THE BLACK SASH
SUBMISSION IN RESPONSE TO THE ADMINISTRATIVE JUSTICE BILL B 56 - 99 AS INTRODUCED IN THE NATIONAL ASSEMBLY AS A SECTION 75 BILL
The Black Sash's Interest in an Administrative Justice Act
The Black Sash's interest in an Administrative Justice Act is founded on the lived experiences of its clients, many of whom are extremely poor, exhibit low levels of literacy and rely, to a large extent, on state administered social assistance for their daily survival. This means that they depend for their daily existence on the efficiency and fairness of the state bureaucracy.
The state bureaucracy has consistently failed our clients' in the routine denial of their rights to just administrative action as illustrated in the following examples.
In making application for benefits such as disability grants, our clients, who represent only a minute percentage of people in similar predicaments, regularly encounter:
Inordinate delays. It is quite common for applications to take in excess of a year to process. Delays of this length can have catastrophic consequences for the applicant who often has recourse to no other means, and amount to a breach of the right to procedurally fair administrative action
Arbitrary refusals of applications, despite clear compliance with the legislatively stated qualifying criteria in contravention of their rights to lawful and reasonable administrative action.
A failure by the relevant official to conduct an appropriate investigation or inquiry into the facts of the matter at hand, prior to refusing an application on the alleged ground that the applicant failed, on the facts, to comply with the stated criteria. For e.g., refusing an application for a disability grant supported by a report by a district surgeon testifying to the applicant's medical disability, on the ground that the applicant is medically fit - without a further medical examination of the applicant.
Personnel within the same department adopting different interpretations of the stated qualifying criteria and what is required to satisfy same.
Refusal of applications without furnishing any reasons.
The arbitrary withdrawal of benefits previously granted and paid, without prior or even posterior notification or an explanation or reasons.
Failure to make payment of benefits for lengthy periods after an application has succeeded.
Objectives of an Administrative Justice Act - from the Black Sash Perspective
For these reasons the Black Sash lobbied strongly for the inclusion of the Right to Just Administrative Action as a Constitutional Right. However, the mere Constitutionalisation has not been sufficient to ensure administrative justice for our clients. There has been no material difference in their dealings with the state bureaucracy which continues, despite the Constitutionalisation of the right, to run roughshod over our clients rights to just administrative action.
Instances of abuses of their rights such as those listed above remain the norm rather than the exception, and our intervention and appeal to our clients rights to just administrative action has met with little success. The reasons for this are many. On the one hand, many of the administrators with whom our clients deal are ignorant of our clients' rights to just administrative action, as are our clients. As a result, when we intervene on behalf of our clients, our pleas for justice fall on deaf ears. Often the administrative agency will deny that their conduct amounts to a breach of any of the rights to just administrative action, if they respond to our appeals at all. The only available route upon such denial is a costly and time consuming application to the High Court for a pronouncement of our clients' rights. In most instances such an application cannot be made because of the prohibitive cost, and should it be made, takes a number of months to be heard, leaving our clients with no income in the interim.
The Administrative Justice Act which is required in terms of the Constitution to give effect to the rights to just administrative action and to impose a duty on the state to give effect to those rights, presents the ideal opportunity to remedy the routine administrative injustice which has become a part of our clients' lived experience. It presents the ideal opportunity for the practical realisation of the ideals embodied in section 33 of the Constitution.
To achieve these ideals the administrative justice act must:
1. Ensure that the law relating to administrative justice is accessible and understood, not only by an elite group of legal practitioners and judges, but by the people, and perhaps even more importantly, by the administrators;
2. Ensure that the procedures to enforce that law are accessible;
3. Ensure that the law is as clear and as certain as possible.
4. Be premised on the objective of prior prevention rather than posterior rectification of administrative injustice.
An administrative justice act must give effect to the rights contained in section 33. To do this it must give those rights a meaning. The rights will only acquire a meaning once the requirements for just administrative action are identified. In the past, those requirements have been indirectly contained in what are known as grounds of review.
The starting point to making the law accessible requires a shift in emphasis away from the traditional common law approach which has traditionally phrased the requirements for lawful and just administrative action as negative grounds of review. Phrased as such, the requirements for lawful and just administrative action only acquired a definite meaning in the court room once the judiciary had pronounced on the law as it applied to the given set of facts before it. As a result, the grounds of review have not been an accessible and adequate source of the requirements for just administrative action. They have been too broad and indeterminate and have, once crystallised, not been generally applicable across the board to all administrative acts. Instead, they acquired a different meaning in each separate context, depending on the given circumstances.
