SUBMISSION BY THE LAW SOCIETY OF SOUTH AFRICA ON THE ADMINISTRATIVE JUSTICE BILL, 1999

20 NOVEMBER 1999

  1. Introduction
    1. This submission is made by the Law Society of South Africa in response to an invitation to comment on the Administrative Justice Bill, 1999 ("the Bill") as introduced in the National Assembly.
    2. The Bill is intended to give effect to the right to administrative justice contained in section 33 of the Constitution of the Republic of South Africa, 1996 ("the Constitution"). Section 33 of the Constitution requires that national legislation be passed to "give effect" to a person's rights, in subsection (1), to "administrative action that is lawful, reasonable and procedurally fair" and, in subsection (2), to "be given written reasons" if that person's rights have been adversely affected by administrative action. Section 33(3) of the Constitution provides that the envisaged legislation must:
      1. provide for the judicial review of administrative action by a court or, "where appropriate", an independent and impartial tribunal;
      2. impose a duty on the state to give effect to the rights in subsections (1) and (2); and
      3. promote an efficient administration.

    3. In general, we believe that the Bill goes a considerable way towards meeting these constitutional imperatives.

  2. Clause 2
    1. Section 33 of the Constitution provides that:

"(1) Everyone has the right to administrative action that is lawful, reasonable and procedurally fair.

  1. Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons.
  2. National legislation must be enacted to give effect to these rights, and must-

  1. provide for the review of administrative action by a court or, where appropriate, an independent and impartial tribunal;
  2. impose a duty on the State to give effect to the rights in sub-sections (1) and (2); and
  3. promote an efficient administration."

    1. The Bill expressly provides in the preamble thereto that it is the legislation contemplated in section 33 of the Constitution. It is therefore submitted that failure to comply with section 33(3) of the Constitution would render the Bill unconstitutional. As Davis and Marcus remark:
    2. "Sub-section [33](3) sets out the requirements for the prescribed legislation. It ensures that the legislation introduced by Parliament must be tested against sub-section (3), thereby raising the possibility of constitutional challenge."

      DM Davis and GJ Marcus "Administrative Justice" in Fundamental Rights in the Constitution: Commentary and Cases Davis, Cheadle and Haysom eds. (1997) at 163.

      See also GE Devinish A Commentary on the South African Bill of Rights (1999) at 460.

    3. Section 2(1) of the Bill, which is headed "Right to Administrative Justice", in effect incorporates the administrative justice clause (section 24) of the Constitution of the Republic of South Africa, 1993 ("the interim Constitution"). It is clear that the right contained in section 33(1) of the Constitution is, in certain respects, wider than that contained in section 24 of the interim Constitution. Most importantly, the rights in the interim Constitution are only applicable to persons whose rights, legitimate expectations or interests (depending on the relevant sub-section of section 24) are adversely affected by administrative action, while "everyone" has the right set out in section 33(1) of the Constitution. As Hugh Corder states:
    4. "[Sub-sections] 33(1) and 33(2) [of the Constitution] effectively replicate what is contained in s 24 of the interim Constitution, except that the various thresholds have more or less been done away with so that the rights are cast much more widely. In principle, it seems that s 33(1) grants its benefits much more generously, in that everyone is entitled to the rights contained therein, where as the interim Constitution referred to every person whose rights, legitimate expectations or interest were affected or threatened."

      H Corder "Administrative Justice in the Final Constitution" (1997) 13 SAJHR 28 at 31.

