1. Summary of Recommendations


2. Introduction

COSATU welcomes the opportunity to participate in the public hearings on the Administrative Justice Bill (hereafter the Bill). We support the objectives of the Bill inter alia "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." Our members and their families rely on administrative actions from the state including support in the form of unemployment insurance and state old age pensions. The state has the obligation to implement programmes and measures to progressively realise socio-economic rights such as the right to access health care services and this entails numerous administrative actions. Further, private bodies routinely take decisions that affect millions of our constituency and the broader society. Administrative justice is essential to protect people from arbitrary decisions by organs of state and private bodies, which affect their rights and livelihoods.

The enactment of this piece of legislation is sanctioned by 33(3) of the Constitution. In terms of this section national legislation must give effect to the right to administrative justice contained in section 33(1) and (2) of the Constitution. Legislation must further provide for the review of administrative action by a court, or where appropriate, an independent and impartial tribunal; and impose a duty on the state to give effect to the right to administrative justice.

Apart from the constitutional imperative, there is a political logic underlying administrative justice. Administrative justice should not be conceived purely as pitting the individual against the state, but as transforming the relationship between the state and citizens. This legislation will play a vital role in uprooting the entrenched culture of secrecy and lack of accountability inherited from the apartheid state. It will therefore play a significant role in the transformation of the state and how it relates to citizens. In this endeavour, it will consolidate current efforts to transform the state and give further impetus to initiatives such as the White Paper on Transforming Public Service Delivery, popularly known as "Batho Pele" (People First).

The White Paper seeks to transform the manner in which public services are delivered to the public by emphasising a public service ethos which rests on participation, timely and accurate information, redress and so forth. In particular, it emphasise the need to provide the public with reasons and taking corrective steps whenever a service falls below the expected standards. The vision put forward in the White Paper is derived from the RDP, the White Paper on Transforming the Public Service and section 195 of the constitution.

In addition, the Bill will engender accountability within the private sphere. The inclusion of private bodies in the ambit of the Bill is important as these bodies take administrative actions that affect people's lives. In addition, the traditional demarcation between private and public is becoming blurred as services traditionally supplied by the public sector are now provided by the private sector. Some private institution such as the large corporations effectively exercise 'social' rather than 'private power'. Their decisions and action can have an impact, both negatively and positively, in people's access to socio-economic rights.

Administrative Justice legislation should be drafted in a manner that is accessible to ordinary people who will rely on this piece of legislation. Additionally, the enforcement mechanism should be accessible, cheap and understandable by ordinary people. On both counts, we are concerned that the bill fails to meet its objective of being accessible to ordinary people. This submission seeks to address areas where the bill is defective and reinforce its strengths. It will focus on:

Proposed legal amendments are attached as annexures to this submission. In some respects these are the product of collective deliberations with other NGO's particularly Black Sash. While in some respects we share the concerns raised in the submissions of these organisations, there may be areas where there are differences of nuance or emphasis.

For this legislation to be workable, it is important to balance the right to administrative justice and the capacity of the state. It is therefore important to avoid placing too onerous a burden on the state, which may abort the legislation. However, this legislation should not be seen as a burden. Giving reasons prevents unnecessary disputes and minimise friction if reasons are cogent. It will also ensure much needed institutional transformation. As such COSATU supports a gradual or incremental approach to the implementation of the Act. However, this should not be construed in such a way that it affects the right to administrative justice or defers its realisation.

3. Definitions

3.1 Administrative Action

Section 1(i) defines administrative action as:

"any act performed, decision taken, rule or standard made, or such act, decision, rule or standard which should have been performed or taken or made, by -

  1. an organ of state;
  2. judicial officer;
  3. a prosecuting agency; or
  4. a natural or juristic person when exercising a public power or performing a public function."

COSATU welcomes this definition, particularly the inclusion of natural or juristic persons. This means that all persons and institutions exercising a public power or public functions will be covered by this legislation.

The Bill attempts to separate administrative actions from judicial, legislative and executive functions performed by judicial officers, the legislatures and the executive at national, provincial and local level. It achieves this by excluding such functions from the scope of the Bill. A decision to institute or continue a prosecution is also excluded from the Bill. Although it is difficult to delineate the dividing line between 'administrative' and 'executive' functions, this is important in the light of the recent Constitutional Court judgement in the case of The President of South Africa v South African Rugby Union (SARFU) CCT 17/98. In the judgement delivered on this case at [134] it is stated that:

"All the provisions of the Bill of Rights are binding upon the executive and all organs of state.

