• The term "prosecuting agency" should be excluded from the Bill as it is already encompassed in the definition of organ of state. If it is retained in the Bill, it must be defined and there should be justification why it must be listed independently.
• Section 2 should be redrafted to be consistent with section 33 of the Constitution. Further, legitimate expectations and interests should be catered for in the Bill.
• The wording of section 4(5) should change from "may" to "must" to make it clear that an administrator should follow the procedure set in other legislation on condition that it is fair.
• It is important that laws be audited to ensure that they meet the basic standards set in the Bill. To this extent, COSATU recommends that the Minister of Justice in conjunction with other Ministers kick-start a process to vet other pieces of legislation to ensure that they comply with the standards set in the Bill.
• The Minister's power to vary or exempt an administrator or a group or class of administrators from the requirements set out in section 4, in terms of section 4(6)(a), will have an impact on administrative action. Therefore, the Minister should publish the Gazette for public notice and comment prior to implementing such a decision.
• There should be provisions to encourage proactive disclosure of reasons consistent with the Right to Know approach in the Open Democracy Bill. A proactive approach will assist the poor and marginalised who lack the necessary resources to lodge requests for reasons.
• A standard format should be included in the bill to guide administrators on what constitute adequate reasons.
• The grounds of review should be recast as positive duties on administrators.
• An interim dispute resolution forum should be put in place. The possibility of linking the enforcement mechanism of the Open Democracy Bill and the Administrative Justice Bill should be explored as an interim measure.
• It should be stated that a final accessible forum such as the magistrates court will be put in place with certain changes, for instance the rules of the magistrates court. Further provision should be made for the training of presiding officers.
• We recommend the rewording of section 11(1) by inserting the words "must" instead of "may". This will create a duty for the Minister to formulate the required regulations.

COSATU welcomes the opportunity to participate in the public hearings on the Administrative Justice Bill (hereafter the Bill). We support the objectives of the Bill inter alia "to give effect to the right to administrative action that is lawful, reasonable and procedurally fair and to the right to written reasons for administrative action." Our members and their families rely on administrative actions from the state including support in the form of unemployment insurance and state old age pensions. The state has the obligation to implement programmes and measures to progressively realise socio-economic rights such as the right to access health care services and this entails numerous administrative actions. Further, private bodies routinely take decisions that affect millions of our constituency and the broader society. Administrative justice is essential to protect people from arbitrary decisions by organs of state and private bodies, which affect their rights and livelihoods.

The enactment of this piece of legislation is sanctioned by 33(3) of the Constitution. In terms of this section national legislation must give effect to the right to administrative justice contained in section 33(1) and (2) of the Constitution. Legislation must further provide for the review of administrative action by a court, or where appropriate, an independent and impartial tribunal; and impose a duty on the state to give effect to the right to administrative justice.

Apart from the constitutional imperative, there is a political logic underlying administrative justice. Administrative justice should not be conceived purely as pitting the individual against the state, but as transforming the relationship between the state and citizens. This legislation will play a vital role in uprooting the entrenched culture of secrecy and lack of accountability inherited from the apartheid state. It will therefore play a significant role in the transformation of the state and how it relates to citizens. In this endeavour, it will consolidate current efforts to transform the state and give further impetus to initiatives such as the White Paper on Transforming Public Service Delivery, popularly known as "Batho Pele" (People First).

The White Paper seeks to transform the manner in which public services are delivered to the public by emphasising a public service ethos which rests on participation, timely and accurate information, redress and so forth. In particular, it emphasise the need to provide the public with reasons and taking corrective steps whenever a service falls below the expected standards. The vision put forward in the White Paper is derived from the RDP, the White Paper on Transforming the Public Service and section 195 of the constitution.

In addition, the Bill will engender accountability within the private sphere. The inclusion of private bodies in the ambit of the Bill is important as these bodies take administrative actions that affect people's lives. In addition, the traditional demarcation between private and public is becoming blurred as services traditionally supplied by the public sector are now provided by the private sector. Some private institution such as the large corporations effectively exercise 'social' rather than 'private power'. Their decisions and action can have an impact, both negatively and positively, in people's access to socio-economic rights.

Administrative Justice legislation should be drafted in a manner that is accessible to ordinary people who will rely on this piece of legislation. Additionally, the enforcement mechanism should be accessible, cheap and understandable by ordinary people. On both counts, we are concerned that the bill fails to meet its objective of being accessible to ordinary people. This submission seeks to address areas where the bill is defective and reinforce its strengths. It will focus on:

• Definitions;
• Right to administrative justice;
• Procedurally fair administrative action;
• Administrative action affecting the public;
• Reasons for administrative action;
• Grounds of review and enforcement mechanism; and
• Regulations.

