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ANNEXURE A

ADMINISTRATIVE JUSTICE BILL[1]

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 procedures; to provide for the review of administrative action; to enhance the accessibility of rules and standards; to promote efficient administration and for that purpose to establish an Administrative Review Council; 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,[2]

but does not include:[3]

(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;[4]

(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, 145(1) of the Constitution;

(cc) the legislative functions of Parliament, a provincial legislature or a municipal council;[5]

(dd) the judicial functions of a judicial officer;[6]

(ee) a decision to institute or continue a prosecution;[7]

(ff) a decision of the Judicial Service Commission;[8]

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

(c) “Chairperson” means the Chairperson of the Council appointed in terms of section 14(1)(a);

(d) “Chief State Law Adviser” includes State Law Advisers and provincial State Law Advisers designated by the Chief State Law Adviser;

(e) “Constitution” means the Constitution of the Republic of South Africa, 1996;

(f) “Council” means the Administrative Review Council established by section 14;

(g) “court” means:[9]

(i) 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,[10] either generally or in respect of a specified class of administrative action,[11]

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

(h) “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;

(i) “Open Democracy Act” means the Open Democracy Act, 1999;[12]

(j) “organ of state” bears the meaning assigned to it in section 239 of the Constitution;

(k) “provincial Constitution” means a provincial Constitution made in terms of sections 142 to 145 of the Constitution;

(l) “Public Protector” means the Public Protector described in sections 182 and 183 of the Constitution;

(m) “qualified litigant”[13] means:–

(i) anyone acting in their own interest;

(ii) anyone acting on behalf of another person who cannot act in their own name;

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

(iv) anyone acting in the public interest; and

(v) an association acting in the interest of its members;

(n) “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;

(o) “Rules Board” means the Rules Board for courts of law established by section 2 of the Rules Board for Courts of Law Act 107 of 1985; and

(p) “standard”[14] 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[15]

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:

(a) by a court in terms of Chapter 4 of this Act; or

(b) by any independent and impartial tribunal, including a tribunal established pursuant to section 16(c) of this Act.

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[16] 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; and

(d) adequate notice of any right of appeal or review.

(3) A fair procedure may also entail:–

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

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

(c) an opportunity to present and controvert information and argument;

(d) an opportunity to appear in person; and

(e) subject to the procedures in section 6 below, the reasons for the administrative action.

(4) If circumstances justify it, an administrator may depart from the requirements in subsection (2)(a) to (d), to the extent necessary.[17]

(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 Council 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 Council may by notice in the Government Gazette:–

(a) 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; or

(b) in order to promote efficient administration, permit an administrator to vary the requirements in subsections (2) and (3) and section 5(2) and (3), in a manner specified in the notice,

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) In cases adversely affecting the public,[18] 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) both to hold a public inquiry 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 by the Council 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 English[19] and at least one of the other official languages 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 by the Council by notice in the Government Gazette.

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

(5) In this section “public” means the public generally or any group or class of the public.

Reasons for administrative action

6. (1) Subject to the Open Democracy Act, a person whose rights have been adversely affected[20] 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.[21]

(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) If circumstances justify it, an administrator may 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 Council may by notice in the Government Gazette:–

(a) 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; or

(b) in order to promote efficient administration, permit an administrator to vary the requirements in subsection (2), in a manner specified in the notice,

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 Council may by notice in the Government Gazette publish procedures for dealing with requests for reasons.

CHAPTER 4: JUDICIAL REVIEW OF ADMINISTRATIVE ACTION

Grounds of review

7. (1) A court has the power to review administrative action if:–[22]

(a) the administrator which took the action:

(i) was not authorized to do so by the empowering provision;

(ii) acted under a delegation of power which was not authorized by the empowering provision; or

(iii) was biased or reasonably suspected of bias;

(b) a mandatory procedure or mandatory condition prescribed by law was not complied with;

(c) the action was procedurally unfair;[23]

(d) the action was materially influenced by an error of law;

(e) the action was taken:–

(i) for a reason not authorized by the empowering provision;

