CENTRE FOR APPLIED LEGAL STUDIES: CONSTITUTIONAL LITIGATION PROJECT

To: The Justice Portfolio Committee

From: Jonathan Klaaren, Associate, Constitutional Litigation Project, Centre for Applied Legal Studies
Re: The Open Democracy Bill
Date: 11 August 1998

‘A person should be able to know of the law, and be able to conform his or her conduct to the law.’ President of the Republic of South Africa v Hugo, 1997 (4) SA 1 (CC) at para 102 (Mokgoro J).

This memorandum does not engage with the issues gaining most publicity with regard to the ODB: the open meetings and the coverage of privately held information. Instead, it deals with a core issue of the accountability of government but a provision apparently missing from the present draft. At present, the bill contains no provision to make public the secret and bureaucratic law that the concept of open democracy is surely aimed at.

In brief, there is no requirement for publication of binding decision-making guidelines. Such a requirement was, in one form, contained in section 10 of the draft of 18 March 1997. I believe that such a requirement is in fact mandated by the Constitution as I shall endeavour to argue in this memorandum. In the result, if the ODB is to be tabled in its present form, it would fail to give effect to the right of access to information in the Constitution.

The first section details the present legal regime and the following section presents separate constitutional arguments supporting such a requirement for publication of binding decision-making guidelines. A final section treats the drafting of section 10 of the 18 March 1997 draft.

I. The Present Legal Regime
In terms of the present statutory regime, the only general requirement for publication of subordinate legislation of which I am aware is that contained in section 16 of the Interpretation Act 33 of 1957. This section provides that by-laws, regulations, rules, and orders shall be published in the Government Gazette. Any rules or orders that are not so published are regarded as without binding effect as a matter of law. See Baxter, Administrative Law 364-65 (citing S v O’ Malley, 1976 (1) SA 469 (N), 480B-F, inter alia, for evidence of the common law position). This is also true as a matter of statutory law, with section 16 interpreted to have mandatory and not merely directory effect.1 See also President of the Republic of South Africa v Hugo, 1997 (4) SA 1 (CC) at para 97 (Mokgoro J).

However, as Baxter further points out, the pre-constitutional practice of the courts faced with challenges to administrative acts which affect large numbers of people has often been to treat such acts as ‘purely administrative’ and to hold that absence of publication does not matter. Baxter at 365-366 (citing cases such as Duze v Eastern Cape Administration Board 1981 (1) SA 827 (A), 841C-H (a determination of rentals for a township is ‘administrative’ and need not be published)). Baxter criticises these decisions on the grounds that they do not provide notice to all who are likely to be affected by those acts. As he puts it: ‘[a]dministrative action can be far reaching in its effects: it should not also be veiled in a shroud of uncertainty resulting from absence of publication’. Baxter at 366.

In the light of the Constitution, it is extremely unlikely that the Duze line of decisions will stand. Such action will not escape constitutional scrutiny on the categorical basis that it is administrative. Instead, it will be measured up against a set of justificatory principles, a measuring up the rest of this memorandum attempts to do. See E. Mureinik, ‘A Bridge To Where? Introducing the Bill of Rights in the Interim Constitution’, (1994) 10 SAJHR 31.

Regardless of the opinion taken on this previous point, what one is left with then -- as a matter of the existing statutory regime -- is a publication requirement for by-laws, regulations, rules, and orders but nothing that explicitly covers the category of binding internal directives or decision-making guidelines. Prof. Devenish makes precisely this point in his treatise, Interpretation of Statutes (1990) 241, where he writes: ‘The Interpretation Act is therefore not expressly made applicable to the interpretation of administrative orders or directives, although it may be assumed that words in such administrative orders or directives will bear the same meaning as in the law under which they are authorised.’

To this extent, the Interpretation Act is thus under-inclusive and would be unconstitutional, were it not for the possibility that the Open Democracy Bill should fill this gap as part of giving effect to the right in section 32.

II. Constitutional Arguments for a Publication Requirement
There are numerous policy arguments in favour of such a requirement of publication for binding decision-making guidelines based on good government and sound administrative management practice. These include the fact that such a requirement is commonly included as part of international best practice of this kind of freedom of information legislation. In addition, there are three primary legal and constitutional arguments for such a publication requirement.

A. Access to Information
The first legal and constitutional argument proceeds from the access to information right. Undoubtedly, this right was designed to unearth and bring to light exactly the type of ‘secret law’ that non-published but binding guidelines constitute. The state must not wait for someone to ask to have access to such law; it must instead make that law publicly available of its own accord. Commentators support the notion that this section places a positive duty on the state to provide information. See Davis, Cheadle, and Haysom (eds), Fundamental Rights in the Constitution: Commentary and Cases (1997) 148 (IC section 23 provides a ‘positive right’). If such a duty was not clear in the Interim Constitution, the stronger language of section 32(1) -- omitting the proviso relating to required for the exercise or protection of his or her rights -- in the New Constitution should remove doubt on this point. See J. Klaaren, ‘Access to Information’, section 24.2 in Chaskalson et al., Constitutional Law of South Africa (Revision Service Two, 1997). This duty would not be satisfied by the Act’s provision of a right of access to these guidelines upon request; publication is demanded. If the Parliament does not treat this issue, then the courts will have an argument to weigh in themselves. See J Klaaren ‘Constitutional Authority To Enforce the Rights of Administrative Justice and Access to Information’ (1997) 13 SAJHR 549-64.

