ADMINISTRATIVE JUSTICE BILL

15 November 1999

I forward to you, for tabling before the Justice Portfolio Committee, a draft version of an Administrative Justice Bill drafted by myself. The history of this version of the bill is that after the SA Law Commission had completed their version, cabinet was unhappy it seems that new structures were created and that the bill was too detailed. The Minister of Justice and Constitutional Development, Dr P Maduna, then asked me to assist his department in reworking the SALC version to deal with those problems.

The department however decided to draft their own version.

I do believe that the draft by the department is highly problematic, does not understand the issues around administrative justice and does not give meaning to the constitutional right.

I therefore submit to you my version of an administrative justice bill for your consideration.

Prof Jeremy Sarkin

Deputy Dean

Law Faculty

University of the Western Cape

 

REPUBLIC OF SOUTH AFRICA

ADMINISTRATIVE JUSTICE BILL

(MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT)

[B - 99]

BILL

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 in section 33 of the Constitution of the Republic of South Africa, 1996; to impose a duty on administrators to give effect to those rights; to establish fair administrative standards and procedures; to provide for the review of administrative action; to enhance the accessibility of rules and standards; to promote efficient administration and to provide for matters incidental thereto.

BE IT ENACTED by the Parliament of the Republic of South Africa, as follows:-

CHAPTER 1: DEFINITIONS

Definitions

1. In this Act, unless the context indicates otherwise:-

(a) "administrative action" means any act performed, decision taken or rule or standard made, or which should have been performed, taken or made, by:-

(i) an organ of state;

(ii) a judicial officer;

(iii) a prosecuting agency;

(iv) a natural or juristic person when exercising a public power or performing a public function,

but does not include:

(aa) the functions of the National Executive referred to in sections 79(1) and (4), 84(2)(a), (b), (c), (d), (g), (h), (i) and (k), 85(2), 91(2), (3), (4), (5), 92(3)(b), 93, 97, 98, 99 and 100 of the Constitution;

(bb) the functions of the Provincial Executive referred to in sections 121(1) and (2), 125(2)(d), (e), (f), 126, 127(2)(a),(b), (c), (d) and (f), 132(2), 133(3)(b), 137, 138, 139 and 145(1) of the Constitution;

(cc) the legislative functions of Parliament, a provincial legislature or a municipal council;

(dd) the judicial functions of a judicial officer;

(ee) a decision to institute or continue a prosecution;

(ff) a decision of the Judicial Service Commission;

(gg) a decision of the Magistrates' Commission;

(b) "administrator" means an organ of state, judicial officer, prosecuting agency, or natural or juristic person taking administrative action;

(c) "Chief State Law Adviser" includes State Law Advisers and provincial State Law Advisers designated by the Chief State Law Adviser;

(d) "Constitution" means the Constitution of the Republic of South Africa, 1996;

(e) "court" means:

      1. the Constitutional Court acting in terms of section 167(6)(a) of the Constitution; or

(ii) a High Court or another court of similar status; or

(iii) a Magistrate's Court designated in writing by the Minister, after consultation with the Magistrates' Commission, either generally or in respect of a specified class of administrative action,

within whose area of jurisdiction the administrative action occurred or the administrator has its principal place of administration;

(f) "executing authority" means:-

(i) in the case of the organs of state referred to in the definition of "executing authority" in section 1 of the Public Service Act, 1994 (Proclamation 103 of 1994), the "executing authority" as so defined in relation to each such organ of state;

(ii) in the case of all other organs of state and all juristic persons when exercising public powers or performing public functions, the chief executive officer thereof;

(iii) in the case of natural persons when exercising public powers or performing public functions, such persons;

    1. "organ of state" bears the meaning assigned to it in section 239 of the Constitution;

(h) "qualified litigant" includes anyone referred to in section 38 of the Constitution:-

(i) rule" means any measure with the force of law applying generally or to a group or class of persons, including subordinate legislation made in terms of an Act of Parliament or in terms of provincial legislation, but does not include a law made by Parliament, a provincial legislature or a municipal council;

(j) "standard" means any guideline, policy, general instruction or similar measure setting out the way in which a public power or public function should be interpreted or exercised or performed, but does not include a rule or a law made by Parliament, a provincial council or a municipal council.

CHAPTER 2: JUST ADMINISTRATIVE ACTION

Obligation to give effect to the rights to just administrative action

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.

(2) 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.

(3) A failure to give effect to these rights is reviewable by a tribunal and/ or a court.

Interpretation of this Act

3. The provisions of this Act do not deny the existence of any other rights and freedoms that are recognized or conferred by common law, customary law, international law or legislation, to the extent that they are consistent with this Act.