    5. It is, therefore, submitted that clause 2 of the Bill is unconstitutional as it fails to "give effect to" the broader rights contained in section 33(1) of the Constitution. The requirements of section 33(3) of the Constitution are thus not met. The legislation contemplated in section 33(3) of the Constitution may not permit an overriding threshold limitation on the right to lawful, reasonable and procedurally fair administrative action. This conclusion is supported by the fact that only the right to written reasons is confined to "everyone whose rights have been adversely affected by administrative action" (section 33(2) of the Constitution).
    6. In addition, it is submitted that clause 2 of the Bill will have a number of undesirable consequences both in relation to the development of administrative law and the creation of uncertainty. We set out these concerns below.
    7. The rights contained in clause 2(1) of the Bill only apply where a person's rights, legitimate expectations or interests (as the case may be) are "adversely affected or threatened". In particular, clause 2(1)(b) provides that the right to procedurally fair administrative action applies where a person's rights or legitimate expectations are adversely affected or threatened. This represents a preference for the deprivation theory over the determination theory of natural justice. The deprivation theory traditionally holds that a decision must deprive an individual of existing rights before he or she can claim a right to a hearing. The determination theory, on the other hand, requires only that the decision must determine what an individual's rights are.
    8. E Mureinik "Reconsidering Review: Participation and Accountability" in Acta Juridica (1993) 35 at 36.

    9. Motivated by the fear of over-burdening the administration, our courts, in the heyday of the apartheid era, prior to the mid-1980's, predominantly applied the deprivation theory. The prerequisite of an antecedent right was authoritatively (and notoriously) confirmed by the Appellate Division in Laubscher v Native Commissioner, Piet Retief 1958 (1) SA 586 (A). The existing rights test was, however, greatly criticised as being too narrow and often led to individuals being unfairly denied their rights to procedural fairness. The existing rights test was eventually rejected by the Appellate Division in the landmark decision of Administrator of the Transvaal v Traub 1989 (4) SA 731, as Corbett CJ remarked:
    10. "[There are] many cases ... where an adherence to the formula of 'liberty, property and existing rights' would fail to provide a legal remedy when the facts cry out for one".

    11. The Appellate Division in Traub held that a person had a right to a hearing in circumstances in which he or she has a legitimate expectation of such a hearing. As Mureinik op cit, 36 states, the legitimate expectation is, in essence, a liberalised version of the deprivation theory. It merely extends the right to a hearing from existing rights to legitimate expectations which are "near rights" or "quasi-rights". As Mureinik states:
    12. "The doctrine of legitimate expectation, so far as it governs participation, operates in much the same way as the deprivation theory does, but it works with an expansive conception of deprivation. It attaches the right to be heard not only to decisions which deprive one of the legal right, but also to those which deprive one of an expectation resembling a legal right. The doctrine consequently accepts the central idea of the deprivation theory - that the right to participate in a decision ought to be given to those at risk of suffering a deprivation through that decision - that it expands the class of interests protected against deprivation from strictly legal rights to the near rights that the doctrine recognises as legitimate expectations. The doctrine extends participation to those at risk of being deprived of their near rights."

      Op cit, 37

    13. The legitimate expectation doctrine was merely a step, albeit an important one, in the development of the right to procedural fairness in South African law. It is submitted that the enactment of this liberalised deprivation theory in the Bill will inhibit the future development of the right to procedural fairness. To again quote from Mureinik, commenting on the legitimate expectation doctrine:
    14. "It was developed to extend the reach of natural justice, and to resolve the struggle in our law between the strict deprivation theory and the determination theory. It was never intended as a limitation on constitutional administrative justice and it may ultimately prove to be no more than an ephemeral moment in the history of our administrative law.

      Do we really want to wrench the expanded deprivation theory away from its original function, tear it from its historical context, and engrave it in our bill of rights as a permanent limitation upon the reach of constitutionally protected administrative justice? Surely the Constitution must strive to protect the principles which are basic to our democratic aspirations, not the transient by-products of a dynamic branch of our law. And surely the Constitution must avoid translating ideas that in one context, at a special moment in history, had a liberating effect into restrictions which, in a different context, and in an instrument designed to endure indefinitely, will have a stultifying effect."

      Op cit, 45

      It is submitted that Mureinik's comments in relation to constitutional enactment are also applicable to a statute of general application to administrative justice, such as the Bill.

