THE ADMINISTRATIVE JUSTICE BILL
Submission from Idasa
Lord Acton, as we all know, said power corrupts. It is necessary to adapt Acton and to point out that powerlessness is equally corrupting, for individuals and for the state. The former leads to individual frustration and helplessness. The latter causes governmental drift leading to chaos – with the State unable to perform the functions expected of it. There is consequential disunity, fragmentation, lack of cohesiveness and ethnic conflict.
The principles of effective and accountable government have found expression in the Administrative Justice Bill (AJB). This bill engraves onto the administrative law vital principles of decision-making that are fair, accountable, credible and lawful. The bill inspires effective and accountable management systems in decision-making processes within government and other bodies.
This constitutional imperative to have the right to just administrative action is going to impact on all decision-making capacities. The potency for making correct and fair decisions is enhanced through this bill. Of particular significance, the bill impacts on all legislation that authorizes administrators to take and implement decisions that have the potential to affect rights, interests and legitimate expectations. This bill therefore is supreme in the sense that it sets out for all decision-makers minimum standards of fairness for administrative action and makes all legislation except the Constitution subject to its minimum standards.
However, we recognise that whilst both may be over-stated, the imperative for just administrative action must be balanced carefully with the imperative not to paralyse government. The Administrative Justice Act must serve the constitutionally over-riding ambition of building an equal and just society rather than jeopardise the realisation of that ambition by creating a system that can be manipulated by the rich and powerful who seek to protect their narrow interests.
Hence, while IDASA welcomes this bill, it wishes to draw the attention of the parliamentary committee to the following points:
Plainly, defining Administrative Action presents a knotty problem. In its SARFU judgment the Constitutional Court has provided useful guidance: "What matters is not so much the functionary as the function. The question is whether the task itself is administrative or not".
The Constitutional Court’s approach requires that the AJB’s approach to Administrative Action, as it is currently drafted in clause 1, be re-considered, both in terms of inclusion and exclusion.
So far as inclusion is concerned, the basic options are (a) to produce a "laundry list"; or (b) to provide a more general definition.
The problem with the first approach is that it is very difficult to do: as government has become more and more complex so the range and type of administrative action has multiplied. An incomplete laundry list would itself then fall foul of the Constitutional Court’s guiding principle, which suggests rather that administrative action must be defined and interpreted on a case-by-case basis.
The problem with the latter approach is that it does not serve one of the most important underlying purposes of the legislation, namely, to help provide clarity to administrators in the performance of their daily administrative functions.
We suggest a middle route: a general definition of administrative action, such as that proposed latterly by the SA Law Commission in its submission to the committee (paragraph 8 of AJU11a), could be supplemented by a set of guidelines attached to the Act as a schedule, and which could be added to, and subtracted from, by the Minister (according to powers granted in the Act) in consultation with the Public Service Commission.
The purpose of the guidelines would be to give expression to the unspoken notion that is fundamental to the AJB and the prospects for its successful and practical implementation, namely, common sense.
So far as exclusion is concerned, the current approach taken by the AJB is, we submit, problematic for the same reason, that it classifies more by funtionary – or structure – than by powers. As the Constitutional Court said in SARFU (at 1119E): "It may well be…that some acts of the legislature may constitute "administrative action". Similarly, judicial officers may, from time to time, carry out administrative tasks. The focus of the enquiry 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 or she is exercising."
This argument is particularly pertinent with regard to sections 85(2)(a) and (b) of the Constitution [and the equivalent provisions relating to the provincial executive] in relation to "implementing national legislation…" and "implementing national policy…". It is often in the implementation of legislation that the most pernicious and arbitrary administrative action and decision-making can be found; to exclude all so-called "executive action" (under section 85) would create a loophole for possible abuse.
The Right to Administrative Action
It is not clear why the drafter of the Bill altered the formulation of words that appears in section 33 of the Constitution when setting out the Right to Administrative Action in section 2 of the AJB (and the Memorandum to the Bill provides no insight). The changed wording may well be unconstitutional, as others have argued compellingly.
