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JUSTICE AND CONSTITUTIONAL AFFAIRS PORTFOLIO COMMITTEE; SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
24 January 2000
RESOLUTION TO ADMINISTRATIVE JUSTICE BILL [B56-99]
Documents handed out:
Draft Resolution (Final version attached below)
The committee made some amendments to the draft resolution and it was adopted.
RESOLUTION OF PROMOTION OF ADMINISTRATIVE JUSTICE BILL AS PUBLISHED IN THE A.T.C. OF 24/01/00
Report of the Portfolio Committee on Justice and Constitutional Development on the Administrative Justice Bill [B 56 - 99] (National Assembly - sec 75), dated 24 January 2000, as follows:
The Portfolio Committee on Justice and Constitutional Development, having considered the subject of the Administrative Justice Bill [B 56 - 99] (National Assembly - sec 75), referred to it and classified by the JTM as a section 75 Bill, presents the Promotion of Administrative Justice Bill [B 56B - 99].
The Committee wishes to report further, as follows:
1. In terms of Clause 1, certain designated magistrates' courts will also have jurisdiction to judicially review administrative actions. As magistrates' courts are more accessible to all members of the public, a number of applications for judicial review of administrative actions may be brought in those magistrates' courts. The Committee expressed its concern about the lack of experience of magistrates in respect of administrative law and related matters. The opinion was expressed that magistrates who intend specialising in this field of the administration of justice and who are specially trained, will go a long way in building a pool of expertise within the magistracy in administrative law. The Committee consequently requests Justice College to ensure that training programmes in respect of administrative law and related matters for magistrates are initiated and implemented.
2. The Committee strongly recommends that the Minister for Justice and Constitutional Development should request the Judges President of the High Courts concerned to consider the establishment of circuit courts, specialising in administrative matters, in terms of section 7 of the Supreme Court Act, 1959, especially in the interim, whilst the magistrates' courts are not dealing with this matter as contemplated in Clause 7(4), in order to enhance the accessibility of such courts to the public. The Committee further requests the Department of Justice to monitor the number of appeals to the High Courts noted in respect of decisions by such designated magistrates' courts once Clause 1(iv)(b)(ii) comes into operation.
3. During its deliberations on the Bill, the Committee's attention was drawn to the fact that certain existing laws contain provisions providing for a procedure for the review of, or appeal against, an administrative action, other than a review by, or appeal to, a court of law. Due to the fact that no audit of such laws has been done and due to a lack of time, the Committee was not in a position to conduct an investigation in order to determine the impact of the Bill on such laws and the procedures created therein. The Committee expressed the opinion that the advisory council contemplated in Clause 10(2)(a) of the Bill would be the most appropriate body to conduct such an investigation. It therefore recommends that the Minister for Justice and Constitutional Development be requested to direct the advisory council, if established, to conduct such an investigation and to advise the said Minister on its findings. However, the Committee recommends that, in the meanwhile, the Minister for Justice and Constitutional Development be requested to direct his or her Department to conduct the said investigation. In the meantime the Committee has passed Clause 7(2) to deal with the issue on internal remedies.
4. The Committee also requests the Department of Justice to submit a progress report regarding the drafting of the code of good administrative conduct, as contemplated in Clause 10(1)(e).
5. The Committee further requests the Department of Justice to report back to it on all the above aspects within six months from the date of this resolution and six-monthly thereafter.
6. In terms of Clause 7(3) of the Bill, the Rules Board for Courts of Law must make and implement rules of procedure for judicial review of administrative actions. The Committee recommends that the Rules Board for Courts of Law should also consider the advisability of the framing of a tariff structure to be applicable in respect of such judicial review matters. The Committee requests the Department of Justice to report back to it once this matter has been considered.
7. In various submissions which were made to the Committee, it was pointed out that one of the problems experienced with public bodies is their failure or refusal to take decisions. In order to obviate this problem, the Committee has provided in Clause 6(2)(g) for a special ground of review, namely that a court or tribunal has the power to judicially review an administrative action if the action concerned consists of a failure to take a decision. The view is expressed that that provision will go a long way in addressing the above unacceptable practice, which appears to have developed amongst some administrators.
Report to be considered.