    15. Clause 2(1)(d), in providing that administrative action must be "justifiable in relation to the reasons given for it", reintroduces the uncertainty surrounding this phrase in the interim Constitution.
    16. See, for example E Mureinik "A Bridge to Where? Introducing the Interim Bill of Rights" (1994) 10 SAJHR 31 at 40; and Davis and Marcus, op cit, 160 - 1.

    17. It is submitted that this uncertainty should be removed by simply providing, as section 33(1) of the Constitution does, that administrative action must be reasonable.
    18. Inconsistencies within the Bill itself will furthermore give rise to great uncertainty. For example:
      1. clause 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", whereas clause 4(1) provides that administrative action "which adversely affects rights or interests must be procedurally fair"; and
      2. clause 2(1)(c) provides that every person has the right to written reasons for administrative action which adversely affects any of his or her "rights or interests". Clause 6(1), however, only confers for a person whose "rights" have been adversely affected to request written reasons for the relevant administrative action. It is pointed out that section 33(2) of the Constitution only provides the right to written reasons on persons whose rights have been adversely affected by administrative action.

    19. In the circumstances, we recommend that clauses 2(1) and (2) should be amended to read as follows:

"2(1) Every administrator must give effect to the right of everyone to administrative action that is lawful, reasonable and procedurally fair, in section 33(1) of the Constitution.

  1. Every administrator must give effect to the right of everyone whose rights have been adversely affected by administrative action to be given written reasons, in section 33(2) of the Constitution."

    1. We point out that this is the form which clause 2(1) and (2) took in the sixth draft of the Administrative Justice Bill prepared by the Project Committee of the South African Law Commission and adopted by the Law Commission on 13 August 1999.

  1. Clauses 4(4) and 5(4)
    1. Clauses 4, 5 and 6, dealing with procedurally fair administrative action, administrative action affecting the public and reasons for administrative action, respectively, contain identical provisions, which allow an administrator to deviate from the provisions contained in such clauses "if circumstances justify it".
    2. It is accepted that an administrator should be able to depart from the requirements set out in the above clauses, if necessary (Cf Gardener v East London Transitional Local Council 1996 (3) SA 99 (E) at 103). It is submitted, however, that such departure should only be permissible in exceptional circumstances.
    3. This principle is, to an extent, already recognised in clauses 4(6) and 6(6). Clause 4(6)(a) and 6(6)(a) provide that the Minister may, in "exceptional circumstances", exempt an administrator, administrative action or a group or class of administrative actions from the application of the clause to the extent necessary. In departing from the provisions in clauses 4 and 6, the Minister is subject to an additional restraint. In a proviso to clauses 4(6) and 6(6), it is required that such departure should be compatible with the right to procedurally fair administrative action and the right to be given written reasons, respectively.
    4. It is, accordingly, somewhat incongruous that the Minister may only allow an administrator to depart from the provisions set out in clauses 4 and 6 in exceptional circumstances, while an administrator himself or herself may depart from such provisions whenever "circumstances justify it".
    5. Limiting a departure from the mandatory provisions of the relevant clauses to "exceptional circumstances", is also in accordance with the original proposals by the Law Commission.
    6. It is accordingly submitted that clauses 4(4) and 5(4) should be amended to read:

    "If exceptional circumstances justify it, an administrator may depart from the requirements referred to in subsection (2) [subsections (1) to (3)], to the extent necessary."

  2. Clause 6(4)
    1. Although clause 6(4) is worded similarly to clauses 4(4) and 5(4), different considerations apply. Clause 6(1) provides that:
    2. "Subject to the Open Democracy Act, 1999, a person whose rights have been adversely affected by administrative action and who has not been given reasons for the action may, within 90 days after the date on which that person became aware of the action or might reasonably have been expected to have become aware of the action, request that the administrator concerned furnish written reasons for the action."