(ii) for an ulterior purpose or motive or in bad faith;

(iii) because irrelevant considerations were taken into account or relevant considerations not considered;

(iv) because of too rigid an adherence to a standard;

(v) because of the unauthorized or unwarranted dictates of another person or body; or

(vi) arbitrarily, capriciously or without properly considering the matter;

(f) the action itself:–

(i) contravenes a law or is not authorized by law;

(ii) is vague or uncertain;

(iii) is not rationally connected[24] to:–

(aa) the purpose for which it was taken;

(bb) the purpose of the empowering provision;

(cc) the information before the administrator; or

(dd) the reasons given for it by the administrator;

(g) the effect of the action is unreasonable, including any:–

(i) disproportionality between the adverse and beneficial consequences of the action; and

(ii) less restrictive means[25] to achieve the purpose for which the action was taken; or

(h) the administrative action is otherwise unconstitutional or unlawful.

(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) “law” means the common law, customary law, international law, the empowering provision or any other applicable constitutional or legislative provision, including this Act and the code of conduct contemplated in section 15(b)(i) of this Act; and

(c) “relevant considerations” includes all material information, objections and alternatives to the administrative action.

Procedure for review

8. (1) A qualified litigant may without unreasonable delay and not later than 180 days after the date on which the person was informed of the administrative action, 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[26] in a court for judicial review of the administrative action.

(2) The Rules Board must, in consultation with the Council 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.[27]

Remedies in proceedings for judicial review

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

(a) directing the administrator:–

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

(ii) to give reasons;

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

(c) setting aside the administrative action and:–

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

(ii) in exceptional cases:–

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

(bb) 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.

Extensions of time[28]

10. (1) The periods of 90 days and 180 days referred to in sections 6 and 8 may be extended for a fixed period:–

(a) by agreement between the parties; or

(2) The court may grant an application in terms of subsection (1)(b) where the interests of justice so require.[29]

CHAPTER 5: RULES AND STANDARDS[30]

Duties of Chief State Law Adviser

11. The Chief State Law Adviser[31] must:–

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

Publication of rules

12. (1) If an administrator decides to make a rule it must:–

(2) The Council may by notice in the Government Gazette:–

(a) 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; or

(b) in order to promote efficient administration, permit an administrator to vary the rules in subsection (1)(b), in a manner specified in the notice,

provided that any such exemption must be compatible with the right of persons to access to all current rules.

Registers and indexes of rules and standards

13. (1) Subject to the Open Democracy Act:–[32]

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

(ii) 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;

(iii) 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

(iv) annually forward to the Council copies of that register and index; and

(b) the Council must:–[33]

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

(ii) 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;

(iii) publish that national index:–

(aa) weekly on the Internet; and

(bb) annually in the Government Gazette; and

(iv) itself 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) The Council may by notice in the Government Gazette:–

(a) 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; or

(b) in order to promote efficient administration, permit an administrator to vary the requirements in subsection (1)(a), in a manner specified in the notice,

provided that any such exemption or permission must be compatible with the right of persons to access to all current rules and standards.[34]

CHAPTER 6: ADMINISTRATIVE REVIEW COUNCIL[35]

Establishment of Council[36]

14. (1) There is hereby established an Administrative Review Council consisting of:–

(a) a Chairperson nominated by the Chief Justice;

(b) the Director-General: Justice or a Deputy Director-General in the Department of the Justice nominated by the Director-General;

(c) the Director-General: Public Service and Administration or a Deputy Director-General in the Department of Public Service and Administration nominated by the Director-General;

(d) a member of the Public Service Commission;[37]

(e) the Public Protector or a senior member of the staff of the Public Protector nominated by him or her; and

(f) not fewer than four nor more than eight other suitably qualified persons appointed by the President in consultation with the Chief Justice and after consultation with the National Council of Provinces.

(2) The members of the Council:–

(a) hold office for the period, not exceeding three years, specified in their instruments of nomination or appointment; and

(b) may be re-appointed.