A shift in emphasis is necessary so that the legal requirements implicit in the grounds of review are seen by all concerned as being applicable in advance to all administrative acts, prior to the administrative action being taken, as opposed to merely being considered by the administrator upon a review application being brought. What is required is an administrative justice act based on a positive preventative model of administrative justice which sets out the requirements for all administrative conduct so as to comply with the rights to just administrative action.
We propose, as a starting point, that the grounds of review contained in the Bill be phrased as positive duties, not as negative grounds of review. We have simply taken the grounds, as contained in the Bill and reformulated them positively, attached hereto as annexure "A"
The formulation of the grounds of review as positive duties make them more immediate as duties which all administrators must comply with. In addition, these duties are rendered more comprehensible as most administrators will easily understand the language of a duty as opposed to the language of review.
However, the mere positive phrasing of grounds as positive duties will not suffice. In certain instances the positive duties will have to be elaborated on and given more substance so as to give effect, primarily to the rights to procedural fairness and reasons, so as to enable the administrators and the public to know, in advance what must be done to comply with these rights in practice.
It is recognised that that some of these supplementary duties could be dealt with in the code of good administrative conduct envisaged in section 11(1)(e) of the Bill. However that code of conduct will take time and in fact there is no guarantee that it will materialise, as section 11 does not compel the Minister to enact such a code. This is, as are all other matters in section 11, left to the discretion of the Minister.
The Bill must forego the discretionary language in section 11 and must replace the word "may" with "must", and the Minister must be give a specific time period within which to attend to the formulation and publication of the code of good administrative conduct.
First and foremost however, where it is practical and possible, the duties that must be complied with to give effect to the rights to lawful, procedurally fair and reasonable administrative action and the right to reasons, must be spelt out in the Administrative Justice Act itself. They must be included in the Act rather than the code of conduct because the code will take some time to materialise, and perhaps more importantly, if the duties are contained in regulations as opposed to the Act, they will somehow acquire a less significant and urgent status. The status and importance of these duties to the success of the rights to just administrative action must be confirmed at the highest level in their inclusion in the Administrative Justice Act.
The following points in response to the draft Bill are made against this backdrop.
The Bill is broadly speaking:
Overly - judicialised from both a substantive and procedural point of view.
From a substantive point of view - it has chosen to follow the negative grounds of review route, rather than the positive duties route and has omitted to spell out in sufficient detail the duties which must be complied with to give effect to the rights to just administrative action; and
From a procedural point of view, at present, the only remedy for contravening the Bill lies in an application for review to the High Court. The Bill does envisage the possibility of extending review jurisdiction to the Magistrate's courts and contemplates the possibility of tribunals.
4) The definition of courts @ section 1(iv) does anticipate the extension of review jurisdiction to certain magistrate's courts by the Minister, in writing, after consultation with the Magistrate's Commission. And at section 8(2), the Rules Board is instructed to make and implement rules for review within one year of the commencement of the Act.
However, at no stage does the Bill authorise or instruct the Minister or any other body to extend the jurisdiction to magistrate's court, or to do so within a specified period of time. The whole question is left open. The Minister is authorised, in terms of section 11 to make regulations regarding certain issues relating to the Bill. This does not however include any reference to the extension of the jurisdiction of the Magistrate's courts. How is this extension to be achieved?
5) Section 11 provides that:
The Minister may make regulations relating to ....inter alia
(g) the establishment, duties and powers of an advisory council to monitor the application of this Act and to advise the Minister on ... inter alia..
the appropriateness of establishing independent and impartial tribunals, in addition to courts, to review administrative action and, of specialised administrative tribunals, including a tribunal with general jurisdiction over all organs of state, to hear and determine appeals against administrative action.
The Minister is not compelled to make regulations regarding the matters specified in section 11. The word "may" renders the choice discretionary. As such there is no guarantee that the advisory council referred to, or any of the matters contemplated in section 11 will materialise, or that they will happen within a reasonable period of time. Therefore the entire question of the establishment of tribunals, which can potentially go a significant way to increasing access to administrative justice if the proceedings at such tribunals are informal and inexpensive, is left open for perhaps an indefinite period of time.
