COMMENTS ON ADMINISTRATIVE JUSTICE BILL
In response to a letter dated 1999-11-01 received from the chairperson of the Portfolio Committee on Justice and Constitutional Development, I wish to comment on the Administrative Justice Bill as follows:
- Clause 2(3) provides that a failure to give effect to the rights referred to in subsection (1) is reviewable.
A failure to do something cannot be reviewed. Only a positive act like the taking of a decision can be reviewed. If a person fails to do something there is nothing that can be reviewed. It is therefore recommended that the first part of clause 2(3) should read as follows:
"(3) Administrative action performed without giving effect to the rights referred to in subsection (1) is reviewable."
- Clause 4 deals with procedurally fair administrative action. In clause 4(6) it is provided that the Minister may by notice in the Gazette, in exceptional circumstances, exempt an administrator, administrative action or group or class of administrative actions from the application of section 4 to the extent necessary. The use of the expression "in exceptional circumstances" may create problems. Who must judge whether the circumstances are exceptional? There may arise a dispute on the question whether circumstances are exceptional, in which case the court may eventually have to decide. It would be better to leave the matter in the discretion of the Minister. It is therefore recommended that the words "in exceptional circumstances" be replaced by "if he deems it necessary."
- There is concern about the costs involved in the procedures set out in clause 5. All public education institutions, including public schools, are organs of state and are therefore subject to the provisions of the Bill. The procedures provided for in clause 5 may require legal expertise. Most public schools, and also other education institutions, do not have the financial means to employ legal advisers. Apart from the cost factor, public hearings will also be time-consuming and may interfere with the educational activities of an institution.
Appreciation is expressed for the inclusion of clause 5(4) which makes it possible to deviate from the strict requirements of subclauses (1), (2) and (3) under certain circumstances.
- Clause 6 which deals with reasons for administrative action, provides in subclause (2) that an administrator who receives a request for written reasons, must not more than 90 days after receiving the request, give adequate reasons in writing for the administrative action, incorporating the essential facts and the legal basis for the action.
It is not clear why the legal basis for the action must also be provided. Section 33 of the Constitution only requires reasons. Here again, education institutions may have to incur the costs of the employment of a legal practitioner.
It is recommended that the words "and the legal basis for the action" be omitted.
- In clause 6(3) it is provided that if an administrator fails to furnish adequate reasons for an administrative action, it must be presumed in any proceedings for review, in the absence of proof to the contrary, that the administrative action was taken without good reason.
In any legal proceedings a court decides a case on all the evidence before the court. It is felt that there is no need to create a presumption against an administrator in favour of a person requesting reasons. In review proceedings the court can decide the case on the available evidence.
It is recommended that subclause (3) of clause 6 be omitted.
- The wording of clause 6(6) is similar to that of clause 4(6) which is dealt with in paragraph 2 above. The arguments put forward there also apply to clause 6(6).
It is therefore recommended that in clause 6(6) the words "in exceptional circumstances" be replaced by the words "if he deems it necessary."
- Clause 7 sets out extensive grounds for review of administrative actions. One of the grounds mentioned is that an administrative action may be reviewed if it is vague or uncertain (clause 7(1)(f)(ii)). It is not clear how this provision will be applied. If an examination paper contains a question which a student does not understand, does it mean that the student may have the setting of the paper reviewed? In terms of clause 7 the action itself must be vague in order to be reviewable. The action in the example mentioned is the setting of an examination paper. The question is whether in this example the action is vague, or is the result of the action vague.
It is feared that the above provision may give rise to serious problems for education departments and education institutions.
- Clause 9 sets out the orders that a court may grant in review proceedings. It is inter alia mentioned that in setting aside an administrative action a court may make an order directing the administrator or any other party to the proceedings to pay compensation (clause 9(c)(ii)(bb)). This deviates from the current law where a person who has suffered damage, must institute action and proof the damage suffered. It is doubtful whether all aspects of a claim for damages can be properly canvassed in review proceedings. It terms of the law currently applicable to review proceedings, a court may make an order that the applicant be placed in the same position that he or she was in prior to the unlawful decision.
It is recommended that the court's power should be limited to the granting of an order placing the applicant in his or her previous position. The court should not have unlimited power to grant orders for compensation in review proceedings.
It is trusted that due consideration will be given to the above comments.
T D MSELEKU