(3) The President may, on the grounds of misconduct, incapacity or incompetence, remove from office:

(a) the Chairperson, in consultation with the Chief Justice; and

(b) the members of the Council appointed in terms of subsection (1)(f), in consultation with the Chairperson.[38]

Functions of the Council

15. In addition to the functions conferred on the Council by this Act or any other law, the Council must:–

(a) 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 of Justice 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 Council with details of its internal complaints procedures and internal administrative appeals within 180 days after the date of commencement of this Act;

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

(i) 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;[39] and

(ii) make recommendations to the Minister of Justice, 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;[40]

(i) independent and impartial tribunals, in addition to the courts, to review administrative action; and

(ii) specialised administrative tribunals, including a tribunal with general jurisdiction over all organs of state or a number of organs of state, to hear and determine appeals against administrative action,

and make its first recommendations to the Minister of Justice within two years after the date of the commencement of this Act;

(d) inquire into the appropriateness of:–

(ii) prescribing measures for the automatic lapsing of rules and standards,

and make its first recommendations to the Minister of Justice within three years after the date of the commencement of this Act; and

  1. ( initiate, conduct and co-ordinate programmes for educating the public at large and the members and employees of administrators regarding the contents of this Act and the provisions of the Constitution relevant to administrative action.[42]

Meetings

16. (1) The Council must hold such meetings as are necessary for the performance of its functions, but must meet at least once every three months.

(2) The Chairperson or, in his or her absence, a member of the Council elected by the members present, must preside at a meeting of the Council.

(3) The Council meets at the times and places determined by itself. However, the first meeting of the Council must be held at a time and place determined by the Minister of Justice.

(4) The Chairperson may at any time convene a special meeting of the Council, and he or she must determine the time and place of the meeting.

(5) The quorum for a meeting of the Council is the majority of its members.

(6) A decision of the Council must be taken by resolution of the majority of the members present at any meeting of the Council, and, in the event of an equality of votes, the person presiding has a casting vote in addition to his or her deliberative vote.

(7) Subject to the approval of the person presiding, any person may attend or take part, but may not vote, in a meeting of the Council.

(8) When the Council is in session, a member may not take part in the discussion of, or may not participate in the making of a decision on, any matter in which he or she directly or indirectly has a material interest, unless he or she first declares the nature, extent and particulars of that interest: Provided that the Council may require that any member who declares that he or she has such an interest recuse himself or herself from its proceedings regarding such matter.

(9) A decision taken by the Council at a time when any member of the Board contravened the provisions of subsection (8), will not be invalid if the decision was taken by a majority of the members of the Council.

(10) Any member of the Council who contravenes the provisions of subsection (8) will be guilty of an offence and on conviction liable to a fine or imprisonment for a period not exceeding 12 months.

(11) The minutes of meetings of the Council and any committees appointed in terms of section 17 must be signed by the person who chairs the next meeting.

Committees

17. (1) The Council may appoint one or more committees which may, subject to the instructions of the Council, perform those functions of the Council which the Council may determine.

(2) A committee may consist of both members and non-members of the Council, but at least one member of the Council must serve on each committee.

(3) The Council may at any time dissolve or reconstitute a committee.

(4) If a committee consists of more than one member, the Council must designate a chairperson of the committee.

(5) The Council is not absolved from the performance of any function entrusted to any committee in terms of this section.

Staff

18. The administrative staff required for the proper performance of the Council’s functions must be appointed or employed subject to the laws governing the public service.

Engagement of persons to perform services in specific cases

19. (1) The Council may, in consultation with the Director-General: Justice, on behalf of the State engage, under agreements in writing, persons having suitable qualifications and experience to perform services in specific cases.

(2) The terms and conditions of service of a person engaged by the Council under subsection (1) are as determined from time to time by the Minister of Justice in consultation with the Minister of Finance.

Expenditure by Council

20. (1) The expenses incurred in connection with:–

(a) the performance of the functions of the Council;

(c) the engagement of persons to perform services in specific cases,

must be defrayed out of monies appropriated by Parliament for that purpose.

