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CHAPTER 6

AN OVERVIEW OF THE DRAFT BILL

6.1 The draft Bill comprises seven chapters. The purpose here is not to paraphrase them at length, but to explain their structure. Nor is the purpose to raise points of textual detail; to facilitate reference by the reader, these are contained in the footnotes to the draft Bill itself.

6.2 The first chapter of the Bill contains a list of definitions. Following section 33 of the Constitution, at the core of the draft Bill is the concept of “administrative action”, which is widely defined. The key exclusions are listed executive functions (which are not, properly viewed, administrative functions), the legislative actions of Parliament, the provincial legislatures and (following the Constitutional Court’s recent decision in the Fedsure case supra) municipal councils. Administrative action by natural or juristic persons contemplated in section 8(2) of the Constitution and exercising a public power or performing a public function (e.g. non-statutory bodies controlling national sports codes) is specifically included. Collectively these bodies and organs of state are termed “administrators”.

6.3 Other important features of chapter 1 are the wide definition of standing (in the definition of “qualified litigant”), and provision for a review jurisdiction which includes designated magistrates’ courts.

6.4 Chapter 2 imposes a duty on all administrators to give effect to the rights in section 33(1) and (2) of the Constitution (clause 2 of the draft Bill, following section 33(3)(b) of the Constitution) and provides for the review of administrative action by the courts and independent and impartial tribunals (section 33(3)(a) of the Constitution).

6.5 In accordance with the requirement in section 33(3) of the Constitution that national legislation “be enacted to give effect to” the rights in section 33(1) and (2) of the Constitution, chapter 3 of the draft Bill requires administrative action to be procedurally fair. This is achieved by core requirements applying to all administrative action (clause 4(2)). Additional requirements may apply in appropriate circumstances (clause 4(3)). There is provision for a departure from the mandatory provisions in exceptional circumstances, and then only to the extent necessary. While some respondents have pressed for an exhaustive definition of “exceptional circumstances”, that is plainly not possible. Indeed it is established that wide words are not for that reason alone vague (see Birch v Klein Karoo Agricultural Co-op Ltd 1993 (3) SA 403 (A) at 411I-J).

6.6 Another important part of chapter 3 relates to the provision of reasons for administrative action (clause 6). This places a general obligation on an administrator (pursuant to the constitutional obligation in section 33(3) read with section 33(2) of the Constitution) to give reasons in writing when requested. This must be done within 90 days after the person was informed of the administrative action and the reasons for it, or becomes aware of it, or might reasonably have been expected to have become aware of it. (Provision is made later, as will be shown, for the amelioration of this time period, and also for the enforcement of the obligation to furnish reasons.) Flexibility is also introduced by the provisions of clauses 6(3) and (4), to ensure again that administration is not stultified by unrealistic requirements, while at the same time giving effect in a practical way to the constitutional entitlement.

6.7 Chapter 4 focuses on the grounds of review, and the procedure for obtaining it. Clause 7 is a vital part of the Bill, specifying the grounds of review established at common law, adapted in the light of recent formulations in South Africa and in other countries with a similar review jurisdiction. Two features are important: the distinction between review and appeal is retained, and the list (by virtue of clause 7(1)(h), reinforced by clause 3) is not a closed one. In this way, the opportunity exists for the courts to continue to develop and to define the South African law of review, in the spirit of section 8(3) of the Constitution.

6.8 Clause 9 specifies remedies available in proceedings for judicial review. These encompass both mandatory and prohibitory interdicts, declaratory orders, orders to give reasons, and review orders in the classic sense, setting aside the administrative action in question and either remitting it or, in exceptional cases, substituting or varying the administrative action and directing the payment of compensation.

6.9 Provision is also made for the extension of time periods specified in the statute (clause 10). There is both domestic and international consensus that no exact timetable can be laid down in advance for the institution of review proceedings: in certain circumstances, it may be wholly unreasonable for a review to be instituted after a few months have elapsed since the allegedly irregular administrative action. In other instances, it may be very difficult to launch the proceedings within a short period of time. The solution proposed is to require the institution of proceedings in all cases without unreasonable delay, but with an outer limit of 180 days of the day on which the person was informed of the administrative action, or otherwise became aware of it, or might reasonably have been expected to have become aware of the action (the language of most prescription statutes, which have survived judicial scrutiny in the past). That outer limit, in turn, must however be amenable to judicial dispensation in special cases where the interests of justice so require (clause 10). In this regard, it may be noted that there is no spectre of additional judicial proceedings: an applicant instituting proceedings after 180 days would, as part of the relief in the main proceedings, ordinarily seek in the first place dispensation in terms of clause 10, making out its case in that regard in the course of the founding affidavit. There need be no necessary duplication of proceedings (although the parties might agree or the court direct that this issue be determined first).

6.10 Chapter 5 deals with rules and standards. There is a proclivity of administrators to make rules (which are defined as measures having the force of law) or standards (which do not have such force), to fail to disclose these to those upon whom they bear, and thereafter to invoke them. The Bill must on the other hand be aware of the need not to hamstring administrators by unrealistic requirements relating to the making of rules or standards. The middle course devised is to require administrators in general and flexible terms to take appropriate steps to communicate rules to those likely to be affected by them (clause 12(1)), and to impose upon administrators flexible obligations relating to the manner in which this is to be achieved (clause 12(2)). In relation to rules and standards, administrators are required to compile registers and indices (clause 13) to ensure accessibility. There is also provision for the Administrative Review Council to devise ways of making these measures more accessible, of pruning them, and of improving their content.

6.11 Chapter 6 focuses on the contemplated Administrative Review Council. As is indicated in the appropriate footnote, this has been in contention. There has been an understandable aversion (particularly on the part of the Department of Justice) to the creation of what is seen to be yet a further governmental structure. The Commission has considered this and related objections, and substantial amendments to the original proposed body have been effected through successive drafts. The latest indication by the Department is that the contemplated ARC would cost in the order of R980 000,00 per annum to run (this out of the current Justice budget in the order of R300 million). Three points to be made in this regard are the following: that if the ARC is what it takes to obey the constitutional imperative, this limited funding has to be found; secondly, enhanced administrative justice contemplates greater state efficiency and thereby savings; and thirdly, that it is not evident that the function to be performed (given in particular the need for autonomy and public regard) is best served by seeking to warehouse the ARC’s allocated tasks within some other institution or government department.

6.12 The last chapter deals with general matters. It allows the President, in providing for the proposed Administrative Justice Act to come into operation, to set different dates for the commencement of clauses 11, 12 and 13. Some respondents have sought to go further, and to suggest that the constitutional requirements of section 33 read with item 23 of schedule 6 could be met by a more cursory dealing with certain elements (such as providing now for the grounds of judicial review, and leaving other elements to be accommodated in other statutes in the future). This is not seen as a viable way of meeting the clear constitutional injunctions of section 33. That approach also holds the prospect of introducing a system of administrative justice which, even were it to survive constitutional challenge, would be explicitly unfulfilled, temporary and subject to later amendment. It would also give rise to particular difficulties as regards ensuring that the overall scheme of administrative justice is aligned with that of access to information (this Bill being on a parallel track, as regards timing, to the Open Democracy Bill).