The end - result:
The Bill, the rights contained therein and the immediate remedies available in terms of the Bill will remain beyond the reach of those in most need of its assistance. The Bill to a great extent perpetuates the status quo, that is to say, it ensures that administrative justice will remain the preserve of the wealthy and those with a legal education.
It is suggested that the Bill, in addition to the earlier proposals, make provision for a general right of internal departmental appeal. This would go some way to minimising the cost of gaining access to administrative justice as well as ensuring its accessibility.
SECTION 1 - DEFINITIONS
Administrative action includes actions etc made by a ...prosecuting agency
The reason for the express singling out and inclusion of a "prosecuting agency" in the definition of administrative action is not immediately apparent as it must surely, in the ordinary sense of the term be included within the ambit of the overarching term "organ of state". It introduces an element of confusion as the term "prosecuting agency" remains undefined.
By expressly singling it out, it opens up the door for affording a "prosecuting agency" a status different to all other organs of state, or for arguing in a different context, that it is not an organ of state.
In addition, the term "prosecuting agency" is not defined and would appear to include a private prosecuting agency. As a result, a decision by a private individual to institute a private criminal prosecution and thereafter, the individuals decision not to follow through on the prosecution would be regarded as an administrative action and subject to the Bill. Is this the intention? Is this desirable?
Section 1(i)(c) should be omitted, that is to say, the definition should not refer to a prosecuting agency.
It would seem that the term "prosecuting agency" has been included in the definition for the purpose of the exclusion at 1(i)(v) which excludes the decision to institute or continue a prosecution from the definition of administrative action.
It is submitted that by omitting the specific reference to "prosecuting agency" at 1(i)(c), the state prosecutor will automatically and implicitly be included in the definition of administrative action as it will surely be an organ of state. If it is implicitly included as an organ of state, as are the national and provincial executive which are later excluded, the exclusion of the decision to institute or continue a prosecution may also simply be listed as an exclusion without the necessity for expressly singling it out generally as administrative action.
The definition of "administrator" as section 1(ii) should be amended accordingly so as not to expressly refer to "prosecuting agency" which once again is, it is submitted, automatically included in the term "organ of state".
Alternatively, should the term "prosecuting agency" be retained, it must be defined.
"Court" means....a Magistrate's court designated in writing by the Minister, after consultation with the Magistrate's Commission, either generally or in respect of a specified class of administrative action.
It is not immediately clear as to the meaning of the highlighted component of the definition.
In addition, the chosen wording opens the door for resorting to the classification of administrative functions as per the unhelpful, confusing and archaic classes of purely administrative, judicial and quasi - judicial acts found at common law.
(iv) ..any Magistrate's Court designated, and to the extent so designated by the Minister, after consultation with the Magistrate's Commission.
The definitions section fails to define a "rule" or "standard" despite the fact that these terms are a specific component of the definition of administrative action. They require definition for the purposes of distinguishing one from the other.
"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.
"standard" 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.
The concept of a standard is used throughout the Bill. In fact it is an integral part of one of the grounds contained in the Bill. At section 7(1)(e)(iv) the Bill provides that a court may review an administrative act if the action was taken "because of too rigid an adherence to a standard."
The converse situation, which it is submitted occurs far more frequently and constitutes a contravention of the principles of administrative justice, is not taken into account. That is to say, where standards which clarify or flesh out the meaning of an Act of Parliament and its requirements, or how it is t be applied, are not consistently or uniformly applied, or for that matter, not applied at all.
It is submitted that people ought to be able to rely on those standards, that is to say that it is an integral component of the right to administrative justice. People have a right, or at the least, a legitimate expectation that these standards will be applied and applied consistently. Consequently, when they are not applied, or applied inconsistently, it is submitted that this amounts to a breach of the principle of legal certainty, a breach of one's legitimate expectation that the standard will be followed, and hence at the end of the day, a breach of the right to just administrative action.
It is submitted that the status of standards must be clarified and a duty imposed on administrators to act consistently in accordance with standards where not to do so would adversely affect a persons rights, interests or legitimate expectations.
All administrators must adhere to standards unless they are required, in the interests of justice to deviate from them, and only if such deviation will not adversely affect any persons rights, interest or legitimate expectations.
SECTION 2 - RIGHT TO ADMINISTRATIVE JUSTICE
This section commences with the statement that:
"In accordance with section 33 of the Constitution, every person has the right ....
Despite this statement, three of the primary subsections fail in fact to comply with section 33 of the Constitution as they enumerate the cluster of rights making up the right to just administrative action in such a way as to:
limit the rights to an extent and in a manner not contemplated or sanctioned by section 33.
