Rules of Procedure for Judicial Review of Administrative Action: public hearings

Meeting report

Opening Remarks
Mr Jeffery explained that he would be chairing the meeting in the absence of Mr Yunus Carrim, who had other commitments to attend to. In addition, he noted that only Members of the majority party were in attendance. As a result, he surmised that opposition parties were too busy preparing for elections and did not deem the issue as newsworthy.

By way of background, Mr Jeffery explained that in terms of the Promotion of Administrative Justice Act (PAJA), Rules had to be proposed by the Rules Board for the Court of Law (Rules Board) and submitted to the Minister of Justice. Thereafter the Rules must be tabled in Parliament for approval. This was a similar procedure to Money Bills where Parliament’s power was limited to either accepting or rejecting the Rules. Mr Jeffery noted that the Committee had been engaged with these Rules over the past few years. He recalled that several Ministers had tabled different sets of Rules, which were subsequently withdrawn for different reasons. In light of this, the Committee was determined to reach finality on the matter and had extended the period to adopt the Rules.

Department of Justice and Constitutional Development Briefing
Prof Halton Cheadle, Special Adviser to Minister of Justice, explained that the proposed Rules sought to deviate from the existing rules as little as possible. The difference between the procedural regime created by the rules and the current regime for judicial review applications under Rule 53 of the Uniform Rules of Court was the new disclosure mechanism primarily found in Rule 4.

The proposed rules resolved two basic problems that had been in the way of an agreed set of rules between the Ministry and the Rules Board. It intended to do away with the automatic and unnecessary production of the record and the burden that that placed on the State. It also did away with double supplementation and provided citizens the opportunity to access the documents to determine whether the administrative decision was properly taken. The balance of the rules related to affidavits and a specific provision dealing with bundles. Finally, he stated that all courts must consider the rules and apply them to the extent that they fit to that particular court.

Prof Cheryl Loots, Chief Magistrate, Randburg District Court, acknowledged that the Rules Board had been through several sets of draft rules. She recalled that the first set of rules that were presented to the Portfolio Committee had not been approved because of the heavy burden that it placed on the State. She was satisfied that the proposed Rules balanced the interests of the administrator with that of the applicant.

Professor Geo Quinot Submission
Prof Geo Quinot, Department of Public Law, University of Stellenbosch, argued that the proposed Rules on requesting reasons for administrative action, were highly problematic and ultra vires. The proposed Rule 3 dealt with the request for reasons and not with rules of procedure for judicial review, which was the mandate of the Rules Board. The right to written reasons guaranteed in s 33(2) of the Constitution and fleshed out in s 5 of PAJA existed completely independent of judicial review. It could not therefore be argued that rules pertaining to requests for reasons and provision of reasons amounted to rules of procedure for judicial review. As a result, it followed that Rule 3 was beyond the power of the Rules Board as contemplated in s 7(3) of PAJA. This implied that Parliament had no power to approve such rules in terms of s 7(5) of PAJA. In light of the above, it was inappropriate and unlawful for the Rules to contain procedures on requesting reasons. Therefore, Rule 3 should be omitted.

Also, he welcomed the citation of respondents under Rule 8 and 9. However, he noted that the citation of political heads of state organs as nominal respondents as envisaged in s 2 of the State Liability Act was not addressed. Accordingly, he recommended that that it would be useful if the Rules clarified whether the political head of the relevant organ of state should be cited nominally as suggested by the State Liability Act or whether the organ of state itself should be cited.

In addition, Prof Quinot argued that statements in Form C that a person’s rights must be materially and adversely affected before judicial review proceedings could be brought under the Rules were in conflict with section 38 of the Constitution and section 6 of PAJA, and should therefore be deleted.

Finally, Prof Quinot welcomed the new disclosure mechanism, which allowed for the record of the administrative decision as well as a range of further relevant documents to be made available to the applicant before the notice of motion was filed. However, he noted that there were a number of issues that needed to be carefully considered in relation to Rule 4 read with Rule 7. The first issue was one of timing and in particular the 15-day period granted for requesting disclosure. It was not clear how this 15 day maximum time period for requesting disclosure was to be calculated in the absence of a request for reasons. Secondly, he questioned whether the 15-day period was adequate given that significant sections of people that were affected by administrative action in South Africa lived in rural areas with severely limited access to legal access and representation and with little or no knowledge of PAJA and its Rules and procedures.

In terms of the current time frames (for instituting review proceedings read with the current Rule 53), an applicant could launch an application and obtain the record even 180 days after the internal remedies were exhausted or in the absence of such remedies, after being informed of the action and reasons in terms of s 7(1) of PAJA. The new 15-day period was indeed a far cry from the current 180 day period. This put applicants at a distinct disadvantage and the 15-day period should be extended to a more realistic time frame for the South African context. The final matter to be considered in relation to Rules 4 & 7 was a potential challenge to an administrator’s decision to list documents, which would mean that the applicant was not allowed access to such documents. He found it anomalous that the Rules expressly provided for applications to compel an administrator to furnish a list and to provide access to information, but it was completely silent on any remedy in relation to an administrator’s decision to list a document and hence to deny access. He recommended adding a subrule under Rule 7 to allow for challenges of an administrator’s decision to list a document in Part of chedule A of Form D and hence to deny access.

Amendments Proposed to the Rules of Procedure for Judicial Review of Administrative Action and Form C: Request for Disclosure of Documents
Ms Clair Hartley, Director, Rules Board, read out all the amendments proposed to the Rules of Procedure for Judicial Review of Administrative Action and Form C (see documents). All the changes were underlined. The majority of the amendments were technical, with the most significant amendments effected to Rules 1 and 4.

Discussion
Adv C Johnson (ANC) noted that in his submission, Prof Quinot had argued that legitimate expectation may also qualify as administrative action under PAJA and that an applicant was able to seek judicial review of such action.

Prof Quinot maintained that an administrator should not have the power to determine standing and that this was the domain of the courts. 

Mr Jeffery believed that such a restriction was necessary otherwise it increased the burden on the State.

Prof Quinot replied that he had great difficulty in allowing an administrator to decide whether somebody had standing to challenge that very administrative decision. He viewed that as problematic particularly since the administrator was the other party to the potential proceedings.

Mr Jeffery sought whether Prof Quinot believed that anyone could ask for disclosure of any documents relating to any of the administrative decisions. 

Prof Quinot clarified that anyone who contemplated review should be able to use the mechanism.

Mr Jeffery invited Prof Cheadle to respond to the submission made by Prof Quinot.

Prof Cheadle noted Prof Quinot’s contention that Rule 3, which dealt with request for reasons, fell outside the procedural requests for judicial review. He noted that he had been advised by senior counsel that it was not possible to separate reasons from review. In respect of the concern raised about Form C, Prof Cheadle indicated that the Form was undergoing several changes and that the standing issues which were incorrectly stated had now been corrected. Finally, he recognized that there was merit in increasing the 15-day period (which the Department had increased to 20-days in its proposed amendments). However, he cautioned that this period should not exceed 45 days.

Members arrived at a consensus that the period should be 30 days and directed the department to incorporate this amendment.

The meeting was adjourned.