THE ADMINISTRATIVE JUSTICE BILL
SUBMITTED BY THE LEGAL RESOURCES CENTRE AND CLIVE PLASKET, FORMER DIRECTOR OF THE GRAHAMSTOWN OFFICE OF THE LEGAL RESOURCES CENTRE
MISSION STATEMENT OF THE LEGAL RESOURCES CENTRE.
The Legal Resources Centre is an independent, client based, non-profit public interest law centre, which uses law as an instrument of justice. It works for the development of a fully democratic society based on the principle of substantive equality, by providing legal services for the vulnerable and marginalised, including the poor, homeless and landless people and communities of South Africa who suffer discrimination by reason of race, class, gender, disability or by reason of social, economic and historical circumstances.
Inspired by our history, the Constitution and international human rights standards, the Legal Resources Centre, both for itself, and in its work is committed to:
- ensuring that the principles, rights and responsibilities enshrined in our National Constitution are respected, promoted, protected and fulfilled;
- building respect for the rule of law and constitutional democracy;
- enabling the vulnerable and marginalised to assert and develop their rights;
- promoting gender and racial equality and opposing all forms of unfair discrimination;
- contributing to the development of a human rights jurisprudence;
- contributing to the social and economic transformation of society.
To achieve its aims the Legal Resources Centre seeks creative and effective solutions by using a range of strategies including impact litigation, law reform, participation in partnerships and development processes, education and networking within and outside South Africa.
- THE LEGAL RESOURCES CENTRE: ITS INTEREST.
- The Legal Resources Centre (the LRC) was established in 1979 as a public interest law centre. At present, it has regional offices in Johannesburg, Pretoria, Durban, Grahamstown and Cape Town. It also has one specialist unit - the Constitutional Litigation Unit - and a two specialist programs. It acts for people who are unable to afford the services of lawyers and whose cases raise issues of public interest.
- Over the years, the LRC has acted for many thousands of people throughout the country. In its endeavors to achieve justice for the vulnerable and marginalised sectors of the South African society, it has developed expertise in administrative law.
- Indeed, its role in the protection of human rights through the medium of administrative law is commented upon favourably by Professor Lawrence Baxter in his leading work, Administrative Law: Legal Regulation of Administrative Action in South Africa:
‘There is no doubt that considerable developments in administrative law have been achieved through the action of organisations, such as the legal resources centres, established to defend human rights. A number of the leading cases in modern South African administrative law were litigated under their auspices.’
- Apart from its litigious work in the field of administrative law the LRC has contributed to contemporary debates on the reform of this branch of our law, once referred to as a ‘dismal science’ by a leading academic commentator.
- In 1989, to mark the tenth anniversary of its founding, the LRC convened a conference entitled ‘Law in a Changing Society’ in which a significant part of the focus was on the reform of administrative law. Arthur Chaskalson, then the National Director of the LRC, said the following of administrative law reform:
‘Administrative law is the interface between the bureaucratic state and its subjects. The day to day lives of ordinary people are profoundly affected by the way those who hold power over their lives exercise that power. Importance steps towards the creation of a just society can be taken by opening up the administrative process and developing an equitable system of administrative law. This has none of the profound political implications of the adoption of a new Constitution based on a Bill of Rights and, what is more, can be implemented at once.’
- The LRC was represented at both Breakwater Conferences on administrative law reform in 1993 and 1996. At the 1993 conference, Geoff Budlender, the National Director at the time, after commenting on the general importance of administrative law said of its importance in the future:
‘We can reasonably hope and expect that a new Constitution will facilitate the task of courts to ensure that government and its officials remain within their lawful powers, and act fairly. However, this will be of little assistance to ordinary citizens unless they are able to bring to court challenges to the exercise of administrative powers. It is of course true that most citizens encounter the administration not in the courts, but in their daily lives. It is therefore essential to create a system of administrative law which attempts to ensure that justifiable decisions are made, in the first instance, through fair procedures. However, the courts remain the central institution of last resort. Their decisions can affect the lives of vast numbers of people, and create the legal framework within which day-to-day decisions are taken.’
- More recently, members of the LRC have attended workshops convened by the South African Law Commission to discuss its draft of the Administrative Justice Bill.
- The LRC has, thus, over a number of years developed views and ideas of administrative law reform. From its representation of large numbers of poor people and communities over the years, it has developed considerable expertise as well. It is in a position to offer guidance in respect of the impact of the Administrative Justice Bill on its client base – the people to whom the Constitution’s promise of social justice is largely aimed. It is one of the few organisations that provides legal representation, on a meaningful level, to poor people living in the rural areas.