B. Just Administrative Action: Lawful Administrative Action
The second legal and constitutional argument proceeds from the right to lawful administrative action. Essentially, it cannot be lawful administrative action to ‘confer or recognise any right, privilege, grant or benefit [or] impose any obligation. liability, penalty or detriment’ if the decision-making guidelines are not publicly available. To do otherwise, is to operate in terms of secret law and would violate the rule of law concern that is behind the enactment of the right to lawful administrative action in FC s 33(1). See also FC s 1.

It should be recognised that the argument presented here makes a distinction between binding decision-making guidelines and those guidelines which are not binding and are of merely interpretative effect. This distinction was not clearly made in the draft section 10 contained in the 18 March 1997 draft. It should be clear that I am arguing here that, strictly speaking, the Constitution requires the publication only of binding guidelines. The distinction between binding and interpretative decision-making guidelines is a familiar one in statutes such as the Open Democracy Act. See e.g. P. Strauss, An Introduction to Administrative Justice in the United States (1989) 157-58 (interpretative rules subject to lesser procedural requirements than binding rules in terms of the American Administrative Procedures Act, which incorporates the Freedom of Information Act).

It is possible that such binding internal law is subject to mandatory pre-adoption procedures. See R. Kriel, ‘Codifying Pre-Adoption Procedures for Subordinate Legislation in South Africa’, (1997) 13 SAJHR 354 (noting that publication is the least onerous of the possible requirements) and M. Asimow, ‘Administrative Law under South Africa’s final Constitution: The need for an Administrative Justice Act’, (1996) 113 SALJ 613. Again, this would presumably not be the case for interpretative guidelines which purport not to change the pre-existing legal position but merely to clarify that position. However, this is more a matter for the Administrative Justice Act than for the Open Democracy Act. The need for pre-adoption procedures is not strictly relevant in terms of the present issue, except to the extent that a publication requirement may itself be seen as fulfilling -- in part or in full -- such constitutional requirements.

C. The Limitations Clause
The third is not an argument that the government is required to publish such binding law but that it would be well-advised to do so in terms of the limitations clause. The general limitations clause contained in section 36(1) of the Constitution can be used by the government to justify an infringement of a substantive right only where a law of general application is at issue. If a government department were thus to wish to use a decision-making guideline in order to invoke the limitations, it would need to demonstrate that such a guideline was a law of general application. Without the element of publicity -- that the law be accessible to the citizens -- it will be unable to do so. President of the Republic of South Africa v Hugo, 1997 (4) SA 1 (CC) at para 102 (‘A person should be able to know of the law, and be able to conform his or her conduct to the law.’) (Mokgoro J). See S. Woolman, ‘Limitations’, at section 12.5, Constitutional Law of South Africa (Chaskalson et al. eds, 1996) (‘[P]ublicly promulgated laws only. Policies kept in a government drawer will not suffice [for purposes of the limitations clause].’) This requirement of publicity is also the case in the constitutional jurisprudence of Canada and the European Convention. See P. Hogg, Constitutional Law of Canada, (3rd Ed.) at section 35.7.

III. Conclusion
How then to solve this problem in the Open Democracy Bill? I would suggest a redrafted section -- based on section 10 of the 18 March draft -- be added to the present draft. As a matter of strict constitutional law, the section does not need to cover interpretative guidelines but must cover binding ones. While the previous drafting was constitutionally adequate, if the desire is to only require publication of binding guidelines, subsection 10(1) could be redrafted to make this distinction clear. In addition, subsections 10(3) and 10(5) would likely not be required as a matter of strict constitutional law, when the limitations clause was invoked. They too could be dropped on a strict interpretation. However, the arguments presented here -- specifically the elimination of the proviso in section 32(1) of the Constitution -- would additionally require the deletion of the old subsection 10(4).

Section 10 of the 18 March draft provided as follows:

10(1)(a) Notwithstanding any other legislation or the common law to the contrary, whether or not that legislation or common law came into effect before or after the commencement of this section, the head of a governmental body must make available for inspection without charge and for copying upon payment of the prescribed fee any guideline which is used by the body or any of its organs, or issued by the body to its officials for their use, in making decisions or recommendations in terms of the law to –
(i) confer or recognise any right, privilege, grant or benefit; and
(ii) impose any obligation, liability, penalty or detriment.

(b) For the purposes of this section "guideline" means any manual, circular letter or other record which describes, consists of or contains instructions or guidance on –
(i) objective to be pursued;
(ii) procedures to be followed;
(iii) the rules, criteria or precedents to be applied;
(iv) the interpretation of any relevant statutory or other provision, in the
administration or enforcement of a provision of the law.

(2) A guideline referred to in subsection (1) must exclude information on the basis of which a request for access is required, and may exclude information on the basis of which a request for access is permitted, by this Act to be refused.

(3) If an individual who, because of illiteracy, poor literacy or a visual or auditory disability, is unable to comprehend a guideline referred to in subsection (1) in the form in which it is made available, the head of the governmental body in question must, if the individual so requests, take reasonable steps to make the guideline available to the individual in a form in which it is capable of being comprehended by the individual.

(4) Where –
(a) a guideline which is required by subsection (1) or (3) to be made available was not so made available when an individual did, or omitted to do, any act relevant to any decision or recommendation contemplated in subsection (1); and
(b) the person was not aware of the guideline at the time of the act or omission, the person may not be prejudiced by reason only of the application of the guideline in relation to the act or omission by the person if he or she could lawfully have avoided the prejudice had he or she been aware of the guideline.

(5) The head of a governmental body must, if reasonably possible, cause any guideline referred to in subsection (1) to be made available in the form of a data bank for the users of online computer facilities.