The rights referred to above are the rights in section 33(1) and (2) of the Constitution which provide as follows:

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

Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons."

It is submitted that the provisions of the Bill must be tested not only against the requirement that they give effect to the rights concerned but particularly against the further requirement that they "promote an efficient administration".

Before going into detail it is submitted that it must be seriously doubted whether the Bill, if enacted, will in fact "promote an efficient administration".

The reasons for the aforegoing conclusion are the following:

The procedures (clause 5) that it is proposed should precede all administrative action are too time consuming and will serve only to prolong the process government must follow in order to deliver.

The said procedures will in all likelihood require additional personnel which in turn will require additional funding by government.

To almost all the requirements relating to just administrative action there are exceptions (see, for example, clauses 4(4) and (5); 5(4) and (5)). Furthermore, these exceptions give rise to administrative decisions which in turn will be subject to the provisions of the Act, if the Bill in its present form is enacted. This too can only tend to slow matters down.

6 (a) It is submitted that to provide that "if circumstances justify it" an administrator may depart from the requirements concerned (see clauses 4(4), 5(4) and 6(4)) is not satisfactory. The reason for this is that whether the circumstances justified a departure will often, possibly too often, be a matter of debate.

In similar vein, to provide (clauses 4(5) and 6(5) of the Bill) that where an administrator is empowered by any other law to follow a procedure, he or she may do so if the other procedure is fair. Whether the other procedure is fair will also become a matter of debate.

The aforegoing in (a) and (b) can only lead to uncertainty by administrators as to how they should proceed.

It is submitted that consideration should be given to finding some alternative which will remove the potential for debate and uncertainty.

The scope for the issuing of regulations (on procedures, rules relating to public hearings and other matters) in terms of clause 11(1)(a) to (f) is wide. Accordingly the full impact of the Bill cannot be properly assessed at this stage.

It follows from the previous paragraph that it is essential that before the Act is put into operation government in all three spheres should be afforded the fullest opportunity to comment on regulations proposed in terms of those provisions.

Clause 6(3) of the Bill is a matter of particular concern. The reasons for this are that –

the phrase "adequate reasons" will give rise to debate and uncertainty, and

the presumption may be open to constitutional challenge.

The aforegoing comments should, with respect, not be seen as an attempt simply to criticise but rather as an endeavour by those who in principle support the Bill, to improve it (the Bill) by drawing attention to areas of vagueness and uncertainty.