CHAPTER 3: PROCEDURAL FAIRNESS

Procedurally fair administrative action

4. (1) Administrative action which adversely affects rights, interests or legitimate expectations must be procedurally fair.

(2) A fair procedure depends on the circumstances, but includes at least:-

(a) adequate notice of the nature and purpose of the proposed administrative action;

(b) a reasonable opportunity to make representations;

(c) a clear statement of the administrative action;

(d) adequate notice of any right of appeal or review; and

    1. adequate information of the right to receive reasons.

(3) A fair procedure may also entail:-

(a) access to relevant information, subject to the Open Democracy Act, 1999;

(b) an opportunity to obtain assistance and, in serious or complex cases, legal representation;

(c) an opportunity to appear in person, present and controvert information and argument;

    1. subject to the procedures in section 6 below, the reasons for the administrative action.

      2. (4) In exceptional circumstances an administrator may depart from the requirements in subsection (2)(a) to (d), to the extent necessary.

      (5) Where an administrator is empowered by any other law to follow a procedure which is fair but different from subsections (2) and (3), the administrator may act in accordance with that different procedure.

      (6) The Minister for Public Service and Administration for an organ of state, and the Minister for Justice and Constitutional Development for any other, may prescribe procedures to be followed by designated administrators or in relation to classes of administrative action in order to give further effect to the right to procedural fairness.

      (7) The Minister for Public Service and Administration for an organ of state, and the Minister for Justice and Constitutional Development for any other, stating reasons, may by notice in the Government Gazette in exceptional circumstances, exempt an administrator, administrative action or a group or class of administrative actions from the application of this section to the extent necessary provided that any such exemption or permission must be compatible with the right to procedurally fair administrative action.

      Administrative action affecting the public

      5. (1) Where administrative action adversely affects the public, an administrator must give effect to section 4 and in order to do so must decide whether:

      (a) to hold a public inquiry in terms of subsection (2);

      (b) to follow a notice and comment procedure in terms of subsection (3);

      (c) to hold both a public enquiry and follow a notice and comment procedure;

      (d) where the administrator is empowered by any other law to follow a procedure which is fair but different, to follow that procedure, or

      (e) to follow another appropriate procedure which gives effect to section 4.

      (2) If an administrator decides to hold a public inquiry:-

      (a) the executing authority must conduct the public inquiry or appoint a suitably qualified person or panel of persons to do so;

      (b) the executing authority or the person or panel referred to in paragraph (a) must:-

      (i) determine the procedure for the public inquiry, which must:-

      (aa) include a public hearing; and

      (bb) comply with any rules regulating the procedure to be followed in connection with public inquiries which may prescribed for an organ of state by the Minister for Public Service and Administration and or for any other by the Minister for Justice and Constitutional Development by notice in the Government Gazette;

      (ii) conduct the inquiry in accordance with that procedure;

      (iii) report in writing on the inquiry with a statement of reasons for any administrative action taken or recommended; and

      (iv) as soon as possible thereafter publish in the Government Gazette or relevant provincial Gazette a notice containing:-

      (aa) a concise summary of any report; and

      (bb) the particulars of the places and times at which the report can be inspected and copied.

      (3) If an administrator decides to follow a notice and comment procedure the administrator must:-

      (a) take appropriate steps to communicate the administrative action to those likely to be adversely affected by it and call for comments from them;

      (b) consider any comments received;

      (c) decide whether or not to take the administrative action, with or without changes; and

      (d) comply with any rules regulating the procedure to be followed in connection with notice and comment procedures, which may prescribed for an organ of state by the Minister for Public Service and Administration and or for any other by the Minister for Justice and Constitutional Development by notice in the Government Gazette.

      (4) In exceptional circumstances, an administrator may depart from the requirements in subsections (1) to (3), to the extent necessary.

      Reasons for administrative action

      6. (1) 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 the 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.

      (2) The administrator to whom the request is made must, at the time the action is taken or as soon as possible thereafter, and in any event not less than 90 days after receiving the request, give that person adequate reasons in writing for the administrative action, incorporating the essential facts and the legal basis for the action.

      (3) In exceptional circumstances, an administrator may, stating reasons, depart from the requirements in subsection (2) to the extent necessary.

      (4) Where an administrator is empowered by any other law to follow a procedure which is fair but different from subsection (2), the administrator may act in accordance with that different procedure.

      (5) The Minister for Public Service and Administration for an organ of state or the Minister for Justice and Constitutional Development for any other, may by notice, stating reasons, in the Government Gazette in exceptional circumstances, exempt an administrator, administrative action or a group or class of administrative actions from the application of this section to the extent necessary: provided that any such exemption or permission must be compatible with the right of persons adversely affected by administrative action to written reasons for that administrative action.