- ADMINISTRATIVE LAW REFORM.
- It is now accepted wisdom that the South African judiciary, during the apartheid era, was found wanting in respect of the protection of human rights. Because the apartheid system was built on law, and was, to a large extent, implemented through the medium of discretionary administrative powers, it is in the field of administrative law that the judiciary’s failures are perhaps most obvious.
- This point was made by the General Council of the Bar (the GCB) in its representations to the Truth and Reconciliation Commission (the TRC) on the South African legal system during the period 1960 to 1994. After querying why the courts were ‘slow to respond to the blatant abuse of administrative power which characterized the apartheid era’, the GCB submitted that ‘although the law of review of administrative actions is largely, if not entirely, judge-made, our courts failed to impose rigorous standards on officialdom, particularly in the field of legislation involving race and security’.
- This is not the place for a detailed analysis of the reasons for the judiciary’s failure. Suffice it to say that the judiciary failed to acknowledge the aberrant and morally indefensible nature of the constitutional system from which judges drew their authority – a system based on parliamentary sovereignty severed from its political counter-balance, universal franchise and (at the very least) a reluctance on the part of most judges to acknowledge the evil (for that is precisely what it was) which parliament and its minions created and imposed on the country, in the form of the laws of apartheid and the security laws. Such laws were usually applied without comment by judges, as if the administrative law applied in these circumstances were simply an ‘autonimous apolitical system to be evaluated solely by the traditional standards of the legal profession’.
- When Barry Dean, writing in 1986, suggested that South African administrative law may be a ‘dismal science’, he said the following of our system of administrative law and its weaknesses:
‘It has developed within a system of government which concentrates enormous powers in the hands of the executive and the state administration and in which law has been used not to check or structure these powers, but rather to facilitate their exercise by giving those in whom they are vested as much freedom as possible to exercise them in the way they see best. In this process the South African courts have at times appeared to be all too willing partners displaying what virtually amounts to a phobia of any judicial intervention in the exercise of powers by administrative agencies. As a result, administrative law often appears to be "an almost mystical field in which the executive is free to do not only whatever it wills, but also to undo whatever it has done". Apart from this, until relatively recently, South African administrative law has been largely the creation of administrators and legal practitioners, principally judges and advocates. Without underestimating the inherent difficulty of the subject, this has meant that it is an area of the law which displays all the disadvantages of a purely pragmatic system. It is characterized by an excessive attention to detail and a lack of system and principle which make it very difficult to state or develop in a coherent fashion.’
- Five years later, Hugh Corder wrote that ‘South African administrative law has until very recently languished in a rudimentary form not unlike that of the English administrative law of the late 19th Century’. He proceeded to write:
‘Thus the conceptional apparatus used by the judiciary has been characterized by a formalistic reluctance to recognize the growth of executive power (to the detriment of legislative legitimacy and civil liberties) and to develop legal rights and remedies within the scope of judicial review accordingly. In this vital respect, beyond a few judgments before 1950, judicial policy in South Africa has differed radically from that of its parent body in England: it has failed signally to enforce executive accountability to the law at the same time as government policy, largely discharged through the medium of administrative discretion, has wrought wholesale changes to the socio-political economy. So repeated challenges in the courts to the implementation of apartheid or measures taken to keep it in place have fallen on deaf judicial ears.’
- The interim Constitution created the bridge from an authoritarian past to a democratic future. It was based on the idea of constitutional supremacy and created from the undemocratic old order a constitutional state. In such a state those who wield public power must be able to justify their exercises of power as being reasonable and rational.
- Because of the prominence of administrative power, both historically in the apartheid state and, more generally in the modern state, the interim Constitution contained fundamental rights to what it termed administrative justice. Our present Constitution, in section 33, also does.
- It is against this background that the fundamental right to just administrative action must be viewed and understood. For this reason, Hugh Corder submits that the form of democracy articulated by the Constitution is based on a ‘rights – based conception of public law’ which seeks, as its major aim, to prevent abuse of power:
‘The core values of this approach to democracy and the functioning of the state are openness of action, participation in decision-making, justification for decisions made, and accountability for administrative action. The importance of the constitutional requirements of lawfulness, procedural fairness, reason giving and justification for administrative action to such a conception of democracy, is self evidence. So the particular form of democratic framework within which we now operate, is explicit and mandatory, and the principles of administrative law must be revised and developed or created to give expression to such a concept.’