Proposed legal amendments are attached as annexures to this submission. In some respects these are the product of collective deliberations with other NGO's particularly Black Sash. While in some respects we share the concerns raised in the submissions of these organisations, there may be areas where there are differences of nuance or emphasis.

For this legislation to be workable, it is important to balance the right to administrative justice and the capacity of the state. It is therefore important to avoid placing too onerous a burden on the state, which may abort the legislation. However, this legislation should not be seen as a burden. Giving reasons prevents unnecessary disputes and minimise friction if reasons are cogent. It will also ensure much needed institutional transformation. As such COSATU supports a gradual or incremental approach to the implementation of the Act. However, this should not be construed in such a way that it affects the right to administrative justice or defers its realisation.

Section 1(i) defines administrative action as:

"any act performed, decision taken, rule or standard made, or such act, decision, rule or standard which should have been performed or taken or made, by -

1. an organ of state;
2. judicial officer;
3. a prosecuting agency; or
4. a natural or juristic person when exercising a public power or performing a public function."

COSATU welcomes this definition, particularly the inclusion of natural or juristic persons. This means that all persons and institutions exercising a public power or public functions will be covered by this legislation.

The Bill attempts to separate administrative actions from judicial, legislative and executive functions performed by judicial officers, the legislatures and the executive at national, provincial and local level. It achieves this by excluding such functions from the scope of the Bill. A decision to institute or continue a prosecution is also excluded from the Bill. Although it is difficult to delineate the dividing line between 'administrative' and 'executive' functions, this is important in the light of the recent Constitutional Court judgement in the case of The President of South Africa v South African Rugby Union (SARFU) CCT 17/98. In the judgement delivered on this case at [134] it is stated that:

"All the provisions of the Bill of Rights are binding upon the executive and all organs of state.

In section 33 the adjective "administrative" not "executive" is used to qualify "action". This suggests that the test for determining whether conduct constitute "administrative action" is not who performs the action but the nature of the action...The focus of the inquiry as to whether conduct is "administrative action" is not on the arm of government to which the relevant actor belongs, but on the nature of the power he/she is exercising [14]

Some acts of members of the Executive, in both the national and provincial spheres of government will constitute "administrative action" as contemplated by section 33, but not all acts by such members will do so [142]"

From this it is clear that the question is not where the person taking administrative action belongs, rather, whether the action taken is regarded as an administrative action, which falls within the ambit of this Bill. Therefore, a blanket exclusion of certain governmental bodies from this Bill will not meet the requirements of this Bill. Secondly, it is clear that not all actions taken by governmental bodies such as the executive constitute administrative action, hence the need to exclude them from the purview of this legislation.

Having said this, we have concerns with the inclusion of "prosecuting officer" as a separate category. First, it is not apparent why prosecuting officer is mentioned separately as this can be covered under organs of state. The unintended consequence of this approach is to create a situation where prosecuting agencies will believe that they are not organs of state. Secondly, the Bill does not define the term "prosecuting agency".

• We recommend that term "prosecuting agency" be excluded from the Bill as it is already encompassed in the definition of organ of state. If this term is retained in the Bill, it must be defined and there should be justification why it must be listed independently.

In terms of section 1(ix) a "qualified litigant" means:

"(a) anyone acting in his or her own interest;

(b) anyone acting on behalf of another person who cannot act in his or her own name;

(c) anyone acting as a member, or in the interest, of a group or class of persons;

1. anyone active in the public interest; or
2. any association acting in the interest of its its members."

This definition is in line with section 38 of the Constitution and is supported by COSATU as it recognise that organisations such as trade unions may institute actions on behalf of their members.

Although, section 2 of the Bill seeks to give effect to section 33 of the Constitution, it imports the language of the Interim Constitution. A number of concerns emanate from this approach. (1) Section 2(1)(a) provides that "every person has the right to lawful administrative action where any of his or her rights is adversely affected or threatened." This marks a departure from section 33(1), which provides that "everyone has the right to administrative action that is lawful, reasonable and procedurally fair." The consequence is to limit the right contained in section 33(1) with the insertion of the words "where any of his rights or her rights is adversely affected or threatened." The scope of the right is now limited to where an individual's right is adversely affected or threatened, which fundamentally alters the right in the Constitution.