Lawful administrative action must apply where rights or interests are affected or threatened, not only where they are adversely affected. Lawfulness means that rights, interests and legitimate expectations must be lawfully protected. It is possible that a decision-maker can act in a manner that is positive, but that act must be lawful. An unlawful decision could contaminate a good decision. Decisions must be lawful, even where such decisions do not adversely affect rights and interests.
Accordingly, at the very least the committee should consider deleting "adversely" where it appears in section 2 and elsewhere in the Bill.
Procedural fairness must apply where interests as well as rights and legitimate expectations are adversely affected. The exclusion of 'interests' to procedural fairness is an impermissible limitation. We suggest that the Committee inserts 'interests' in subsection 2(1)(b).
Procedurally Fair Administrative Action
S4 (4): In only exception circumstances should administrators depart from the obligation to adhere to a procedurally fair administrative action. This bill sets out minimum standards by which decisions should be made. While allowing departure from the requirements of procedural fairness, it must only be in exceptional circumstances. Exceptional circumstances justifying a departure from the procedure set out in this bill must not compromise the basic tenants of administrative justice. It must deter arbitrary processes and introduce a system that promotes good governance. Exceptional circumstances must be defined to mean that there is a mandatory obligation on the part of the administrator to give effect to the right to fair administrative procedure, which can only be departed from upon proof of exceptional circumstances. The onus to prove that exceptional circumstances justify the deviation from the established requirement must rest on the decision-maker.
The 'if circumstances justify it' approach places a lower threshold for deviating from procedural fairness in terms of the bill. The Mpumalanga judgment of the Constitutional Court dealt with the minimum threshold for administrative justice requirement. The history of administrative justice in South Africa is an unhappy one. It was characterised by arbitrariness, authoritarian tendencies. The new constitutional order places a higher premium to accountable, effective, credible government. The commitment of the country's administrator to upholding the values of a democratic government is a commitment to deviate from procedural fairness requirements of this bill only in exceptional circumstances.
S. 4(6)(b): The minister's discretionary powers of exemption are subject to the stricter test of exceptional circumstances. However, the requirement that for efficient administration the minister may authorize deviation from the requirements of procedural fairness makes certain assumptions that may conflict with the objective of the bill. The overall intelligence behind the bill is to promote effective, accountable and efficient government. To envisage that the minister may in the interest of efficient government decide to suspend the requirements of procedural fairness is contradictory. IDASA is of the view that the minister should exercise the power of exemption in exceptional circumstances, for example only in emergencies and serious disruption of public order and peace.
The bill envisages that different procedures may be followed, either by direction from the minister, or by administrator's discretion. These alternative processes and procedures must be fair. This alternative procedure approach is designed to allow for creative and pragmatic management of situations. There may be instances requiring that the administrator or the minister adopts a different but fair process. IDASA would propose that the minimum requirements of fairness in every process that an administrator adopts be prescribed. An administrator, for example, who decides to adopt a different procedure to action an administrative decision, must consider giving notice to affected parties. The adoption of a different procedure must be justified and scrutinised for compliance with minimum standards of the bill.
Administrative Action affecting public
We have a concern about the efficacy of clause 5 of the AJB, especially with regard to its relationship with clause 4. We suspect that it may disturb the delicate balance between efficient and just administrative action that the legislation must preserve. One option is to remove clause 5 entirely. Another is to substitute "may" for the second "must" in clause 5(1) and to add a new subsection in clause 5 stating that "When determining whether or not the administrator has given effect to section 4 the decision taken by the administrator under subsection (1) shall be taken into account".
In other words, the means used or not used by the administrator – and the exercise of his or her discretion in that regard – to give practical effect to section 4 in cases involving classes of the public rather than individual, identifiable cases, shall be a factor in determining whether or not the administrative action was just.
A further alternative option, would be to place clause 5 in a schedule to the Act, by way of a set of guidelines for the implementation of section 4.
Reasons for Administrative Action
Section 33(3)(b) imposes a positive duty on the state to give effect to the right to just administrative action. This, we submit, should be reflected in the provision of written reasons. In the same way that a "right-to-know" approach of automatic disclosure can be applied to ease the burden and smooth the efficient implementation of the right to access information, so too can an automatic, proactive duty to provide reasons be imposed in some cases.