In section 33 the adjective "administrative" not "executive" is used to qualify "action". This suggests that the test for determining whether conduct constitute "administrative action" is not who performs the action but the nature of the action...The focus of the inquiry as to whether conduct is "administrative action" is not on the arm of government to which the relevant actor belongs, but on the nature of the power he/she is exercising [14]

Some acts of members of the Executive, in both the national and provincial spheres of government will constitute "administrative action" as contemplated by section 33, but not all acts by such members will do so [142]"

From this it is clear that the question is not where the person taking administrative action belongs, rather, whether the action taken is regarded as an administrative action, which falls within the ambit of this Bill. Therefore, a blanket exclusion of certain governmental bodies from this Bill will not meet the requirements of this Bill. Secondly, it is clear that not all actions taken by governmental bodies such as the executive constitute administrative action, hence the need to exclude them from the purview of this legislation.

Having said this, we have concerns with the inclusion of "prosecuting officer" as a separate category. First, it is not apparent why prosecuting officer is mentioned separately as this can be covered under organs of state. The unintended consequence of this approach is to create a situation where prosecuting agencies will believe that they are not organs of state. Secondly, the Bill does not define the term "prosecuting agency".


3.2 Qualified Litigant

In terms of section 1(ix) a "qualified litigant" means:

"(a) anyone acting in his or her own interest;

(b) anyone acting on behalf of another person who cannot act in his or her own name;

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

    1. anyone active in the public interest; or
    2. any association acting in the interest of its its members."

This definition is in line with section 38 of the Constitution and is supported by COSATU as it recognise that organisations such as trade unions may institute actions on behalf of their members.


4. Right to Administrative Justice

Although, section 2 of the Bill seeks to give effect to section 33 of the Constitution, it imports the language of the Interim Constitution. A number of concerns emanate from this approach. (1) Section 2(1)(a) provides that "every person has the right to lawful administrative action where any of his or her rights is adversely affected or threatened." This marks a departure from section 33(1), which provides that "everyone has the right to administrative action that is lawful, reasonable and procedurally fair." The consequence is to limit the right contained in section 33(1) with the insertion of the words "where any of his rights or her rights is adversely affected or threatened." The scope of the right is now limited to where an individual's right is adversely affected or threatened, which fundamentally alters the right in the Constitution.

Therefore, section 2(1)(a) unjustifiably limits the right to lawful administrative action in a manner not contemplated by section 33 of the Constitution. In our view, legislation should expand rather than restrict constitutional rights and the current section may not stand constitutional scrutiny.

(2) Section 2(1)(b) provides that "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." Again this contradicts section 33 which simply states that "everyone has the right to administrative action that is procedurally fair." The right to procedurally fair administrative action is far broader in the final constitution than in the interim constitution. In the latter case it is confined to administrative action where an individual's rights or legitimate expectations are adversely affected or threatened.

(3) Even on its own terms, the Bill uses concepts such as rights, interest and legitimate expectations in an inconsistent manner. For instance section 2(1)(a) talks about "rights and interests" but exclude legitimate expectations. Whereas section 2(1)(b) includes legitimate expectations but exclude interests. In our view, interests and legitimate expectations should be included in the Bill. A right is a legally defined interest that enjoys legal protection, while an interest is something which is still to be defined and investigated. It has been accepted that interests are also important and therefore, deserve legal protection. In broad terms legitimate expectations provide the holder of the expectation with protective safeguards to prevent others from depriving him/her of the expectation.

(4) Section 2(1)(d) suffers from the similar defects as it simply repeats the provisions of the Interim Constitution. It provides that "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." Section 33 rejected this wording and the inherent limitation of the right to situations where one's rights are affected or threatened. It has chosen to guarantee a generally applicable right of every person to reasonable administrative action.



5. Procedurally Fair Administrative Action

5.1 Fair Procedure

Procedurally fair administrative action is intertwined with the concept of 'natural justice'. In legal terms, natural justice is mostly concerned with "fairness", accordingly it provides that justice most not only be done but must be seen to be done. Therefore, procedurally fair administrative actions should adhere to the principles of natural justice.

Section 4(1) excludes legitimate expectations and as argued above this should be included. Currently the section provides that "administrative action which adversely affects right or interest must be procedurally fair.