To give them a meaning and effect not contemplated or sanctioned by section 33.
One of the primary causes of these criticisms appears to be rooted in the fact that the wording and substance of the relevant rights to just administrative action contained in the Bill have been drawn, not from section 33 of the Final Constitution, but the Interim provision contained in the Interim Constitution. The interim wording has consciously been rejected by the Final Constitution's provision which has expressly chosen a broader formulation of the right to just administrative action.
S 2(1)(a) of the Bill provides that every person has the right to lawful administrative action where any of his or her rights is adversely affected or threatened.
This is not in accordance with section 33 of the Constitution which simply provides that "Everyone has the right to administrative action that is lawful..."
This wording differs expressly and fundamentally from the Interim Constitution which provides that "Every person has the right to - lawful administrative action where any of their rights or interests is affected or threatened."
The interim right is fundamentally limited in comparison to the right in the Final Constitution as it is limited in its scope of application to situations where the administrative action complained of adversely affects someone's rights or interests. Administrative action which is unlawful, but does not have this result, would not fall within the ambit of this provision and one would not have a right to challenge it.
The Bill's wording has followed the wording of the Interim rather than the Final provision and has accordingly opted for a more limited right to lawful administrative action. As in the case of the Interim provision, the right to lawful administrative action in terms of the Bill is limited to the situation where the administrative action in question adversely affects or threatens one's rights or interests.
This limitation is not envisaged or permitted by section 33 which did away with the language and limitations of the Interim provision. Section 33 of the Final Constitution is overtly and consciously different and broader in its guarantee that everyone is entitled to lawful administrative action.
For this reason it is submitted that section 2(1)(a) as it stands is unconstitutional in that it unjustifiably limits the right to lawful administrative action in a manner not contemplated by the Constitution.
Section 2(1)(b) of the Bill provides that "In accordance with section 33 of the Constitution, every person has the right to procedurally fair administrative action where any of his or her rights or legitimate expectations is adversely affected or threatened. (my stress)
As in the case of subsection (1)(a), this is not in accordance with the relevant subsection contained in section 33 of the Constitution. Section 33(1) provides that "Everyone has the right to administrative action that is ... procedurally fair."
The unqualified right to procedural fairness granted by section 33 is once again much broader than the right contained in the Interim provision. The Interim Constitution provided for a far more limited right to procedurally fair administrative action in providing that " Every person has the right to procedurally fair administrative action where any of their rights or legitimate expectations is affected or threatened."
The language of the Bill's provision is the same as the language of the Interim Constitution in its qualification of the right to procedurally fair administrative action to scenarios where one's rights or legitimate expectations are affected. This is contrary to the relevant provision in section 33 of the Constitution which is overtly broader and generally applicable to all persons.
The Interim provisions wording and limitation of the right to procedural fairness to situations where one's rights or legitimate expectations were affected mirrors the prevailing common law position in this regard. As such, the Bill also mirrors the prevailing common law position which has developed to the point where the right to procedural fairness, most notably the right to a hearing, was recognised as applying in very limited circumstances above and beyond the situation where the administrative action in question adversely affected one's rights. The right to a hearing was recognised as applying to situations where one's legitimate expectations were affected by the administrative action in question. This expansion of the right to a hearing did not expand the right to a hearing or procedural fairness dramatically as the concept of legitimate expectations was given a narrow and specific legal meaning and was applied in a very limited manner, at the behest of the judiciary, and most definitely did not extend to those cases where one's mere interests were at stake.
Accordingly, at common law, and by extension, in terms of the Bill, persons with a mere interest who ought to be afforded the protection of procedural fairness will be left without an entitlement to the protection afforded by the common law or the Bill. Persons with a mere interest, as opposed to a recognised right or legitimate expectation would include many persons who have, for instance applied for social security benefits, licences etc. That is to say, the so called "application cases". Until their applications have been granted, it has been argued and recognised, that they have no right or legitimate expectation. Therefore, they would not be entitled to procedurally fair conduct in terms of the Bill in the processing and determination of their applications.
Although section 33 of the Constitution does not expressly refer to an "interest", it must by necessary implication be intended to be included. In granting everyone the right to procedural fairness, and doing away with the limiting language of rights and legitimate expectations, it is intended that the right be given the broadest possible application, and such application necessarily must include the notion of "interests".
