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CHAPTER 1

ORIGIN OF THE INVESTIGATION

1.1 On 17 November 1992, the Commission submitted a report to the Minister of Justice relating to its investigation into the courts’ powers of review of administrative acts. This followed the circulation of its earlier Working Paper 15 (1986) in that regard, the receipt of a number of responses, a request by the Minister of Justice to investigate whether it was considered that administrative appeal bodies should be reduced in number, and the consequential composition and distribution of a second Working Paper (Working Paper 34 of October 1991).

1.2 The original investigation into the courts’ powers of review of administrative acts focussed on judicial supervision by means of appeal and the exercise of its review jurisdiction by the Supreme Court (now the High Court). It, however, also considered aspects of control exercised by administrative bodies themselves, as well as the question of administrative appeals. Certain articles of the Bill of Human Rights proposed in the Commission’s interim report on group and human rights were also considered in relation to their potential impact on the investigation.

1.3 The 1992 report is a lengthy document which was widely distributed for comment at the time, and which has been the subject of analysis and comment in several subsequent administrative law studies. It is available at a number of university law libraries in South Africa, and it is also available for consultation at the Commission’s offices.

1.4 On 22 July 1994, the Minister of Justice asked the Commission to advise him whether he should proceed with the Commission’s original recommendations and legislation proposed in the 1992 report. The Minister’s question was posed in the light of the coming into operation of South Africa’s new constitutional dispensation, and particularly in view of the provisions of section 24 (dealing with administrative justice) of the 1993 Constitution.

1.5 In response, the Commission furnished a supplementary report relating to its investigation into the courts’ powers of review of administrative acts to the Minister in October 1994. It recommended that legislation should be enacted to complement and to give practical effect to section 24 of the 1993 Constitution. It advised that this legislation should provide for the review of administrative action, what was termed “an open-ended codification of the grounds for review”, including the ground of unreasonableness, and the procedural regulation of a person’s right to be furnished with reasons for administrative action. The Commission further recommended that the original proposed draft Bill be adapted in the respects apparent from the 1994 proposed draft Bill.

1.6 Both the 1992 and 1994 draft Bills were confined, it is to be noted, to judicial review of administrative action.

1.7 It appears that thereafter a fresh initiative commenced within the Ministry of Justice (Planning Unit) itself. This did not involve the Commission. It is understood that some initial discussion commenced at the request of the Planning Unit under the auspices of the Centre for Applied Legal Studies (CALS) of the University of the Witwatersrand, in collaboration with the University of Fort Hare.

1.8 The 1996 Constitution came into operation on 4 February 1997. Meetings took place between CALS, the Commission and the Planning Unit on 7 and 20 August 1997. The following process was agreed upon, and was submitted to the Minister for consideration:

(a) The review of administrative law should be placed on the Commission’s programme by the Minister as a matter of urgency.

(b) The Commission should be the overall co-ordinating body to take responsibility for managing the project.

(c) A project committee would have to be established for the project in terms of section 7A(1)(b)(ii) of the South African Law Commission Act, 1973. The names of proposed appointees were forwarded to the Minister.

1.9 Correspondence and discussions thereafter ensued relating to the formal placing of the project on the Commission’s programme, the appointment of the project committee, and other administrative matters, including the terms of reference of the project committee. The project committee was finally appointed by the Minister in November 1998. Immediate preliminary planning discussions ensued between the project leader (Mr Jeremy Gauntlett SC) and Mr Rainer Pfaff, representing German Technical Co-operation (GTZ), Professor Hugh Corder and Mr Andrew Breitenbach (appointed as researcher in respect of the project). The first meeting of the project committee took place on 15 January 1999; its recommendations (in the form of a discussion paper and draft Bill were approved by the Working Committee of the Commission in January 1999, for circulation for comment. The further course of the project is discussed in chapter 5.