Secondly, 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. This is important as it will place positive duties on administrator and clarify actions they need to take prior and after administrative action is taken. Such an approach will go a long way in assisting both administrators and people affected by administrative decisions. A preventative approach is desirable to a remedial approach and may assist to limit litigation.


5.2 Relationship with other Laws

Section 4(5) provides that "where an administrator is empowered by any other law to follow a procedure which is fair but different from subsection (2) and (3), the administrator may act in accordance with that different procedure." This section is important as it insulates and recognises procedures established in terms of other law. Further it provides an overriding test that such procedure should be fair. However, in order to create certainty the wording in this section should change from "may" to "must" so that it is clear that an administrator has to follow procedure set in other legislation.

Of particular concern to COSATU is the relationship between this Bill and labour laws. For example section 32 of the Labour Relations Act (LRA) empowers the Minister of Labour to extend collective agreement to non-parties by request from the bargaining council. In this regard the Minister of Labour undertakes administrative action but follows the procedure in the LRA. As such section 4(5) will be a protective safeguard as it allows procedures in terms of other laws as long they are fair.


5.3. Variation of Procedure

In several instance the bill permits the variation or deviation from set procedure. For instance, section 4(4) permits an administrator to 'depart from the requirements to follow the procedure set out in section (2) which inter alia include adequate notice of the nature and purpose the proposed administrative action" where it is justifiable under the circumstances. Other provisions include sections 4(6)(a), 5(4), 6(a). The intention behind this approach is to allow for flexibility and to cater for unforeseen events. COSATU does not have a fundamental problem with this approach.

In addition, the Minister is empowered to exempt an administrator or categories of administrators from following the procedure set in section 4. In our view, the Minister should publish his/her notice for public consultation and parliamentary scrutiny, prior to its implementation. Further, the exemption should be for a limited period, within which the administrator must take steps to ensure that they have the capacity to comply with the procedure set in section 5.


6. Administrative Action Affecting the Public

COSATU welcomes the provision of section 5 which will ensure public participation in policy-making. Section 5(1) provides that where an administrative action adversely affects the public "an administrator must give effect to section 4, and in order to do so he or she or it must decide whether -

    1. to hold a public inquiry in terms of subsection (2);
    2. to follow a notice and comment procedure in terms of subsection (3);
    3. to follow the procedures in both subsection (2) and (3);
    4. where the administrator is empowered by any other law to follow a procedure which is fair but different; to follow that procedure; or
    5. to follow another appropriate procedure which gives effect to section 4."


7. Reasons for Administrative Action

COSATU supports the right to be provided with reasons to ascertain the facts and the legal basis for administrative action. The affected persons will then make an informed decision as to the next steps that should be taken to seek remedies for adverse administrative action. In broad terms we believe that:


8. Grounds of Review and Enforcement Mechanism

8.1 Grounds of Review

It is important that the grounds of review should be stated as positive duties rather than as negatively stated in section 7. A positive duty on all administrators should state that they must respect, protect, promote and fulfill the rights contained in the Bill of Rights when performing administrative acts, except to the extent necessary that is reasonable and justifiable in an open and democratic society. A failure to do so should constitute a ground of review, on the basis that the administrative conduct was unreasonable. Imposing a positive duty will make the bill accessible and understandable to both administrators and the public. This will further enhance the preventative aspects of the Bill.



8.2 Procedure for Review

In its current form, the Bill is reviewable by a High Court. Any person aggrieved by the decision of an administrator can lodge a case with the High Court in terms of section 8(1). The High Court is an undesirable forum of first instance for adjudicating disputes arising from this Act. It is prohibitively expensive, its procedure is highly adversarial and it is inaccessible to ordinary people. This will place the Bill beyond the reach of ordinary people and it is not changed, the appeal mechanism will be useful mainly to the rich.

There is a tacit acknowledgement in the Bill that the High Court may be inappropriate. The Bill in terms of section 8(2) requires the Rules Board for Courts of Law to make and implement rules of procedure for judicial review. The main problem is that the Bill does not envisage the establishment of alternative forums for dispute resolutions. Section 8(3) simply states that "before the implementation of rules of procedure in terms of the provisions of subsection (2), all proceedings for judicial review must be instituted in the High Courts. Although section 1(iv) suggests that the Minister may in writing designate a Magistrate Court to adjudicate disputes arising from this Act, this is not given effect to in section 8.