For this reason, section 2(1)(b) fails to comply with, or to give effect to section 33 of the Constitution.
It is essential that the Bill not expressly limit the right t procedural fairness to rights and legitimate expectations, but must include interests in the equation. Were it not to do so, this will result in the unconstitutional exclusion of "application" cases from the ambit of the right to procedural fairness, on the ground that until the application is granted, the affected party has no right or legitimate expectation and is therefore not entitled to procedural fairness.
Section 2(1)(d) provides that, in accordance with section 33 of the Constitution, every person has the right to administrative action which is justifiable in relation to the reasons given for it where any of his or her rights is adversely affected or threatened.
This is not in accordance with section 33 of the Constitution which provides that "Everyone has the right to administrative action that is ... reasonable.."
Section 33 does not limit this right to situations where one's rights are adversely affected, nor does it make any express reference to the fact that one is entitled to administrative action which is justifiable in relation to the reasons given for it, as does the Bill's provision. In imposing these limitations and in its wording, the Bill has followed the language and limitations of the Interim provision which provided that " Every person has the right to administrative action which is justifiable in relation to the reasons given for it where any of their rights is affected or threatened."
The Bill's provision fails to give effect to the right to reasonable administrative action as contained in section 33 of the Constitution, as it is required to do, as it limits and narrows the ambit of application of the right, as well as the meaning of the right to an extent and in a manner not permitted by the Constitution.
Section 33 of the Final constitution rejected the Interim wording and the implicit limitation of the right to situation where one's rights are affected followed by the Bill. Instead it has chosen to guarantee a generally applicable right of every person to reasonable administrative action, regardless of the effect of the administrative action in question.
Furthermore section 33 rejected the Interim limitation of the scope of the right to the right to administrative action which is justifiable in relation to the reasons given for it. It chose instead to guarantee the broad all-encompassing right to reasonable administrative action. This right, previously not recognised in its fullest sense at common law, encompasses as merely one sub-component, the right envisaged in the Interim provision and the bill, that is to say, the right to administrative action which is justifiable in relation to the reasons given for it. This is evidenced in the Bill itself which, in setting out the grounds for review which relate to the "reasonableness" criteria at section 7 (e)(f) & (g), refers to the connection between the reasons given and the action taken as only one of many other factors relating to the "reasonableness" requirement but unrelated to the issue of reasons or justifiability.
Section 2(1)(c) of the Bill provides that "every person has the right to be furnished with reasons in writing for administrative action which adversely affects any of his or her rights or interests unless the reasons for such action have been made public."
Once again this section reverts to the language and content of the Interim Right to reasons which provided that " every person has the right to be furnished with reasons in writing for administrative action which affects any of their rights or interests unless the reasons for that action have been made public."
In this case, section 33 of the Final Constitution is in fact narrower than the Interim provision and the Bill in its provision that " everyone whose rights have been adversely affected by administrative action has the right to be given written reasons."
The Black Sash is strongly in favour of the extended breadth of the right as envisaged in the Bill. We believe the approach adopted is the correct one in an Administrative Justice Act concerned with the prevention of administrative injustice, rather than one which focuses primarily on inaccessible cures.
Extending the right to reasons further than envisaged by section 33 is far -sighted and ultimately makes the right to administrative justice more accessible. The first port of call when one feels aggrieved by an administrative act, is to ask for reasons. In many instances, where one is furnished with adequate reasons, the process will stop there as the aggrieved party will understand the outcome and realise that his or her rights have not been offended. In the absence of the right to reasons, the aggrieved party will continue to feel aggrieved and be more inclined to litigate.
Likewise, where there is a general right to reasons, this implies a general correlative duty to furnish reasons. If administrators are aware of this duty at the time of acting, their actions will surely be more considered and reasoned with a view to being able to reduce that action and the reasons for it to writing at a later stage, upon request.
For this reason we support the current broad formulation of the right, but do suggest that the word "public" should be replaced, for the sake of certainty, with the word "published". It is not clear as to what is meant by the word "public", that is to say, when would reasons considered to have been made public? Also, making reasons "public" will not necessarily mean that they are accessible to interested and affected persons.
On the other hand the term "published" is a known legal quantity and can be clarified further through an appropriate definition such as - "published in the Government Gazette and local newspapers in English and one other official language".
The rights to just administrative action as set out in section 2(1)(a),(b) & (d) do not correlate with the substance of these rights as they are expressed in the rest of the Bill. The rest of the Bill, in the breadth it affords these rights, unlike section 2, appears to be premised on, and seeks to give effect to section 33, rather than the Interim right.