      (6) The Minister for Public Service and Administration for an organ of state or the Minister for Justice and Constitutional Development for any other, may by notice in the Government Gazette publish procedures for dealing with requests for reasons.

      Publication of rules

      7. (1) If an administrator decides to make a rule it must:-

      1. take appropriate steps to communicate the rule to those likely to be affected by it; and

      2. comply with any rules regulating the procedure to be followed, which may prescribed by the Minister for Public Service and Administration for an organ of state or the Minister for Justice and Constitutional Development for any other by notice in the Government Gazette.

(2) The Minister for Public Service and Administration for an organ of state or the Minister for Justice and Constitutional Development for any other in exceptional circumstances may by notice, stating reasons, in the Government Gazette exempt an administrator, a rule or a group or class of rules from the application of this section, to the extent necessary; provided that any such exemption must be compatible with the right of persons to access to all current rules.

Standards for administrative action

8. (1) Administrative action shall comply with the following:-

(a) all administrative acts must be performed in terms of a legislative or other law or other instrument recognised as a lawful source of authority to act;

    1. all administrative acts must be authorised by an empowering provision and may not contravene a law;

    2. the reason for which the administrative act is taken must be authorised by the empowering provision and must not be for a purpose or motive ulterior to that authorised by the empowering provision;

(d) all procedures or conditions prescribed by the enabling provision or otherwise by law must be complied with prior to the action being taken;

(e) all administrative acts must be procedurally fair as required by law including the Constitution, the common law, this Act or any other applicable law;

(f) all findings of law must be based on a correct interpretation of the empowering provision and may not be taken arbitrarily or capriciously;

(g) all findings or conclusions must be based on reasonable and sufficient evidence in support of those findings or conclusions;

(h) the administrator must take into account all relevant considerations and disregard all irrelevant considerations in reaching its conclusion;

(i) the administrator may not, without good cause, deviate from a standard, or adhere to a standard, if such deviation or adherence shall cause prejudice;

    1. administrative action must be taken free from the influence or dictates of another person, organ or body whose influence or participation is not permitted or required by law;

    2. administrative rules and standards must be clear and certain in their content and meaning;

    3. the grounds upon which administrative action are based must be rationally connected to-

      1. the purpose for which the action was taken;

      2. the purpose of the empowering provision;

      3. the information before the administrator;

      4. the reasons given by the administrator;

    4. the administrative action must be reasonable. In determining the reasonableness of the action -

      1. the administrator must weigh all interests directly involved;

      2. the administrator must consider all reasonable less restrictive means to achieve the purpose for which the action is taken and endeavour to follow the less burdensome possibility;

      3. the administrator must weigh up the adverse effect of the administrative action which may not be disproportionate to the benefits of the action;

      4. the administrator must weigh up the nature of the rights involved, especially a right contained in the Constitution.

(2) In this section:-

(a) "empowering provision" means the legislative or constitutional provision, the rule of common law, customary law or international law or the agreement or document in terms of which the administrative action was purportedly taken;

(b) "relevant considerations" includes all material information, objections and alternatives to the administrative action.

CHAPTER 4: JUDICIAL REVIEW OF ADMINISTRATIVE ACTION

Grounds of review

9. A court has the power to review administrative action if-

    1. it contravenes any provision of this Act or a code of good administrative conduct;

    1. it contravenes any person's rights to just administrative action as contained in this Act, any other statute, the common law, or any other law;

    1. it is otherwise contrary to law including administrative action which is materially influenced by an error of law.

Procedure for review

10. (1) A qualified litigant may not later than 180 days after the date on which the person was informed of the administrative action, or became aware of the action and the reasons for it, or might reasonably have been expected to have become aware of the action and the reasons, institute proceedings in a court for judicial review of the administrative action.

(2) The Rules Board as established by the Rules Board for Courts of Law Act 107 of 1985 must, in consultation with the Minister for Justice and Constitutional Development and within one year after the date of commencement of the Act, make and implement rules of procedure for proceedings for judicial review.

(3) In the period before the implementation of the rules of procedure in terms of subsection (2) all proceedings for judicial review must be instituted in the High Courts or the Constitutional Court.

(4) If an administrator fails to furnish adequate reasons for an administrative action it must be presumed in any proceedings for review, in the absence of proof to the contrary, that the administrative action was taken without good reason.

