THE HUMAN RIGHTS COMMITTEE'S SUBMISSION TO THE PORTFOLIO COMMITTEE ON JUSTICE AND CONSTITUTIONAL DEVELOPMENT AND THE SELECT COMMITTEE FOR SECURITY AND CONSTITUTIONAL AFFAIRS CONCERNING THE ADMINISTRATIVE JUSTICE BILL [B56-99].

20 November 1999

1.) Introduction
1.1) The Human Rights Committee (HRC) is an independent national NGO established in 1981. We believe in protecting and promoting fundamental human rights and in sustaining and developing democracy. Through our research, monitoring and advocacy work we seek to contribute to a South Africa where everyone meaningfully enjoys the rights and benefits enshrined in the Constitution and the Bill of Rights.

1.2) The HRC believes that the objectives of social justice in South Africa can only be obtained through placing the highest premium on just administrative action. Just administrative action is an access tool for all beneficiaries of economic and social rights. The success or failure of the public's access to these entitlements will depend on the procedures adopted by administrative officials, as well as the reasonableness of their conduct. For these reasons we advocate for clear administrative law principles.

2.) Administrative Law in South Africa
2.1) Section 24 of the 1993 Constitution has had far-reaching consequences for South African administrative law. Replacing section 24, section 33 of the 1996 Constitution essentially maintains the provisions of the 1993 Constitution while simplifying the language. In particular, the 1996 Constitution eliminates the troublesome "where" clauses. This is seen as a welcome development since a coherent and consistent interpretation of the "where" clauses was not readily apparent.

2.2) However, the operation of section 33 is suspended until legislation envisaged by section 33(3) is enacted. In terms of section 33(3), national legislation must be enacted to give effect section 33(1) & (2). Section 33(1) & (2) reads as follows:

33(1) Everyone has the right to administrative action that is lawful, reasonable and procedurally fair.
(2) Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons.

2.3) While Parliament enacts the envisaged legislation, section 33(1) & (2) are to be regarded in terms of item 23(2)(b) of Schedule 6, 1996 Constitution, that is essentially the words of section 24 of the 1993 Constitution. The minor linguistic differences between item 23(2)(b) and section 24 of the 1993 Constitution seems intent to keep with the use of plain language. If legislation is not enacted by February 3, 2000, section 33(1) & (2) come into operation of their own force with section 33(3) lapsing.

2.4) The Administrative Justice Bill [B56-99] (the Bill) aims at giving effect to the right to administrative action that is lawful, reasonable and procedurally fair, and the right to be given written reasons for administrative action that adversely affects one rights; that is the right described in section 33 of the 1996 Constitution. Section 2(1) of the Bill purports to provide "in accordance with section 33 of the Constitution" for the "right to administrative justice". However, the language of this section is a mixture of section 24 of the 1993 Constitution and Item 23(2)(b) of Schedule 6. The troublesome "where" clauses are retained. As such the progress made towards clearer administrative law principles in the 1996 Constitution is undone. Secondly, the text of section 2 is at times narrower than section 33 of the 1996 Constitution and so fails to give effect to section 33.

3.) Suggestions
3.1) We suggest that the heading of section 2 of the Bill reflects the heading of section 33 of the 1996 Constitution: Just Administrative Action instead of [Right to Administrative Justice].

3.2) We hold that subsections 2(1)(a), (b) & (d) of the Bill that provide for lawful, procedurally fair and reasonable administrative action where a person's rights, interests or legitimate expectations are adversely affected or threatened are narrower than section 33 of the 1996 Constitution. Section 33 entrenches these rights with reference to all administrative action regardless whether the administrative action adversely affects the person's rights. Therefore we suggest that subsections 2(1)(a), (b) & (d) be deleted and the text of section 33(1) of the 1996 Constitution be used as section 2(1)(a).

3.3) Section 2(1)(c) of the Bill goes further than section 33 of the Constitution by providing for "interests" in addition to "rights". We welcome the extension of the right to written reasons in section 2(1)(c). We submit that "legitimate expectations" be inserted here too. We hold that the meaning of reasons that have been made "public" is not clear enough and suggest that the word "publicised" replace "public".

4.) Endorsements
4.1) The HRC endorses the proposals by the Black Sash:

• to phrase the grounds for review as positive duties;
• to make the regulations a mandatory task of the Minister;
• to rephrase section 4(1) of the Bill in line with section 33 of the Constitution; and,
• to limit the discretion of an administrator to depart from the requirements of the Bill only in exceptional circumstances.

4.2) The HRC endorses the submission made by the Commission for Gender Equality that "adequate reasons" be defined.

Contact person:
Frankie Jenkins
Researcher (Legislation)
Human Rights Committee
e-mail: [email protected]