The end - result of this difference is a Bill undermined in its effectiveness by uncertainty and confusion.
For example, section 4 of the Bill entitled "Procedurally Fair Administrative Action" differs in its language and substance from its counterpart in section 2. Section 2 guarantees the right to procedurally fair administrative action where one's rights or legitimate expectations are threatened or affected.
On the other hand, section 4 provides that administrative action which adversely affects rights or interests (as opposed to legitimate expectations) must be procedurally fair.
There is no rational explanation for this difference which introduces interpretive difficulties and inconsistencies which will erode its effectiveness.
Proposed Drafting for Section 2
Section 2 should be framed in broader and more general language so as to emulate section 33 of the Final Constitution. The broad introductory framing of the rights can then be given more substance and particularity in the remaining provisions of the Bill.
Section 2 - Right to Just Administrative Action
As an introductory / founding provision it should stress the objectives of the Bill as dictated by section 33. So it should stress the rights and the obligation to give effect to those rights as section 33 prescribes that:
National legislation must be enacted to give effect to these rights, and must
provide for the review of administrative action by a court or, where appropriate, an independent and impartial tribunal;
impose a duty on the state to give effect to the rights in subsections (1) & (2)
These broad objectives must be mirrored in section 2 as an introductory section.
Section 2 - Just Administrative Action
(1)In accordance with S 33 of the Constitution, every person has the right to:
lawful, reasonable and procedurally fair administrative action; and
to written reasons for administrative action which adversely affects their rights or interests, unless those reasons have been published.
(2) Every administrator must give effect to these rights.
(3) A failure to give effect to the rights referred to in subsection (1) is reviewable -
by a court in terms of this Act, or
by an independent and impartial tribunal, but nothing in any other law may be construed to exclude the jurisdiction of a court of law to review such administrative action.
Section 4 - Procedurally Fair Administrative Action
The right to procedurally fair administrative action in section 4 is expressly linked (and limited) to situations where one's rights or interests are adversely affected or threatened.
This is contrary to the formulation of the right as contained in section 33 which confers on every person, the generally applicable right to procedurally fair administrative action.
Furthermore, the formulation of the right in section 4 does not correlate with the formulation of the right as contained in section 2 of the Bill. Section 2, as discussed under the heading "General comments" above, limits the right to situations where one's rights or legitimate expectations are adversely affected or threatened. No reference is made to one's interests which are excluded by section 2.
On the other hand, section 4 provides that administrative action which adversely affects rights or interests must be procedurally fair. As such section 4 now extends the right and correlative duty to procedurally fair administrative action to include interests, but now excludes legitimate expectations to which it fails to make any express reference.
There is no reason to exclude legitimate expectations as it is clearly intended, by virtue of the breadth of the right to procedurally fair administrative action contemplated in section 33, to be included. This inclusion is also in accord with the current status in the development of our common law. One could argue that it is implicitly included. However, there is always the danger that by not referring to it expressly, that legitimate expectations will be regarded as being excluded form the ambit of the Act and in so doing the right will be unconstitutionally limited.
In addition to the problems with the Bill's chosen formulation and resultant uncertainty and ambiguity, the Bill fails to set out in sufficient detail the duties it identifies as necessary to procedural fairness. Furthermore, it is submitted that the Bill does not provide a sufficiently comprehensive list of duties as it omits certain duties which ought, in all circumstances, to be complied with by the administrator so as to render his or her action procedurally fair.
It is submitted that the Bill must first and foremost make provision for a generally applicable right to procedurally fair administrative action, enjoyed by all, irrespective of the effect of such action on one's rights, interests or legitimate expectations. Conversely. all administrators, must at all times act procedurally fairly.
This generally applicable right and duty must be contained in broad terms in section 2 of the Bill and then repeated at section 4 in the same form, and thereafter refined and made more detailed and specific.
In making the right and duty to procedurally fair administrative action generally applicable, it does not inevitably mean that administrators will all be burdened by the duty to give all persons a hearing etc.
