7(2) that "empowering provisions" could be deleted, but that "law" must be included. He raised concern that under the definition of "law" in 7(2b), "this Act and prescribed code" would be problematic. He argued that this phrasing be omitted, as he did not want to have to create a code. The Chair felt it was necessary to talk to the Minister of Administrative Justice regarding this matter. Mr Masutha (ANC) agreed with the Chair, stating that it would put in place two legal instruments. One of regulations, that is binding legally, and two, the code, which deals with "good practice." Mr Lever (DP) asked that this be flagged for later discussion. Mr Lever (DP) also suggested that 7(2c) be either moved to the definition clause, or omitted from the bill.

The Chair stated that the four options that were listed would all be deleted, and replaced with the following three options:

1) to move (c) "relevant considerations" to the definition clause. (DP option)

2) omit (c) "relevant considerations" (DP option)

3) move (b) "law" to the definition clause, with the option to omit "this Act and the prescribed code".

The committee was pleased with the changes that were made.

Clause 8: Procedure for judicial review

Adv de Lange asked if any committee members were in favor of retaining 8(1) in this clause. No members were in favor, and it was deleted. The Chair also informed the committee that with the submission of an option to insert the proposed subclause {Exhaustion of domestic remedies}, all other options could be omitted. He then stated that all that would remain under clause 8 would be the title, and the proposed subclause, which members must decide on which of the three options outlined they prefer. The Chair was also noted that the first part of Professor Haysom's suggestion which makes reference to the Rules Board would be retained.

Clause 9: Remedies in proceedings for judicial review

All members were in favor of the new option for 9(1c). It was also agreed to include 9(2), with the deletion of "8(2) or (3)", but retaining "7(3)". The Chair noted that 9(2a-c) were taken from the Australian model.

Clause 10: Variation of time

No problems or questions were raised concerning this clause.

Clause 11: Regulations

Adv de Lange asked if any member wanted to amend any part of 11(2). The members felt that the options listed for specific words were sufficient.

The committee agreed to Option 1 for 11(3). The Chair noted that the original and second option for 11(3) would be deleted. It was also agreed to use the "submitted to, and" in 11(4b).

Adv de Lange was in favor of Option 2 for 11(6). Members of the Democratic Party (DP) stated that they were in favor of Option 1. The Chair reminded the committee that Option 1 requires only one or two Ministers to make a decision, while Option 2 requires the Cabinet to decide.

Clause 12: Short title and commencement
No discussion