ORAL SUBMISSION TO THE PORTFOLIO COMMITTEE ON JUSTICE ON THE ADMINISTRATIVE JUSTICE BILL (B56-99)
1) Introduction The Commission on Gender Equality (CGE) is an independent, statutory body established in terms of Section 187 of the Constitution of South Africa, Act 108 of 1996.
The role of the CGE is to promote respect for gender equality and the protection, development and attainment of gender equality. The powers and function of the CGE are detailed in the Commission on Gender Equality Act 39 of 1996. In terms of Section 11(1), the CGE must inter-alia evaluate any law proposed by Parliament, affecting or likely to affect gender equality ot the status of women, and make recommendations to Parliament with regards thereto.
The Commission on Gender Equality notes that the above Bill has significant implications. We find it crucial that the Committee engage on the gendered implications of the Bill and submit the following for your attention.
2) Framework
The Commission has previously made recommendations to the South African Law Commission in response to initial drafts of this Bill. We welcome the opportunity to make further representations on this Bill.
The Commission has chosen to continue engaging with this legislation as it emerged out of the Law Commission Processes for number of very specific reasons. For the majority of South Africa’s population, under-privilege, lack of access and minimum levels of education are the norm. This is also the majority who engage on a daily basis with the administrative authorities in attempting ti access the assistance of the state or other organisations to improve the quality of their lives. The manner in which they are able to access the rights given form to by state and other organisations is crucial to their well being and prosperity. It is for this reason that the Commission sees this as a crucial piece of legislation with most significant impact on the everyday lives of all people in South Africa.
The following areas of concern arise for the Commission.
3) Notice of Administrative action to be accompanied by reasons At present the Bill allows for reasons in the event that they are requested. However, this places an undue burden on individuals who may not have the necessary resources to make such requests. It is important that individuals are timeously informed of the reasons for administrative action that effects them negatively, in order to allow them to take measures to alleviate these effects. Hence, it stands to reason that in order to enable this the administrator be required to provide these reasons simultaneously with notice of the action that effects an individual negatively. This will give full effect to Section 33(2) of the Constitution.
As the legislation reads at present it is not apparent that the reasons have to be provided immediately. Instead there is a duty on the Individual concerned to apply for a reason to be given. This places an undue burden on the individual and may also imply additional costs, financial and otherwise. In view of the distances individuals in rural areas would have to travel to make these requests and the financial burden placed on them in doing so, we suggest that this step be eliminated entirely.
We recommend that:
· In instances where a decision adversely effects an individual,procedurally fair administrative action must include the provision of reasons;
· the Bill include a clause stipulating that an administrator must provide reasons for administrative action that adversely effect an individual at the same time that notice of the action is given.
4) Reasons The Commission also finds it significant that where reasons are given, they are given in a manner that is accessible by and hence comprehensible to the individual concerned. If reasons refer to aspects of internal rules and regulations, that a copy of the specific rules or regulations referred to be included for the individual's information. Further; it is important that "when reasons are provided that these are accompanied by suggested alternatives, remedies or mechanisms for alleviating the adverse effects of the decision.
Recommendation:
Reasons provided upon notice of administrative action that effect the individual negatively be accompanied by:
· relevant documentation that explains the basis of the action in a manner that it is easily comprehensible
· information on appeal/review processes
· information on remedies and/or alternative mechanisms that may offer for relief or redress.
5) Review procedure
Section 8(1) allows for review through a court. Review through the courts requires financial and other resources, which many in this country do not have access to. An internal review process, at no additional cost could prevent this. To enable this, however it would be imperative that the individual be informed of this option at the same time that she or he is informed of the administrative action.
Recommendation: To alleviate this we recommend an intermediate level of appeal in the form of an internal appeal prior to a court review. In this process the individual would be able to appeal a decision within the body taking the administrative action, but at a level higher than that at which the first decision was taken. This would allow for an additional mechanism for relief for the individual without incurring the costs of presenting ones-self in a court.
Should this recommendation be adopted the appeal process would have to be accessible as possible.
This would imply the following:
· there would have to be a duty on administrators to inform individuals of this option
· forms would have to be easily understandable
· administrators would also have to have a duty to assist the individual in accessing this process, i.e. in assisting in completing forms and other documentation.
6) Definition of adequate reasons While the Bill requires the provision of adequate reasons it provides no definition thereof. This could result in inconsistency across departments and between provincial administrations as well as between the public and the private spheres.
Recommendation:
We suggest that the term "adequate reasons" be defined to give clarity as to what it entails.
7) Public Hearings and Comment Section 11 says the Minister `may’ make regulations. We submit that this leaves room for these regulations and other issues not to be addressed.
Section 11(3) requires that rules and regulations made under 11(1) be submitted to Parliament before gazetting. Of particular concern are 11(1)(b) and (c). These determine procedures for public hearings, for notice and public comment. However submission to Parliament does not, of necessity, imply that the public will be asked for comment or that the regulations will be engaged on extensively. The Commission believes these rules and procedures will be crucial in establishing a foundation for further development of the culture, which will eventually surround public hearings. As these are crucial elements of public Participation and of access in decision-making, we suggest that there be an opportunity for public engagement on these regulations.
We recommend that:
· In 11(1) 'may' be replaced by 'shall'
· the rules and regulations contemplated in 11(1)(b) and (c) must be tabled in Parliament and the relevant Parliamentary Committee must invite public comment on these before implementation.
8) Awards According to the legislation, financial awards are only made in exceptional cases. We recommend that financial awards may be made where appropriate and not only in exceptional circumstances.
9) Advisory Council Tile Bill allows for an Advisory Council. The Commission finds itself intervening in a number of such cases and has thus developed an expertise in this area. It is important that such an Advisory Council harness the benefit of this experience. This could be achieved by inclusion of the Commission on Gender Equality in the Advisory Council.
Further, as the Bill seeks to address issues of concern to the broader public, the Commission finds it important that the Advisory Council be representative of the broader demographic make-up of the population.
Recommendations:
· The Commission on Gender Equality to be amongst the members of the Council.
· The Advisory Council be constituted with a view to gentler representivity.
10) Conclusion
The Commission welcomes this legislation in its potential for addressing issues that effect the everyday lives of individuals. We hope that the Committee will engage with these recommendations in the interest of effective legislation.