Where, for example, a administrative decision has been taken that concerns an identifiable individual, rather than requiring that individual, who may or may not have the where with all to easily do so, to request written reasons, we suggest that the obligation should be for the administrator to automatically provide written reasons immediately or, in any event, within 30 days.
Standards for Administrative Action
An earlier proposed draft of the AJB (prepared by Professor Jeremy Sarkin) included a set of Standards for Administrative Action (his clause 8). Of particular importance is the infusion of the principle of legality in this bill as a standard for administrative action. This is important for a number of reasons. Firstly, it accepts that all administrative action must derive from lawful sources of authority. In subsequent review proceedings, the court will look beyond the empowering Act, to whether that empowering Act complies with this bill, whether the process in the empowering Act complies with this bill. The pertinent question would therefore be whether the law authorising the action is consistent with the provisions of the AJA.
The inquiry in administrative action cases should not be limited to how and in terms of what a decision was taken, but whether the empowering provisions of the Act complied with the AJA and better still the constitutional requirements. Professor Sarkin's draft on standards for administrative action offers an ingenious framework for the adjudication of disputes to not merely look at whether the action was authorised but whether the legislation authorising it complies with the AJA. [His proposal is attached hereto].
Procedure for review
Consistent with Idasa’s submissions on the Open Democracy Bill and the Equality Bill, we maintain that the guiding principles for the enforcement procedure should be:
Administrative justice will, admittedly, require a new jurisprudence to help guide the implementation and enforcement of the AJA (perhaps more so than the other two Acts). We do not believe that this factor should mean that the High Court should be the first point of legal remedy.
We prefer an inquisitorial, alternative dispute resolution orientated mechanism, within either a separate administrative justice tribunal or in concert with a specialist Democracy Division of the Magistrates (as proposed by the Open Democracy Campaign Group in respect of the Open Democracy Bill) that would have power to determine cases concerning both administrative justice and access to information. Given the similarity of content and issues, we contend that this would be both a reasonable and a cost-effective use of resources.
Procedure for review must also include the Supreme Court of Appeal, unless where the matter by direct appeal or referral avoided it. These procedures are provided for any way in the Constitution and the Rules of Constitutional Court.
Professor Sarkin's draft has a section dealing with "Duties and Functions" which basically deals with the obligations of Administrators to compile and maintain an up-to-date register of rules and standards used by them. This is a progressive innovation to the bill. The AJB does not have this section. The duty on administrators to set out registers detailing how they take decisions is novel. Such a requirement would be done in terms of the Open Democracy Act and ensure that administrators take decisions sensitively, but efficiently and credibly. The maintenance of registers of rules and standards could advance the cause of good, accountable and democratic government. It would buttress the capacity for administrators to develop credible decisions, ensure public scrutiny and involvement in decision-making. This ingenious innovation should be supported and added to the AJB. [The proposals for "Duties and Functions" are attached, again, hereto.]
Richard Calland & Thabani Masuku
The Political Information & Monitoring Service (PIMS) at Idasa
30 November 1999
Standards for administrative action
8. (1) Administrative action shall comply with the following:–
all administrative acts must be performed in terms of a legislative or other law or other instrument recognised as a lawful source of authority to act;
all administrative acts must be authorised by an empowering provision and may not contravene a law;
the reason for which the administrative act is taken must be authorised by the empowering provision and must not be for a purpose or motive ulterior to that authorised by the empowering provision;
all procedures or conditions prescribed by the enabling provision or otherwise by law must be complied with prior to the action being taken;
all administrative acts must be procedurally fair as required by law including the Constitution, the common law, this Act or any other applicable law;
all findings of law must be based on a correct interpretation of the empowering provision and may not be taken arbitrarily or capriciously;
all findings or conclusions must be based on reasonable and sufficient evidence in support of those findings or conclusions;
the administrator must take into account all relevant considerations and disregard all irrelevant considerations in reaching its conclusion;
the administrator may not, without good cause, deviate from a standard, or adhere to a standard, if such deviation or adherence shall cause prejudice;
administrative action must be taken free from the influence or dictates of another person, organ or body whose influence or participation is not permitted or required by law;
administrative rules and standards must be clear and certain in their content and meaning;
the grounds upon which administrative action are based must be rationally connected to-
the purpose for which the action was taken;
the purpose of the empowering provision;
the information before the administrator;
the reasons given by the administrator;
the administrative action must be reasonable. In determining the reasonableness of the action -
the administrator must weigh all interests directly involved;
the administrator must consider all reasonable less restrictive means to achieve the purpose for which the action is taken and endeavour to follow the less burdensome possibility;
the administrator must weigh up the adverse effect of the administrative action which may not be disproportionate to the benefits of the action;
the administrator must weigh up the nature of the rights involved, especially a right contained in the Constitution.