- In conformity with this view of the purpose and rationale of judicial review of administrative action under a supreme Constitution, David van Wyk suggests that ‘the ethos and values of the Constitution, not those of the common law, shaped under parliamentary sovereignty, should be the primary inspiration for the contents of administrative justice’.
- The entrenchment of rights to just administrative action in the Constitution and the ‘fleshing out’ of these rights through legislation represent, without doubt, the most important reform of administrative law in South Africa’s history. The criticism of the Administrative Justice Bill which is leveled below must be seen in this light. While it represents a particularly big step forward, the LRC is concerned about certain aspects of it, particularly the impact that some of its provisions will have on the rights of the more vulnerable and marginalised sectors of society, especially those who live far from easily accessible legal services, such as people living in the rural areas.
- A DISCUSSION OF APPLICABLE PROVISIONS OF THE BILL.
- General Remarks.
- There appear to be three versions of the Administrative Justice Bill. The first is the version produced by the South African Law Commission. The second is the version drafted by Professor Sarkin. The third version was apparently drafted by an official within the Ministry of Justice.
- We understand that the third version is the current version. Reference to the Bill in these representations will be references to the third version unless otherwise indicated. The LRC’s main criticisms relate to provisions which are common to all three versions. Part of our criticisms only relate exclusively to the third version.
- Constitutional Foundation.
- The Administrative Justice Bill is meant to give expression to the rights to just administrative action contained in section 33 of the Constitution. That section, in turn, gives concrete expression to a set of values and principles which underpin the Constitution and, indeed, every decent system of public law.
- In order, therefore, for the Administrative Justice Bill to be faithful to its constitutional roots, it must properly reflect and articulate those constitutional values and principles. They are set out below.
- In the first place, the preamble speaks of the adoption of the Constitution as the supreme law in order to ‘heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights’ and to ‘lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law’.
- Secondly, section 1 identifies as founding values of our democratic state, constitutional supremacy and the rule of law, and a democratic system of governance, ‘to ensure accountability, responsiveness and openness’.
- Thirdly, section 195 (1) lists what are termed basic values and principles governing public administration. Among these basic values and principles are the following: the promotion and maintenance of a ‘high standard of professional ethics’; the promotion of ‘efficient, economic and effective use of resources’; the provision of impartial, fair, equitable and unbiased services; the accountability of public administration; and the fostering of transparency ‘by providing the public with timely, accessible and accurate information’.
- In the matter of Carephone (Pty) Ltd v Marcus NO Froneman DJP held that the purpose of the right to just administrative action ‘is to extend the values of accountability, responsiveness and openness to institutions of public power which might not previously have been subject to those constraints’.
- More recently, the Constitutional Court, in President of the Republic of South Africa v South African Rugby Football Union described the position of public administration under the Constitution thus:
‘Public administration, which is part of the executive arm of government, is subject to a variety of constitutional controls. The Constitution is committed to establishing and maintaining an efficient, equitable and ethical public administration which respects fundamental rights and is accountable to the broader public. The importance of ensuring that the administration observes fundamental rights and acts both ethically and accountably should not be understated. In the past, the lives of the majority of South Africans were almost entirely governed by labyrinthine administration regulations which, amongst other things, prohibited freedom of movement, controlled access to housing, education and jobs and which were implemented by a bureaucracy hostile to fundamental rights or accountability. The new Constitution envisages the role and obligations of government quite differently.’
- Section 1(d) of the Bill defines a court to mean ‘the Constitutional Court acting in terms of section 167 (6)(a) of the Constitution’ or a High Court, court of similar status or a designated Magistrate’s Court ‘within whose area of jurisdiction the administrative action occurred or the administrator has his or her or its principal place of administration’.
- This formulation of the jurisdiction of High Courts, other superior courts and designated Magistrate’s Courts is more restrictive that the common law and will certainly hamper access to the courts for the large majority of people wishing to vindicate their rights to just administrative action.
- By vesting jurisdiction in the courts in whose area of jurisdiction the administrative action occurred, the drafters of the Bill have opted for a formulation which favours the convenience of the administrator over the convenience of the individual. This will often make it impossible for all by the richest members of our society and large companies to take decisions on review if the applicant lives in a different High Court jurisdiction to where the administrative act occurred or to the principal place of administration of the administrator.
- If, by way of example, a decision is taken by an official in a department within the national sphere of government, in Pretoria, which adversely affects a person who resides in Grahamstown, this formulation would mean that the
individual wishing to review the decision would have to launch proceedings in Pretoria. In other words, on the plain meaning of the provision, the administrative act occurred in Pretoria.
