CHAPTER 3

THE CONSTITUTIONAL IMPERATIVE

3.1 The constitutional imperative is plain: national legislation must be enacted to give effect to the rights set out in section 33(1) and (2) of the Constitution, and must provide for the additional matters specified in section 33(3)(a), (b) and (c). Item 23(1) of Schedule 6 of the Constitution requires this to be done “within three years of the date on which the new Constitution took effect”. Item 23(2) provides for a default position: section 33(3) of the Constitution “lapse[s] if the legislation envisaged in those sections, respectively, is not enacted within three years of the date the new Constitution took effect”.

3.2 The idea of an Administrative Justice Act is not novel. Some other countries have already shown the way (see in this regard Corder “Administrative Justice in the Final Constitution” (1997) 13 SAJHR 28, in which a number of legislative instruments elsewhere are summarised, and the background in South Africa to the contemplated legislation is traced). The topic has also received particular attention at the Breakwater workshops held in Cape Town in February 1993 (“Administrative Law for a future South Africa”: see 1993 Acta Juridica passim) and March 1996 (“Controlling Public Power in Southern Africa” published in Corder and Maluwa (eds) Administrative Justice in Southern Africa (1997)). In June 1997 the Nuffield Foundation, British Council and GTZ sponsored a workshop at the University College London on “Codification of Just Administrative Action” (the papers are unpublished, but available at the Commission’s offices). As the London and Cape Town workshops indicate, a number of eminent South African and foreign lawyers have displayed great interest in the concept and scope of an Administrative Justice Act for South Africa, and have made important contributions to the discussion, both in published and unpublished papers. The project committee has had the benefit of considering these. The contribution of international jurists to this project - and in particular those listed in Annexure F who attended the international workshop - is gratefully acknowledged.

3.3 During the course of this project recurrent themes emerged in the responses. One has been the need to guard against imposing paralysing burdens on effective administration in South Africa. Another, however, has been the need to ensure that governmental agencies whose working methods are rooted in pre-constitutional dispensation, reflect administrative justice. A third has been the question of cost and accessibility.

3.4 The Commission has given careful consideration to these competing concerns tabulated in the approximately 800 pages of written submissions and argued at the workshops. It has endeavoured to balance them in the terms of the draft Bill. The touchstone remains what the Constitution requires. This does not in the Commission’s view permit (as some have suggested) that the Bill deal only with a new formulation of review grounds, or specifying requirements relating to reasons, and leaving other parts of the scheme section 33 enjoins for future legislation. To the extent that funding has to be found to make the overall scheme work, the Commission’s enquiries to the Department of Justice suggest that this would be modest as regards the contemplated Administrative Review Council (less than R 1 million per year). The cost of adaptation by individual agencies to meet the Bill’s requirements is not possible to quantify. In both instances, the draft Bill has endeavoured to restrict the financial burden wherever this can be done without jeopardising the Bill’s effect. The Commission believes that a more just and efficient administration are mutually interdependent, and that greater administrative justice must ultimately result in savings to society. In the final analysis, moreover, the constitutional imperatives in section 33 must, as a matter of legal requirement, be met.

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