(2) The Department of Justice must, in consultation with the Chairperson, prepare the necessary estimate of revenue and expenditure of the Council.

(3) Subject to the Public Finance Management Act, 1999 (Act 1 of 1999), the Director-General: Justice:–

(a) is charged with the responsibility of accounting for State monies received or paid out for or on account of the Council; and

(b) must cause the necessary accounting and other related records to be kept.

(4) The records referred to in subsection (3)(b) must be audited by the Auditor-General.

Reporting

21. (1) The Council must annually, not later than the first day of March, submit to the Minister of Justice a report on its activities during the previous year.

(2) The report referred to in subsection (1) must be laid upon the Table in Parliament within 14 days after it was submitted to the Minister, if Parliament is then in session, or if Parliament is not then in session, within 14 days of the commencement of the next ensuing session.

CHAPTER 7: GENERAL

Short title and commencement

22. (1) This Act is called the Administrative Justice Act, 1999, and comes into force as soon as possible on a date determined by the President by proclamation.

(2) The President may set later dates for the commencement of sections 11, 12 and 13 of this Act.[43]

[1] This is the sixth draft of the Administrative Justice Bill (“the Bill”) prepared by the Project Committee of the South African Law Commission (“Project Committee” and “SALC”) and adopted by the SALC on 13 August 1999. It draws on nearly 800 pages of written responses to SALC Discussion Paper No. 81 (January, 1999); the regional workshops held at Pretoria, Durban, East London and Cape Town (June 1999); an international workshop with leading authorities in the field in the United Kingdom (July 1999); and the deliberations of the Project Committee and ultimately the SALC itself.

[2] There has been very limited opposition to this provision, which has been included because paragraph (b)(ii) of the definition of “organ of state” in section 239 of the Constitution is limited to functionaries or institutions which function in terms of legislation. It has been suggested, however, that the Bill define “public power” and “public function” in order to eliminate uncertainty as to their meaning. This is not considered feasible. The meaning of these terms will be elucidated by the courts when dealing with the Bill and with section 239 of the Constitution, drawing on existing South African and other case law in this regard.

[3] Some respondents wanted further exemptions, e.g. all decisions taken in terms of the Criminal Procedure Act, 1977 (Act 51 of 1977) and public sector employment matters (which are subject to the Labour Relations Act, 1995 (Act 66 of 1995)). Further total exemptions are however seen as undesirable. Where other statutes set specific standards of administrative justice, these will apply. See e.g. clauses 4(5) and 5(1)(d).

[4] Earlier drafts of the Bill excluded certain of the functions of the National and Provincial Executives. Litigation relating to appointments made by the President has pointed up the difficulty of a precise definition of the executive functions of the President and provincial Premiers, which may either fall short of or extend beyond the listed subsections. Consequently, it was not considered feasible to provide a closed list of executive functions. The SALC was however concerned about uncertainty as regards the distinction between executive and administrative actions, and the consequences of a general exclusion of executive functions.

[5] Some respondents argue that when municipalities exercise delegated law-making powers they act administratively (see e.g. section 10 of the Sea Shore Act, 21 of 1935). In Fedsure Life Assurance Ltd & others v Greater Johannesburg Transitional Metropolitan Council & others 1998 (12) BCLR 1458 (CC) at par 41-2, however, the Constitutional Court held that the making of municipal by-laws does not fall within the ambit of the administrative justice provision in the interim Constitution. The same applies to by-laws passed under the new Constitution. The difference between, on the one hand, by-laws made by municipalities in terms of section 156(2) of the new Constitution in relation to matters within their executive authority assigned to them by national or provincial legislation and, on the other, delegated legislation made by municipalities in relation to matters assigned to them without any executive authority, if such difference exists, is one of form, not substance.

[6] Some judicial officers perform administrative functions, e.g. issuing warrants, authorizing telephone taps.