    3. Under clause 6(2), an administrator who received such a request, must furnish reasons in writing not later than 90 days after receipt of the request.
    4. Similarly to clauses 4(4) and 5(4), clause 6(4) provides that an administrator may depart from the requirements in clause 6, "if circumstances justify it".
    5. Clause 6 must, however, be read with clause 10 of the Bill. Clause 10 provides for a departure from the provisions of clause 6, relating to the time-periods contained therein, by agreement between the parties or by an order of court. On the wording of the Bill, it would be possible for an administrator to unilaterally circumvent the provisions of clause 10, relating to time-periods, by acting in terms of clause 6(4).
    6. It should also be noted that the provisions of clause 6(1) are made subject to the Open Democracy Act, 1999 ("the Open Democracy Act"). The Open Democracy Act provides extensively for circumstances under which access to information may be refused (See sections 28 - 44). Clause 6(1), read with the provisions of the Open Democracy Act, would provide an adequate basis for an administrator to depart from the provisions contained in clause 6.
    7. It is accordingly submitted that clause 6(4) is inconsistent with clause 10 and should be deleted.

  3. Clause 7(1)(g)
    1. Clause 7(1)(g) provides that a court has the power to review an administrative action if -

"the effect of the action is unreasonable, including any

  1. disproportionality between the adverse and beneficial consequences of the action; and
  2. less restrictive means to achieve the purpose for which the action was taken;"

    1. This clause does not make sense and should be amended to provide administrators with certainty as to the constraints within which they must function.
    2. It is unclear how one is to measure the "disproportionality between" the "consequences" of the administrative action, as clause 7(1)(g)(i) would seem to require. If it is meant that a court may find that the effect of the action is unreasonable if the adverse consequences of the action outweigh its benefits, then the word "disproportionality" should not be used.
    3. Moreover, clause 7(1)(g)(ii) seems to require that a court reviewing administrative action for unreasonableness should take account of the fact that there were less restrictive means available to an administrator to achieve the purpose for which the action was taken, but important words which would convey this meaning have been left out of the clause.
    4. It is submitted that clause 7(1)(g) should be amended as follows:

"the effect of the action is unreasonable, taking into account all relevant factors, including:

  1. the extent to which the adverse consequences of the action outweigh its benefits, and
  2. the availability of less restrictive means to achieve the purpose for which the action was taken."

  1. Clause 10
    1. Clause 8(1) of the Bill provides that a qualified litigant must approach the court for judicial review without unreasonable delay and within 180 days after such person became aware of the administrative action, or may reasonably have been expected to do so. Clause 8 must obviously be read with clause 10 of the Bill, which provides that the period of 180 days within which judicial review may be instituted may be extended by agreement between the parties, or failing such agreement, by a court on application of the person seeking the extension. As it is most unlikely that any such agreement will be reached, this will leave an affected party with the obligation to apply to court, thereby incurring additional costs, for an extension of the time period. In terms of clause 10, the applicant will have to establish that the interests of justice require that the application be granted.
    2. These clauses could potentially infringe section 34 of the Constitution, which provides that:
    3. "Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum".

    4. Under the common law, a person is accorded a "reasonable time" within which to approach the court for judicial review. In Wolgroeiers Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad 1978 (1) SA 13 (A) at 39, Miller JA held that, where it is alleged that an application for judicial review is not launched within a reasonable time, the court must consider two questions: first, whether as a fact the proceedings were launched after an unreasonable period had elapsed and, if the answer is in the affirmative, then, second, whether the unreasonable delay should be condoned.
    5. What constitutes a reasonable delay should ultimately be determined by reference to the facts of every case (Wolgroeiers Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad 1978 (1) SA 13 (A) at 86E). In Radebe v Government of the Republic of South Africa 1995 (3) SA 787 (N), Booysen J held that:
    6. "When considering what a reasonable time is to launch proceedings, one has to have regard to the reasonable time required to take all reasonable steps prior to and in order to initiate those review proceedings. Such steps include steps taken to ascertain the terms and effect of the decision sought to be reviewed; to ascertain the reasons for the decision; to consider and take advice from lawyers and other experts where it is reasonable to do so; to make representations where it is reasonable to do so; to attempt to negotiate an acceptable compromise before resorting to litigation ... to obtain copies of relevant documents; to consult with possible deponents and to obtain affidavits from them; to obtain real evidence where applicable; to obtain and place the attorney in funds; to prepare the necessary papers and to lodge and serve those papers."