(2) In this section:–
"empowering provision" means the legislative or constitutional provision, the rule of common law, customary law or international law or the agreement or document in terms of which the administrative action was purportedly taken;
"relevant considerations" includes all material information, objections and alternatives to the administrative action.
DUTIES AND FUNCTIONS
13. (1) Every administrator must, subject to the Open Democracy Act, 1999:–
compile and maintain an up-to-date register containing the text of all current rules and standards used by it;
compile and maintain an up-to-date and accessible index of all current rules and standards used by it, including a concise description of their contents and the particulars of the places and times at which the rules and standards or further information regarding them can be inspected and copied;
make available all rules and standards used by it for inspection and copying at all reasonable times by any member of the public at his or her own expense; and
within 180 days of the commencement of this Act forward to the South African Law Commission copies of that register and index and thereafter send whatever changes that occur to the register and index within one month of the change..
(2) The Minister for Public Service and Administration for an organ of state, or the Minister for Justice and Constitutional Development for any other-
must compile and publish protocols for the drafting of rules and standards; and
formulate and publish in the Government Gazette within two years after the date of commencement of this Act a code of good administrative conduct, including a statement of executing authorities’ fiduciary obligations, which is binding on all administrators;
may by notice in the Government Gazette in exceptional circumstances, exempt an administrator, a rule or a group or class of rules from the application of this section, to the extent necessary; provided that any such exemption or permission must be compatible with the right of persons to access to all current rules and standards; and
perform the other functions required by this Act or any other law on administrative action.
(3) The Chief State Law Adviser in conjunction with the Department of Public Service and Administration for an organ of state or the Department of Justice Minister for Justice and Constitutional Development for any other, provide training to the drafters of rules and standards.
(4) The South African Law Commission must:–
compile and maintain an up-to-date national register containing the text of all current rules and standards used by organs of state;
compile and maintain an up-to-date and accessible national index of all current rules and standards used by organs of state, including a concise description of their contents and the particulars of the places and times at which the rules and standards or further information regarding them can be inspected and copied;
publish that national index:–
monthly on the Internet; and
annually in the Government Gazette;
make available all current rules and standards for inspection and copying at all reasonable times by any member of the public at his or her own expense;
inquire into the law and practice relating to:-
internal complaints procedures;
internal administrative appeals; and
the review by courts of administrative action,
and make its first recommendations to the Minister for Public Service and Administration and the Minister for Justice and Constitutional Development within two years after the date of the commencement of this Act as to any improvements that might be made, and for this purpose every organ of state must furnish the South African Law Commission with details of its internal complaints procedures and internal administrative appeals within 180 days after the date of commencement of this Act;
inquire into the law, rules and standards for administrative action by organs of state and:-
make recommendations to the Minister for Justice and Constitutional Development, the Minister of Public Service and Administration and the relevant executing authorities as to any other improvements aimed at ensuring that administrative action conforms to the rights to administrative justice in section 33 of the Constitution and the other provisions in the Bill of Rights and the basic values and principles governing public administration in section 195(1) of the Constitution;
make recommendations regarding any other matter relevant to this law.
The Public Service Commission, in terms of sections 195(5) and 196(4)(a) of the constitution, shall initiate, conduct and co-ordinate programmes for educating the organs of state or employees thereof regarding the contents of this Act and the provisions of the Constitution relevant to administrative action.
The South African Human Rights Commission, in terms of sections 184(2)(d) and 184(4) of the Constitution, shall initiate, conduct and co-ordinate programmes for educating the public at large and the members and employees of non-state organs regarding the contents of this Act and the provisions of the Constitution relevant to administrative action.