[7] This exemption, though controversial, is designed to avoid a multiplicity of hearings about the “merits” of criminal charges, which must be determined at the trial and through the antecedent steps envisaged by the Criminal Procedure Act 51 of 1977. See Wiseman and another v Borneman and others [1971] AC 297 (HL) at 308E-G ([1969] 3 All ER 275 (HL) at 277I-278B); Park-Ross v Director: Office for Serious Economic Offences 1998 (1) SA 108 (C) at pars 14 to 25.

[8] This exemption was added by the SALC, by virtue of what it sees as the particular constitutional status of the JSC. The question has been raised whether this should also apply to the Magistrates Commission.

[9] The function of this provision, when read with clause 9, is to provide that the only courts with jurisdiction to review administrative action will be the Constitutional Court (where direct access is allowed), High Courts (and courts of similar status) and certain specially-designated Magistrates’ Courts. This provision is based on the assumption that Parliament will accept the SALC’s recommendations regarding the extension to Magistrates’ Courts of jurisdiction to rule on the constitutionality of most types of legislation and all administrative action other than conduct of the President (SALC Project 111), and will amend section 170 of the Constitution and section 110 of the Magistrates’ Courts Act 32 of 1944 accordingly. However, litigants have the option of approaching the High Court in all cases.

[10] Established in terms of the Magistrates Act 90 of 1993.

[11] Many participants in the regional workshops were opposed to the SALC’s earlier proposal that all Magistrates’ Courts be permitted to review all types of administrative action. In particular, it was suggested that the proposal would place an additional and unwelcome burden on certain magistrates and that it would be inappropriate for magistrates to exercise review powers in respect of all types of administrative action. The suggestion in this paragraph aims to meet these concerns. Conferring on the High Courts exclusive first-instance jurisdiction in all judicial review matters will make this branch of the law inaccessible to many people for whom the High Courts are expensive and, often, geographically remote forums. The Minister could use the power conferred by this paragraph to appoint, for example, “circuit magistrates” with the power to review municipal administrative action.

[12] The Bill has been drafted on the assumption that the Open Democracy Bill, 1998, will be enacted timeously and substantially in its current form. The course of the Open Democracy Bill must be closely monitored, and its interaction with the Bill carefully assessed. At present, the provisions in the Bill dealing with the publication of information (e.g. reasons or the text of standards) are made subject to the Open Democracy Bill (which, in turn, exempts certain categories of information from its freedom of information regime). It is suggested that the blunt “subject to the Open Democracy Act” formulation currently used hereafter in the Bill (see e.g. clauses 4 and 6) be replaced with a more specific reference to the exemption sections of the Open Democracy Bill.

[13] It has been suggested that this definition be omitted or amended to require applicants for judicial review to show some direct interest in the subject-matter of the litigation or some grievance special to themselves. As the right to lawful, reasonable and procedurally fair administrative action in section 33(1) of the Constitution is not restricted to persons whose rights, interests or legitimate expectations are affected or threatened (cf. item 23(2)(b) of Schedule 6 to the Constitution), this suggestion would result in a limitation of the right in section 33(1). The justifiability of the suggested restriction must, therefore, be carefully examined, particularly in the light of the SALC’s draft Class Actions Bill submitted to the Minister of Justice in 1998. In any event, it is not clear at all whether the Bill may validly restrict the rights in section 33(1) and (2) of the Constitution. Section 33(3) requires that the Bill “give effect to” those rights.

[14] It is not possible to draw exhaustive schedules of what constitute rules and standards. In difficult cases the distinction between “rules” and “standards” must be determined by the courts. It has been suggested that a provision be included to the effect that measures must be treated as standards if they are labeled as such and state that they will have no binding effect on any person. This is, however, not considered appropriate.

[15] Some respondents have suggested that section 33(3) of the Constitution requires a positive list of duties in addition to (or, in some cases, instead of) a negative list of grounds of review. They argue that setting out the duties in detail will provide a balance of emphasis between a preventive system of administrative justice and a remedy-driven approach. Drafting in positive terms obligations which, if breached, give rise to judicial review or other relief, presents particular difficulties (as a consideration of clause 7 below will indicate). Clause 15(b)(i) of the Bill moreover obliges the Council to formulate and publish in the Government Gazette a binding code of good administrative conduct within two years after the date of commencement of this Act, which goes some way towards meeting this suggestion. Non-compliance with the code will be a reviewable irregularity (cf. the definition of “law” in clause 7(2)(b)). Clauses 4 and 5 of the Bill set out specific procedures for administrative action affecting individuals and the public.