Therefore, section 2(1)(a) unjustifiably limits the right to lawful administrative action in a manner not contemplated by section 33 of the Constitution. In our view, legislation should expand rather than restrict constitutional rights and the current section may not stand constitutional scrutiny.

(2) Section 2(1)(b) provides that "every person has the right to procedurally fair administrative action where any of his or her rights or legitimate expectations is adversely affected or threatened." Again this contradicts section 33 which simply states that "everyone has the right to administrative action that is procedurally fair." The right to procedurally fair administrative action is far broader in the final constitution than in the interim constitution. In the latter case it is confined to administrative action where an individual's rights or legitimate expectations are adversely affected or threatened.

(3) Even on its own terms, the Bill uses concepts such as rights, interest and legitimate expectations in an inconsistent manner. For instance section 2(1)(a) talks about "rights and interests" but exclude legitimate expectations. Whereas section 2(1)(b) includes legitimate expectations but exclude interests. In our view, interests and legitimate expectations should be included in the Bill. A right is a legally defined interest that enjoys legal protection, while an interest is something which is still to be defined and investigated. It has been accepted that interests are also important and therefore, deserve legal protection. In broad terms legitimate expectations provide the holder of the expectation with protective safeguards to prevent others from depriving him/her of the expectation.

(4) Section 2(1)(d) suffers from the similar defects as it simply repeats the provisions of the Interim Constitution. It provides that "every person has the right to administrative action which is justifiable in relation to the reasons given for it where any of his or her rights is adversely affected or threatened." Section 33 rejected this wording and the inherent limitation of the right to situations where one's rights are affected or threatened. It has chosen to guarantee a generally applicable right of every person to reasonable administrative action.

• We propose the redrafting of this section along the lines consistent with section 33 of the Constitution. Further, legitimate expectations and interests should be catered for in the Bill.

Procedurally fair administrative action is intertwined with the concept of 'natural justice'. In legal terms, natural justice is mostly concerned with "fairness", accordingly it provides that justice most not only be done but must be seen to be done. Therefore, procedurally fair administrative actions should adhere to the principles of natural justice.

Section 4(1) excludes legitimate expectations and as argued above this should be included. Currently the section provides that "administrative action which adversely affects right or interest must be procedurally fair.

Secondly, a distinction should be drawn between procedures, which must be followed prior to the administrative action and those which must be followed once the administrative action has been taken. This is important as it will place positive duties on administrator and clarify actions they need to take prior and after administrative action is taken. Such an approach will go a long way in assisting both administrators and people affected by administrative decisions. A preventative approach is desirable to a remedial approach and may assist to limit litigation.

Section 4(5) provides that "where an administrator is empowered by any other law to follow a procedure which is fair but different from subsection (2) and (3), the administrator may act in accordance with that different procedure." This section is important as it insulates and recognises procedures established in terms of other law. Further it provides an overriding test that such procedure should be fair. However, in order to create certainty the wording in this section should change from "may" to "must" so that it is clear that an administrator has to follow procedure set in other legislation.

Of particular concern to COSATU is the relationship between this Bill and labour laws. For example section 32 of the Labour Relations Act (LRA) empowers the Minister of Labour to extend collective agreement to non-parties by request from the bargaining council. In this regard the Minister of Labour undertakes administrative action but follows the procedure in the LRA. As such section 4(5) will be a protective safeguard as it allows procedures in terms of other laws as long they are fair.

• The wording of section 4(5) should change from "may" to "must" to make it clear that an administrator should follow the procedure set in other legislation on condition that it is fair. This will ensure consistency and avoid unnecessary confusion.
• However, it is important that laws be audited to ensure that they meet the basic standards set in the Bill. To this extent COSATU recommends that the Minister of Justice in conjunction with other Ministers kick-start a process to vet other piece of legislation to ensure that they comply with the standards set in the Bill.

In several instance the bill permits the variation or deviation from set procedure. For instance, section 4(4) permits an administrator to 'depart from the requirements to follow the procedure set out in section (2) which inter alia include adequate notice of the nature and purpose the proposed administrative action" where it is justifiable under the circumstances. Other provisions include sections 4(6)(a), 5(4), 6(a). The intention behind this approach is to allow for flexibility and to cater for unforeseen events. COSATU does not have a fundamental problem with this approach.