Remedies in proceedings for judicial review

11. The court in proceedings for judicial review may grant any order that is just and equitable, including orders:-

(1) directing the administrator:-

(a) to act in the manner the court requires;

(b) to give reasons;

(2) prohibiting the administrator from acting in a particular way;

(3) setting aside the administrative action and:-

(a) remitting the matter for reconsideration by the administrator, with or without directions; or

(b) in exceptional cases:-

(I) substituting or varying the administrative action or correcting a defect in any state of affairs resulting from the administrative action; and/or

(ii) directing the administrator or any other party to the proceedings to pay compensation;

(iii) a declaration of rights;

(iv) a temporary interdict or other temporary relief; and

(v) costs of suit.

Variation of time

12. The periods of 90 days and 180 days referred to in sections 6 and 8 may be extended or reduced:-

(1) by agreement between the parties; or

    1. by a court on application by a party where the interests of justice so require.

CHAPTER 5: DUTIES AND FUNCTIONS

13. (1) Every administrator must, subject to the Open Democracy Act, 1999:-

    1. compile and maintain an up-to-date register containing the text of all current rules and standards used by it;

(b) compile and maintain an up-to-date and accessible index of all current rules and standards used by it, including a concise description of their contents and the particulars of the places and times at which the rules and standards or further information regarding them can be inspected and copied;

(c) make available all rules and standards used by it for inspection and copying at all reasonable times by any member of the public at his or her own expense; and

(d) within 180 days of the commencement of this Act forward to the South African Law Commission copies of that register and index and thereafter send whatever changes that occur to the register and index within one month of the change..

(2) The Minister for Public Service and Administration for an organ of state, or the Minister for Justice and Constitutional Development for any other-

(a) must compile and publish protocols for the drafting of rules and standards; and

(b) formulate and publish in the Government Gazette within two years after the date of commencement of this Act a code of good administrative conduct, including a statement of executing authorities' fiduciary obligations, which is binding on all administrators;

(c) may by notice in the Government Gazette in exceptional circumstances, exempt an administrator, a rule or a group or class of rules from the application of this section, to the extent necessary; provided that any such exemption or permission must be compatible with the right of persons to access to all current rules and standards; and

    1. perform the other functions required by this Act or any other law on administrative action.

(3) The Chief State Law Adviser in conjunction with the Department of Public Service and Administration for an organ of state or the Department of Justice Minister for Justice and Constitutional Development for any other, provide training to the drafters of rules and standards.

(4) The South African Law Commission must:-

(a) compile and maintain an up-to-date national register containing the text of all current rules and standards used by organs of state;

    1. compile and maintain an up-to-date and accessible national index of all current rules and standards used by organs of state, including a concise description of their contents and the particulars of the places and times at which the rules and standards or further information regarding them can be inspected and copied;

    2. publish that national index:-

      1. monthly on the Internet; and

(ii) annually in the Government Gazette;

    1. make available all current rules and standards for inspection and copying at all reasonable times by any member of the public at his or her own expense;

    2. inquire into the law and practice relating to:-

(i) internal complaints procedures;

(ii) internal administrative appeals; and

(iii) the review by courts of administrative action,

and make its first recommendations to the Minister for Public Service and Administration and the Minister for Justice and Constitutional Development within two years after the date of the commencement of this Act as to any improvements that might be made, and for this purpose every organ of state must furnish the South African Law Commission with details of its internal complaints procedures and internal administrative appeals within 180 days after the date of commencement of this Act;

(f) inquire into the law, rules and standards for administrative action by organs of state and:-

(i) make recommendations to the Minister for Justice and Constitutional Development, the Minister of Public Service and Administration and the relevant executing authorities as to any other improvements aimed at ensuring that administrative action conforms to the rights to administrative justice in section 33 of the Constitution and the other provisions in the Bill of Rights and the basic values and principles governing public administration in section 195(1) of the Constitution;

(ii) make recommendations regarding any other matter relevant to this law.

(5) The Public Service Commission, in terms of sections 195(5) and 196(4)(a) of the constitution, shall initiate, conduct and co-ordinate programmes for educating the organs of state or employees thereof regarding the contents of this Act and the provisions of the Constitution relevant to administrative action.

(6) The South African Human Rights Commission, in terms of sections 184(2)(d) and 184(4) of the Constitution, shall initiate, conduct and co-ordinate programmes for educating the public at large and the members and employees of non-state organs regarding the contents of this Act and the provisions of the Constitution relevant to administrative action.

Reporting

14. The Ministers for Public Service and Administration and Justice and Constitutional Development as well as the Chief State Law Adviser, the South African Law Commission, the Public Service Commission and the South African Human Rights Commission must each annually, not later than the first day of March, submit to Parliament a report on their activities under this law during the previous year.

Short title and commencement

15. This Act is called the Administrative Justice Act, 1999, and comes into force on a date determined by the President by proclamation.