9. Regulations

Section 11grants the Minister wide ranging powers regarding inter alia the procedure to be followed by designated administrator or in relation to classes of administrative action in order to promote the right to procedural fairness. COSATU does not have a problem with the powers granted to the Minister. Our concern is that the wording of this section is permissive and discretionary. It says the Minister "may" not "must". These powers are of fundamental importance to the bill as a whole and the Minister should be obliged to act.


10. Conclusion

COSATU again thanks the committee for the opportunity to participate in the public hearings. While we fully support the objective of the Bill, it is important that it be reworked to take cognisance of the issues canvassed in this submission. We hope that the committee will consider the proposals in the submission and we are willing to provide any form of assistance. The Department of Justice and the South African Law Commission should be commended for developing this legislation in an open and consultative manner.


11. Annexure: Proposed Legal Amendments

[ ] = delete

___ = insert



Proposed Amendment




Omit section 1(i)(c): prosecuting agency

This is covered by organ of state and it is not clear why prosecuting agency is singled out.



Replace current section 2 with the following:

"2. (1) In accordance with Section 33 of the Constitution, every person has the right to -

  1. lawful, reasonable and procedurally fair administrative action; and
  2. to written reasons for administrative action which adversely affected their rights

(2) Ever administrator must give effect to these rights.

(3) A failure to give effect to the rights referred to in subsection (1) is reviewable -

  1. by a court in terms of this Act; or
  2. 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."


The current section 2 deviates substantially from section 33 of the Constitution. The purpose of the amendment is ensure that this section is in line with the Constitution.



Amend section 4(1), (2), (5) & (6)as follows:

"4.(1) Administrative action which adversely affects a person's rights, interests or legitimate expectation must be procedurally fair

(2) A fair procedure depends on the circumstances of each case but, includes at least -

  1. Prior to the administration action being taken -

  1. adequate and reasonably timely notice to all persons whose right, interest or legitimate expectations are likely to be adversely affected by the proposed administrative action of -

(aa) the nature and purpose of the proposed administrative action;

(bb) the right to make representations, either in writing or in person, as the case may be;

(cc) the date, time and venue at which such representations may be made.

  1. After administrative action has been taken, the administrator must provide affected persons with -

  1. a clear statement of the administrative action taken or decision made within a reasonable period of time after having taken such action or made such decision; and
  2. where such administrative action adversely affects a person rights, interest or legitimate expectations, adequate notice of any right of appeal or review.

(5) 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), (a) the administrator [may] must act in accordance with that different procedure.

(b) The Minister , in conjunction with other Ministers, shall undertake an audit of legislation to ensure that the procedure in other laws meets the requirements of fair administrative procedure.

(6) The Minister, after public consultation, may by notice in the 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 for a period to be determined by the Minister; or ...


The purpose of this amendment is to include interests and legitimate expectations in administrative justice. In addition, it seek to draw the distinction between procedures which must be followed prior to the administrative action and those which must be followed once the administrative action has been taken.

Further, the amendment seek to create a core or minimum procedure which should not be deviated from, otherwise this will weaken administrative justice.

Section 4(5) attempts to insulate the procedures in other acts, but uses the term may. In our view the bill must use must to ensure certainty. Linked to this is the recommendation that there be an audit of legislation to bring them in line with the bill.

In addition, the proposal seek to ensure that the Minister's power to exempt administrator in terms of section 4(6) is subject to public consultation and is for limited time period.



Amend subsection 6(2) as follows:

"(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 more that 90 days after receiving the request, give that person adequate reasons in writing for the administrative action. Adequate reasons will include, but not limited to:

  1. a reference to be empowering Act and specific provision thereof in terms of which the administrative act was taken (including references to any applicable regulations);
  2. if the action was taken in terms of or pursuant to a standard, a statement of that standard;
  3. a statement of the essential findings of fact and the law upon which the action was based with sufficient detail as to enable the affected party to establish on what ground the action was taken;
  4. a statement as to any alternative, less restrictive course of action which were considered, raised or advocated and why they were not followed.



The purpose of this amendment is to create a general standard on what constitute adequate reasons.



Amend subsection 11(1) as follows:

"11(1) The Minister [may] must make regulations relating to -


The Minister's power to issue regulations should not be discretionary.