[16] Section 33 read with item 23 of Schedule 6 to the Constitution does not in terms encompass “interests”. Their omission here, however, will leave without an entitlement to the administrative justice protections in this section many persons who, for instance, are applicants for licences, pensions or other benefits to which they have no existing right, or who fall within neither the “promise” nor “past practice” categories normally associated with legitimate expectations (Administrator, Transvaal v Traub 1989 (4) SA 731 (A)).

[17] The project committee had proposed that this provision read:

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

[18] Defined (for purposes of this section) in clause 5(5).

[19] The English language requirement is a practical expedient, and accords with section 6(3)(a) of the Constitution.

[20] The right to written reasons in section 33(2) of the Constitution is limited to administrative action which adversely affects a person’s “rights” (compare the interim measure in item 23(2) of Schedule 6 to the Constitution which refers to “rights or interests”). As is apparent from clause 4(3), however, the SALC considers that, in certain cases, the right to procedural fairness in section 33(1) of the Constitution may require the giving of reasons. In such cases the procedures in clause 6 will apply.

[21] The Project Committee had proposed that section 6(1) and (2) read as follows:

“(1) Subject to the Open Democracy Act, an administrator who takes administrative action, excluding making a rule or a standard, which adversely affects a person’s rights must, at the time the action is taken or as soon as possible thereafter, inform that person in writing of:

provided that when personal notification in writing to those concerned is impracticable the particulars set out in paragraphs (a) or (b) may be communicated in another appropriate manner.

(2) 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 was informed in terms of subsection (1), 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.”

[22] Some respondents would prefer an exclusive formulation which displaces (expressly or by implication) the courts’ common law powers of review. The main reason for the closed-list approach is to provide administrators with a measure of certainty as to the administrative-justice constraints within which they must function. As it now reads, clause 7(1) attempts to provide that certainty by way of a detailed list of grounds of review. It deals with authority to act and impartiality (clause 7(1)(a)), procedure (clauses 7(1)(b) and (c)), the reasoning process (clauses 7(1)(d) and (e)) and the attributes and results of the administrative action itself (clause 7(1)(f) and (g). In view of the open-ended par (h), however, the courts may interpret, or add to, the enumerated grounds. This is consonant with the power of the courts to develop the common law to give effect to the Bill of Rights and, in particular, the right to just administrative action (cf. section 39(2) of the Constitution). See also clause 3 above, which deals with the interpretation of the provisions of the Bill, and the decision by the Supreme Court of Appeal in Commissioner of Customs and Excise v Container Logistics (Pty) Ltd/Rennies Group Limited, unreported 28 May 1999, at par 19-20.

[23] The “procedurally fair” constitutional requirement has been restated because the flexibility of the requirement makes sensible elaboration problematic. This provision must, however, be read with clauses 4 and 5, which provide specific procedures for administrative action adversely affecting individuals and the public.

[24] It has been suggested that the rationality and reasonableness grounds should be replaced with a general statement, namely “is unreasonable” plus, possibly, an attenuated list of relevant factors e.g. “having regard to the reasons given for the action and the information before the administrator”. During the regional workshops, in contrast, the overwhelming majority of participants were positive about the distinction between the two. In the light of the discussion at the international workshop and other submissions, the section has however been redrawn (in the form of a new par (g))to make it clear that review for unreasonableness is not to be equated with appeal.

[25] The phrase “less restrictive means” means alternatives with a lesser adverse effect. It is derived from section 36 of the Constitution.

[26] The words “apply to” have been replaced with “institute legal proceedings in” to make it possible for the Rules Board and the Council to allow for trial actions as well as applications, should they deem it appropriate.