Having made the right to procedurally fair administrative action generally applicable, the Bill must indicate in greater detail what constitutes procedurally fair conduct and when it must be applied. In specifying what constitutes procedurally fair conduct, the Bill should provide that the specified procedures (as opposed to the broader, undetermined right to procedural fairness) only applies where the administrative action will, or is likely to adversely affect or threaten one's rights, interests or legitimate expectations. Conversely, where the administrative action will or does not adversely affect or threaten one's rights, legitimate expectations or interests, one is still entitled to procedural fairness, and the administrator is obliged to act procedurally fairly. However, as to what constitutes procedurally fair conduct will not necessarily be as specified in the Bill. The question as to what will be procedurally fair in these circumstances will depend on the circumstances of each case.
Proposed draft - section 4
Section 4(1) Administrative action must be procedurally fair.
Section 4(2) A fair procedure depends on the circumstances of each case, but includes at least the following where the administrative action to be taken will or is likely to adversely affect a person's rights, interests or legitimate expectations....
A fair procedure ...includes at least.... a clear statement of the administrative action
What does this mean? What is required of the administrator by this duty, and at what stage must it be fulfilled?
Does it mean that the notice contemplated in sub-section (a) must include a clear statement of the proposed administrative action: If so, is this requirement not already covered by the requirement that the notice required by sub-section (a) set out the purpose and nature of the proposed administrative action?
If sub-section (c) contemplates something in addition to this requirement in subsection (a), what is in fact so contemplated? What constitutes a clear statement of administrative action, and when must it be provided, by whom and to whom?
A distinction should be drawn between procedures which must be followed prior to the administrative action and those which must be followed once the administrative action has been taken, and the requirements at the respective stages set out comprehensively and in greater detail.
Section 4(2) A fair procedure depends on the circumstances of each case, but includes at least the following where the administrative action to be taken will or is likely to adversely affect a person's rights, interests or legitimate expectations -
Prior to the administrative action being taken -
adequate and timeous notice to all persons whose rights, interests or legitimate expectations are likely to be adversely affected by the proposed administrative action of:-
the nature and purpose of the proposed administrative action;
the right to make representations, either in writing or in person, as the case may be;
the date, time and venue at which such representations may be made.
(b)After administrative action has been taken, the administrator must provide affected persons with -
a clear statement of the administrative action taken or decision made, and
(ii) adequate notice of any right of appeal or review.
It is further submitted that the Bill should, in addition to these duties of procedural fairness, as amplified in the proposed draft, include in the section dealing with procedural fairness, a number of additional duties which experience has shown us, must be complied with to give effect to the right to procedural fairness.
These additional duties have been drawn from well known instances of procedural unfairness which are in many cases the norm, rather than the exception and which could and should be remedied through the imposition of the following duties on all administrators, irrespective of whether the administrative action in question is likely to adversely affect a person's rights or interests, through the Administrative Justice Act:
1. Where an administrator is requested, or is otherwise required by law to make a decision or take any other administrative action, that action or decision must be made or taken within a reasonable period of time.
2. All administrators must, prior to taking its administrative action, take all reasonable steps to ascertain all material and relevant facts.
3. Every administrator must keep a record of all material submitted, considered, accepted or rejected and all other information relevant to the administrative action taken, in a comprehensive file in such a manner so as to be accessible to the public on request.
Section 4(3)(e) provides that a "A fair procedure may (as opposed to must) also entail (in
addition to a number of other factors),.. subject to the procedures in section 6, the reasons
for the administrative action.
In keeping with the generally and broadly applicable right to written reasons provided by the Bill at section 2, it is suggested that the right to reasons be recognised as a peremptory as opposed to a discretionary component of the right to procedurally fair administrative action. That is to say that it always be regarded as necessary and that the right to reasons be incorporated in the list of requirements under section 4(2).
Section 4(2) A fair procedure depends on the circumstances of each case, but includes, where the administrative action to be taken affects a persons rights, interests or legitimate expectations, at least ...
(d) subject to the procedure in section 6, the reasons for that administrative action.
Provides that "If circumstances justify it, an administrator may depart from the requirements referred to in sub-section 2, to the extent necessary."
The standard for allowing an administrator to depart from these requirements should be higher. That is to say, the standard should be "exceptional circumstances" as per the formulation and standard adopted by the Bill in section 4(6)(a) which provides that "The Minister may, by notice in the Gazette - 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."
If exceptional circumstances justify it, an administrator may depart from the requirements referred to in subsection (2), to the extent necessary.
Section 4(5) provides that "Where an administrator is empowered by any other law to follow a procedure which is fair, but different from the provisions of subsections (2) and (3), the administrator may act in accordance with that different procedure."
