Administrative Justice Bill

Thank you for the opportunity to comment on the Administrative Justice Bill, 1999. I fully support the Bill which gives effect to the right to administrative action that is lawful, reasonable and procedurally fair and to the right to written reasons for administrative action as contemplated in section 33 of the Constitution, 1996.

The following comments on some of the clauses of the Bill are presented:
- Clause 4(2) and (3). The criteria for a fair procedure set out in this clause
could complicate certain administrative actions-e.g. does the requirement of a "reasonable opportunity to make representations" mean that all applicants for a post that comply with the requirements of the advertisement, have to be given an interview.
Disciplinary action would surely fall within the definition of "serious cases" referred to in subparagraph 3(b). The Disciplinary Code of the public service deliberately excludes legal representation from the disciplinary process. Won’t this be in conflict with this Bill and won’t it be possible for an employee to call upon the provisions of the Bill (Act) to bring legal representations into the disciplinary process?;

- Clause 5(1). How would an administrator know that his/her action is adversely affecting the public? This is surely a question of opinion. Shouldn’t the administrator be given criteria to enable him/her to make such judgement call?;

- Clause 7. The way the section is drafted assumes that certain facts have already been established, e.g. subparagraph © which states that an action was procedurally unfair. Surely it can only be an allegation that the procedure followed, was unfair – an allegation which will be proved or disapproved during the review. It is therefore proposed that where a request for a review is based on an opinion of the applicant, the word "alleged" should be used. It is also not clear how a standard could be applied too rigidly (see clause (7)(e)(iv)); and

- Clause 9(C). According to this clause, the court can set aside an administrative action. It is, however, not clear what is to happen to the results of the (wrongful) administration action that had been taken- e.g. if someone was promoted or appointed and it is found by the court that the action had prejudiced someone else who should have been promoted or appointed.

Finally, departments should be approached to provide you with the necessary information to enable you to determine the total cost implications of the Bill.

Kind Regards