      Ibid, at 799B

    7. Other factors which may be taken into account in determining whether a reasonable time has elapsed include the complexity of the matter (Radebe at 799H and 800F), whether the opposition was notified at an early stage that the action would be challenged (ibid, at 800J) and the availability of funds (ibid, at 801D).
    8. The limitation of the right to initiate judicial review proceedings envisaged in clause 8(1) of the draft Bill must be viewed in the light of the following comments of the Constitutional Court in Mohlomi v Minister of Defence 1997 (1) SA 124 (CC) at para 11:
    9. "Rules that limit the time during which litigation may be launched are common in our legal system as well as many others. Inordinate delays in litigating damage the interests of justice. They protract the disputes over the rights and obligations sought to be enforced, prolonging the uncertainty of all concerned about their affairs. Nor in the end is it always possible to adjudicate satisfactorily on cases that have gone stale. By then witnesses may no longer be available to testify. The memories of ones whose testimony can still be obtained may have faded and become unreliable. Documentary evidence may have disappeared. Such rules prevent procrastination and those harmful consequences of it. They thus serve a purpose to which no exception in principle can cogently be taken."

    10. The court went on to hold, however, that "not all limitations which achieve a result so laudable are constitutionally sound for that reason", and that the issue had to be viewed:
    11. "against the background depicted by the state of affairs prevailing in South Africa, a land where poverty and illiteracy abound and differences of culture and language are pronounced, where such conditions isolate the people whom they handicap from the mainstream of the law, where most persons who have been injured are either unaware of or poorly informed about their legal rights and what they should do in order to enforce those, and where access to the professional advice and assistance that they need so sorely is often difficult for financial or geographical reasons."

      Ibid, at para 14

    12. In the light of these observations, there appears to be no justification for placing the burden on the applicant, in the manner contemplated in clause 8(1), read with clause 10, of the Bill, to establish that the period of 180 days referred to in clause 8 should be extended.
    13. It is submitted that the problem would be resolved by amending clause 10(2) to read:

"(2) The court may grant an application in terms of subsection (1) where the interests of justice so require, provided that the court must extend the period of 180 days referred to in section 8(1) unless the administrator can establish that such extension would cause prejudice, or would otherwise be contrary to the interests of justice."

WEBBER WENTZEL BOWENS

PROPOSED AMENDMENTS TO THE ADMINISTRATIVE JUSTICE BILL, 1999


Proposed deletions from clauses are struck through. Proposed additions are marked in italics and underlined.

Clause 2: right to administrative justice

2 (1) Every administrator must give effect to the right of everyone to administrative action that is lawful, reasonable and procedurally fair, in section 33(1) of the Constitution.

  1. Every administrator must give effect to the right of everyone whose rights have been adversely affected by administrative action to be given written reasons, in section 33(2) of the Constitution."

Clause 4: procedurally fair administrative action

4 (4) If exceptional circumstances justify it, an administrator may depart from the requirements referred to in subsection (2), to the extent necessary.

Clause 5: administrative action affecting the public

5 (4) If exceptional circumstances justify it, an administrator may depart from the requirements referred to in subsections (1) to (3), to the extent necessary.

Clause 6: reasons for administrative action

6 (4) .

Clause 7: grounds for review

7 (1)(g) the effect of the action is unreasonable, taking into account all relevant factors, including :

  1. the extent to which the adverse consequences of the action outweigh its benefits, and

(ii) the availability of less restrictive means to achieve the purpose for which the action was taken.

Clause 10: variation of time

10 (2) The court may grant an application in terms of subsection (1) where the interests of justice so require, provided that the court must extend the period of 180 days referred to in section 8(1) unless the administrator can establish that such extension would cause prejudice, or would otherwise be contrary to the interests of justice.