Clearly what is contemplated here is the case where existing legislation makes provision for a procedure to be followed. However, it is submitted that the proviso in section 4(5) is far too broad and must be limited. It is submitted that any procedure which does not comply with subsection (2) cannot, by its very definition be fair. Subsection (2) contains a statement, in view of the mandatory language, of the absolute minimum standard for procedurally fair administrative action. These requirements must always be complied with as they are the essence of fair procedures, they are the standard in fact against which any existing procedures contained in other legislation will be tested against to determine if they are fair. Therefore, section 4(5) is in fact contradictory as it stands.
Where an administrator is empowered by any other law to follow a procedure which is fair but different from the provisions of subsection (3) [the reference to subsection  must be omitted], the administrator may act in accordance with that different procedure.
It is suggested that all existing legislation and the procedures contained therein be scrutinised with a view to assessing their fairness and that the Minster be authorised to appoint an appropriately qualified body to conduct this investigation and furnish a report and recommendations.
Section 6 - Reasons for Administrative Action
It is submitted that the right to reasons constitutes a primary key to ensuring administrative justice. On the one hand it provides aggrieved parties with an inexpensive tool to gain access to the proceedings and the administrative action or decision taken, allowing them to assess the relevant administrative conduct. It is submitted that such access will often suffice to satisfy an aggrieved person who will, on the basis of the information at hand, better understand and therefore accept the decision made.
On the other hand, where an administrator knows that there is a strong chance that the reasons for his or her administrative action may be called for at a later stage, that administrator will take greater care in ensuring that his or her conduct does not contravene the right to just administrative action.
In this sense, the right to reasons is potentially a significant tool in ensuring a pro-active, Administrative Justice Act designed to ensure access to administrative justice.
However to achieve these objectives through the codification of the right to written reasons, the relevant provisions in the Bill must be designed to fulfill an educative function. It must be borne in mind that the right, and correlative duty to give reasons is a new institution in our law. There was no comparable duty at common law and hence it may be assumed that Administrators are not familiar with this duty and therefore cannot be expected to know what is required of them when furnishing reasons.
The Bill must therefore set out in some detail what is required to comply with the duty to give adequate reasons. At present, section 6 does not provide sufficient guidance in this regard.
In formulating what is required, the drafters may be guided by the fact that the reasons furnished, must at the end of the day, reveal whether or not the administrative action was lawful, procedurally fair and reasonable. The adequacy of the reasons will depend on whether they reveal this information.
The following formulation is suggested, as it is submitted that if the information specified therein is provided, the person who reads the reasons will be reasonably able to assess whether or not his or her right to administrative justice have been infringed.
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 more than 90n days after receiving the request, give that person adequate reasons in writing for the administrative action. Adequate reasons will include, but no be limited to:
(a) a reference to the relevant empowering Act and specific provision in terms of which the administrative action was taken (including references to applicable regulations); and
(b) a statement of any standard in terms of which the action was taken, if any; and
(c) a statement of the essential findings of fact and the law upon which the action was based, with sufficient detail so as to enable the reader to know on what grounds the action was taken; and
(d) a statement as to any alternative, less restrictive courses of action which were considered, raised or advocated which were not followed and why they were not followed.
Grounds of Review - Section 7
We reiterate once again that we would prefer to see the grounds of review to be phrased as positive duties as set out in annexure "A" so that the Bill may be more accessible and educative.
We suggest that the following duty be included in the list of positive duties which all administrators must comply with so as to give effect to the right to just administrative action.
Every administrator must respect, protect, promote and fulfil the rights contained in the Bill of Rights except to the extent reasonable and justifiable in an open and democratic society.
A failure to do so constitutes a ground of review, on the basis that the administrative act was unreasonable.
Section 11 - Regulations
In view of the fact that many substantive issues, such as the procedures to be followed in respect of public hearings, the question of tribunals etc are left for future determination by the Minister via regulations, it is submitted that the Bill should make provision for public participation in the making of those regulations.
It is suggested that the Regulations to be made in terms of this Bill be subject to prior "notice and comment procedures" to facilitate public participation.
The Minister must, prior to making any regulations contemplated by this section:
1) publish a notice in the Government Gazette containing -
a) the text of the proposed regulation;
b) a request for written comments regarding the proposed regulation to be addressed to a specified address within a period of not less than 21 days after the date of publication of such notice.
2) on the expiry of the period within which comments may be lodged in terms of the notice referred to in paragraph (1), consider the comments and decide whether or not to make the proposed regulation.