German Technical Cooperation - Legislative Drafting Project
1 December 1999
Administrative Justice Bill
Parliamentary Hearings
Dear Mr de Lange,
Thank you again for the opportunity to present my comments at yesterdays hearing. Unfortunately Mr van Wyk, the responsible researcher at the SALC, had to leave immediately after the hearing so that he could not hand over the copies of the German Law on Administrative Procedure and on Administrative Court Procedures, which you asked for. He will bring copies with him coming Monday, when he is in Cape Town again. If you would like to have them earlier, I will fax or courier them. Please let me know.
In the meantime I attach those sections that seem to be of particular importance.
In the following I would like to provide you with a short overview on those provisions in the German law, which may be of particular interest for you and the Committee.
Section 35 of the German Law on Administrative Procedures of 25/5/1976 stipulates:
Concept of administrative act:
An administrative act shall be any order, decision or other sovereign measure taken by an authority to regulate an individual case in the sphere of public law and which is intended to have a direct, external legal effect. A general order shall be an administrative act directed at a group of people defined or definable on the basis of general characteristics or relating to the public law aspect of a matter or its use by the public at large.
Let me give you a short explanation of the meaning of
This does not include acts of organs of state in the sphere of private law.
Acts in the sphere of constitutional law are separately excluded from the jurisdiction of the normal (administrative) courts. In South Africa you would call them 'executive actions'. Disputes of a constitutional nature have to be heard by the constitutional courts (Section 40 of the German Administrative Courts Code of 21 January 1960). 'Disputes of a constitutional nature' are those directly affecting organs set up by the constitution and pertaining to their constitutional rights and duties (see Kopp/Schenke: Administrative Courts Code/VwGO, 1998, comment on section 40).
Subjective rights (as defined in the constitution or in legislation) of individuals have to be affected. Such rights are for example: the right to be granted permission to build a house if it is in accordance with municipal by-laws, to apply for business licences or social security assistance or, as a public servant, to be granted leave in accordance with the respective legal provisions etc.
The administrative act has to have a direct legal effect in a way that it establishes, changes, withdraws or declares such a subjective right (not: recommendations, information, opinions etc.).
The act has to have an external effect (Außenwirkung). This excludes those acts that have only effects within the administration (internal effects like change of organigrams, procedures between different departments, internal orders even if with indirect impacts on citizen). The differentiation is not made by simply looking at the fact whether an action 'physically' takes place within the organisation or not. It rather depends on the quality of the action. If it affects rights of a person working within the administration it is regarded as external! The German Constitutional Court (BVerfGE 33,1 ff) emphasised that constitutional and other legal rights are also to be fully enjoyed by those individuals working or living in such organisations.
With other words: Administrative decisions of a particular department within public administration, school, university or defence force affecting those people, who are working within this organisation (public servants, pupils, students, soldiers etc.), do not fall within the ambit of the law as long as they do not interfere with subjective rights. If they interfere, the action has an external effect. There is vast jurisdiction on this issue. The line has to be drawn on a case to case basis (see Kopp/Schenke: VwGO, appendix to section 42, No 67). In practice most day-to-day administrative decisions do not limit the rights of persons working within the organisation. Therefore, they cannot be challenged and are not reviewable. Examples are: the order to perform a specific task within the agreed job description, normal tests at school in the course of the year etc. On the other side, the following acts have direct, external effects: decision to expel a student/pupil from university/school, matrix certificate, appointment or dismissal of a public servant etc.
Section 28 of the German Law on Administrative Procedure stipulates:
Hearing of participants:
(1) Before an administrative act affecting the rights of a participant may be executed, the latter must be given the opportunity of commenting on the facts relevant for the decision.
This provision is enough flexible to deal with the wide range of practical cases. With regards to Prof. Haysom's representations at the hearing yesterday and the problem of efficient tax assessment, this section 28 would be flexible enough to deal with the matter in a satisfying way The still more open section 4 of the Administrative Justice Bill should be doing even better.
The German situation is as following. If it is about facts, which are unclear like the amount of money earned in a specific year, the person will be contacted and heard. I do not expect that this is under dispute in SA. If it is about legal questions (actually the example Prof. Haysom gave me: deductibility of certain expenses) the person will normally (minor cases) not be heard before the decision is made. Although it is widely accepted that even legal questions, despite the unfortunate wording of the provision, fall under the ambit of section 28, the provision is wide enough to allow for immediate decisions in minor cases.
Let me finally quote section 40 of the Administrative Courts Code as it deals with jurisdiction of other courts. It stipulates that all disputes about the lawfulness of administrative acts have to be adjudicated by administrative courts if not decided otherwise by federal (or provincial) law. This applies e.g. to tax disputes (tax courts), administrative decisions in the field of criminal law (criminal courts), social welfare cases (social security courts) etc.
Please do not hesitate to contact me if I can be of further assistance.
Rainer Pfaff
GTZ Advisor