In addition, the Minister is empowered to exempt an administrator or categories of administrators from following the procedure set in section 4. In our view, the Minister should publish his/her notice for public consultation and parliamentary scrutiny, prior to its implementation. Further, the exemption should be for a limited period, within which the administrator must take steps to ensure that they have the capacity to comply with the procedure set in section 5.

• The Minister's power to vary or exempt an administrator or a group or class of administrators from the requirements set out in section 4, in terms of section 4(6)(a), will have an impact on administrative action. Therefore, the Minister should publish the Gazette for public notice and comment prior to implementing such a decision.

COSATU welcomes the provision of section 5 which will ensure public participation in policy-making. Section 5(1) provides that where an administrative action adversely affects the public "an administrator must give effect to section 4, and in order to do so he or she or it must decide whether -

1. to hold a public inquiry in terms of subsection (2);
2. to follow a notice and comment procedure in terms of subsection (3);
3. to follow the procedures in both subsection (2) and (3);
4. where the administrator is empowered by any other law to follow a procedure which is fair but different; to follow that procedure; or
5. to follow another appropriate procedure which gives effect to section 4."

COSATU supports the right to be provided with reasons to ascertain the facts and the legal basis for administrative action. The affected persons will then make an informed decision as to the next steps that should be taken to seek remedies for adverse administrative action. In broad terms we believe that:

• There should be provisions to encourage proactive disclosure of reasons consistent with the Right to Know approach in the Open Democracy Bill. A proactive approach will assist the poor and marginalised who lack the necessary resources to lodge requests for reasons.
• A standard format should be included in the bill to guide administrators on what constitute adequate reasons.

It is important that the grounds of review should be stated as positive duties rather than as negatively stated in section 7. A positive duty on all administrators should state that they must respect, protect, promote and fulfill the rights contained in the Bill of Rights when performing administrative acts, except to the extent necessary that is reasonable and justifiable in an open and democratic society. A failure to do so should constitute a ground of review, on the basis that the administrative conduct was unreasonable. Imposing a positive duty will make the bill accessible and understandable to both administrators and the public. This will further enhance the preventative aspects of the Bill.

• Against this background we recommend the grounds of review be recast as a positive duty on administrators. We do not advance specific legal formulations in to give effect to this proposal.

In its current form, the Bill is reviewable by a High Court. Any person aggrieved by the decision of an administrator can lodge a case with the High Court in terms of section 8(1). The High Court is an undesirable forum of first instance for adjudicating disputes arising from this Act. It is prohibitively expensive, its procedure is highly adversarial and it is inaccessible to ordinary people. This will place the Bill beyond the reach of ordinary people and it is not changed, the appeal mechanism will be useful mainly to the rich.

There is a tacit acknowledgement in the Bill that the High Court may be inappropriate. The Bill in terms of section 8(2) requires the Rules Board for Courts of Law to make and implement rules of procedure for judicial review. The main problem is that the Bill does not envisage the establishment of alternative forums for dispute resolutions. Section 8(3) simply states that "before the implementation of rules of procedure in terms of the provisions of subsection (2), all proceedings for judicial review must be instituted in the High Courts. Although section 1(iv) suggests that the Minister may in writing designate a Magistrate Court to adjudicate disputes arising from this Act, this is not given effect to in section 8.

• An interim dispute resolution forum should be put in place. The possibility of linking the enforcement mechanism for the Open Democracy Bill and the Administrative Justice Bill should be explored as an interim measure.
• It should be stated that a final accessible forum such as the magistrates court will be put in place with certain changes, for instance the rules of the magistrates court. Further provision should be made for the training of presiding officers.

Section 11grants the Minister wide ranging powers regarding inter alia the procedure to be followed by designated administrator or in relation to classes of administrative action in order to promote the right to procedural fairness. COSATU does not have a problem with the powers granted to the Minister. Our concern is that the wording of this section is permissive and discretionary. It says the Minister "may" not "must". These powers are of fundamental importance to the bill as a whole and the Minister should be obliged to act.

• We recommend the rewording of section 11(1) by inserting the words "must" instead of "may". This will create a duty for the Minister to formulate the required regulations.

COSATU again thanks the committee for the opportunity to participate in the public hearings. While we fully support the objective of the Bill, it is important that it be reworked to take cognisance of the issues canvassed in this submission. We hope that the committee will consider the proposals in the submission and we are willing to provide any form of assistance. The Department of Justice and the South African Law Commission should be commended for developing this legislation in an open and consultative manner.