MINISTRY OF HOME AFFAIRS

ADMINISTRATIVE JUSTICE BILL

The idea of an Administrative Justice Bill was noble, considering the relative peculiar antecedent in South Africa of transfer of excessive discretion by Parliament to the executive. The right to administrative justice underscores an efficient, accountable and just administration at all levels of government. For administrative law and justice, the salient aspects of this brand of the democratic ideal are its emphasis on participation and accountability, both of which depend on openness of process. It is in this light that the Open Democracy Bill should be read together with Administrative Justice Bill.

National legislation contemplated by section 33(3) of the Constitution is supposed to make practical implementation of the rights referred to in section 33(1) and (2) easier and more effective by providing procedures, statutory mechanisms and tribunals which are necessary to give concrete effect to these rights. It must be admitted that clause 1 to 11 of the Bill, to a large extent, enforces the objectives contemplated by section 33 of the Constitution.

The Bill to a certain extent gave detailed guidance, especially to public administrators, as to when they have to comply with their duties under the Act and how they must do so.

For the purpose of efficient administration, it is commendable that the Minister of Justice is empowered in terms of clause 4(6) and 6(6) to exempt an administrator or administrative action from the application of the Bill. It is unfortunate though that the Bill does not indicate who must initiate such exemptions or whether the Minister must do it mero motu. The procedure to be followed, before such exemptions could be granted by the Minister is not outlined in the Bill.

One assumes on the basis of clause 1 of the Bill that the decision of the Minister in this regard is final, binding and not reviewable in terms of the Bill. It is suggested that the inherent limitations of judicial process, and the need to allow the executive to lead in the formulation of policy and exercise of discretion be taken into account.

Clause 6(6)(b) is also difficult to understand because in order to promote efficient administration an administrator or administrative action is permitted to 'vary' the requirements referred to in subsection (2) in a manner which is compatible with the right of persons adversely affected by administrative action to be given written reasons for that administrative action. I fail to see how an exemption to give reasons can be compatible with the right of persons adversely affected by administrative action to be given reasons for that administrative action.

It is recommended therefore that in order to cover the exemptions contemplated in clause 4(6) and 6(6) of the Bill, the Minister must be empowered in terms of regulation 11 to make regulations relating to the procedures to be observed before such exemptions could be granted. Clause 6(6)(b) should rather read thus: "the Minister may, by notice in the Gazette in order to promote efficient administration, permit an administrator to vary the requirements referred to in subsection (2), in a manner specified in the notice".

M G BUTHELEZI

MINISTER OF HOME AFFAIRS