[27] Some respondents argued that this presumption was too harsh a sanction for a failure or refusal to provide reasons or inadequate reasons. The practical effect of the presumption, however, will be to compel the administrator to furnish adequate reasons in its affidavits or oral evidence.

[28] It has been suggested that the Bill should not prescribe time limits, particularly within which to apply for administrative action, because in many cases those adversely affected by administrative action will be poor and have inadequate access to legal advice. This clause is designed to meet these concerns. Time limits are, however, considered important as they will promote certainty both as to the validity of administrative action and as to the processes for obtaining reasons and challenging administrative action in court.

[29] It has been suggested that the person seeking to rely on the validity of the administrative action should be required to demonstrate that an extension of time is not in the interests of justice.

[30] This Chapter has been substantially revised in an attempt to balance the disadvantages of complying with its requirements and procedures (e.g. costs, delays, unnecessary work, unintended consequences) and the advantages (transparency, responsiveness, contemporaneity) of doing so. In terms of clause 22(2) the commencement of the provisions of this Chapter can be delayed to allow the public administration first to develop the mechanisms, systems and habits which are necessary to ensure the achievement of the core requirements of administrative justice. Provision is also made for the exemption of certain administrators, rules or standards or types of rules and standards from provisions in this Chapter. The provision dealing with the automatic lapsing of rules and standards has been omitted in favour of a provision requiring the Council to investigate the feasibility of “sunsetting” (clause 15(d)).

[31] The proposal for the establishment of a Central Drafting Office has been scrapped because the Department of Justice has suggested that the functions of the Office can better and more cheaply be performed by several specially appointed State Law Advisers. The new proposal envisages that the Chief State Law Adviser will control the activities of the State Law Advisers and provincial State Law Advisers in question (cf. the definition of “Chief State Law Adviser” in clause 1).

[32] It has been suggested that the interaction between this clause and clause 6 of the Open Democracy Bill should be assessed.

[33] It has been suggested that this provision should not be enacted unless (and until) the amount of work and money required to prepare and publish the national register and national index has been assessed. Clause 22(2) allows for a delay in the commencement of this provision.

[34] Sections 101(3), 140(3) and 195(1)(g) of the Constitution suggest that a proviso of this nature is required.

[35] The Department of Justice has indicated that there will probably be insufficient funds to establish the Council (it now estimates the cost to be about R980 000 per annum), and has questioned the need for a separate organization with its own budget and staff. It has been suggested that consideration be given to the establishment of a unit within the SALC (or Human Rights Commission) to perform the functions of the Council, and that donor funding be sought for the expenditure associated with establishing the unit and its initially heavy workload (cf. clause 15). Although the SALC will investigate the feasibility of the Department’s proposal (which would require an amendment to the SALC’s founding Act), it considers the Council/unit as one of the keys to harmonizing the constitutional requirements of administrative justice and efficient administration and, hence, to the success of the Bill. If this capacity is not created, the Bill cannot work.

[36] Some respondents have suggested that qualifications for appointment be specified. Others have asked for nominations by members of the public. Yet others have suggested that members be appointed to represent specific interest groups (e.g. local authorities).

[37] The Public Service Commission has been included in view of the possible overlap between certain of the functions of the Council and those of the Commission.

[38] Persons who are ex officio members of the Council in terms of clause 14(1)(b), (c), (d) and (e) remain members for as long as they hold the relevant office. Nominee members may be substituted by the person who nominated them.

[39] Non-compliance with the code of conduct is a ground of review: see the definition of “law” in clause 7(2)(b) of the Bill.

[40] These functions of the Council support the powers of the Public Service Commission set out in section 196(4) of the Constitution.

[41] This inquiry will be guided by a number of competing considerations, including potential overlaps or interactions with the state institutions supporting constitutional democracy established by Chapter 9 of the Constitution.

[42] The aim of this provision is to make administrative law accessible.

[43] These provisions may commence later than the rest of the Act if this is necessary to allow organs of state to do the required preparation and to apply for exemptions, etc.

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