- By way of contrast, the common law recognizes that the cause in a case such as the example cited above will arise where the effect of the administrative action is felt. In Estate Agents Board v Lek the decision in question was taken in Johannesbrug, where the appellant had its principal place of business, but affected the respondent where he practiced as an estate agent in Cape Town.
- Trollip JA in dealing with the issue of whether the court below – the Cape of Good Hope Provincial Division – had jurisdiction, held:
‘It held that it had jurisdiction because the Board’s decision in Johannesburg was not legally efficacious until it was duly pronounced. i.e. communicated to the respondent, which occurred in Cape Town where he received the Board’s letter (see 1978 (3) SA at 167H – 168E.) Although s31 (a) does require the Board to inform the aggrieved person of its decision, "in writing", I do not think that that is a satisfactory or acceptable ground of jurisdiction in these proceedings. It is too tenuous and uncertain. For example, respondent might have received the letter while he was visiting Johannesburg or in some other province. What then? Moreover, respondent’s real cause of complaint was, not the receipt of the letter, but the actual decision of the Board and its effect on his right to practice as an estate agent. The true position was that, although the Board’s decision was taken in Johannesburg, its inhibitory effect (wherever it was pronounced or communicated) hit respondent in Cape Town where he is resident and has his business. It disqualified him from continuing to carry on his business as an estate agent, thereby diminishing pro tanto his legal capacity or personality, and effecting, as it were, a kind of capitis diminutio.’
- He explained the rationale for this approach as follows:
‘Having due regard to that fact, I think that the Court a quo had jurisdiction to entertain his appeal simply on the ground that he was resident within its area of jurisdiction. After all, that was the Court immediately at hand and easily accessible to him and to which he would naturally turn for aid in seeking to have the diminution in his legal capacity or personality remedied. In the present context of our unitary judicial system of having one Supreme Court with different Divisions, as set out earlier in this judgment, convenience and common sense, are, inter alia, valid considerations in determining whether a particular Division has jurisdiction to hear and determine the particular cause.’
- Section 1(d) of the Bill may well be an infringement of s34 of the Constitution, the right of access to court. Its effect will be to make it practically impossible for most people to take decisions on review if those decisions are taken in another jurisdiction. In real terms, that means that residents in eight of the nine provinces will be at a severe disadvantage and will find it practically impossible to bring review proceedings against departments of the national government when the challenged decision or act occurred in Pretoria .
- Section 1 (d) will have a similar effect in some of the provinces in respect of administrative decisions and acts in the provincial sphere of government. A person who resides in Umtata who has his or her old age pension cancelled by an official in Bisho will not be able to challenge that decision in the Transkei High Court but will have to do so in the Ciskei High Court, a few hundred kilometres away. (This problem may well disappear when the High Courts in the Eastern Cape are rationalised, provided of course that the local divisions all have review jurisdiction.)
- It is suggested that section 1(d) of the Bill be altered to make it compatible with section 34 of the Constitution. This can be done in two possible ways.
- In the first place, the words ‘within whose area of jurisdiction the administrative action occurred or the administrator has his or her or its principle place of administration’ could be deleted. This would mean that the common law, as expressed at present in Estate Agents Board v Lek and the cases that have applied it, would determine jurisdiction.
- In the second place, and it is suggested that this is the preferable option, the appropriate phrase should be altered to read: ‘within whose area of jurisdiction the administrative act occurred or the administrator his or her or its principal place of administration or the adverse effect of the administrative act was, is or will be experienced’.
- Delay in Launching Proceedings.
- Section 8(1) of the Bill provides as follows:
‘A qualified litigant may without unreasonable delay and not later than 180 days after the date on which the person was informed of the administrative action, became aware of the action and the reasons for it or might reasonably have been expected to have become aware of the action and the reasons, institute proceedings in a court for judicial review of the administrative action.’
- Section 10 (1) (b) of the Bill provides that this 180 day period ‘may be extended for a fixed period, by agreement between the parties or, failing agreement, by a court on application by the person or administrator concerned’. Section 10(2) provides that the court ‘may grant an application in terms of subsection (1) where the interests of justice so require’.
- The following aspects of section 8 and section 10 raise concerns:
- In the first place, the 180 day time period is the outer limit for launching proceedings. The section appears to contemplate the possibility of an applicant being non-suited even inside the 180 day limit. This appears to be what is meant by ‘without unreasonable delay and not later than 180 days after the date …’.
- Section 10(1)(b) of the Bill contemplates extensions of the 180 day limited ‘for a fixed period’ either by agreement or court order. This appears to suggest that, prior to launching an application, an applicant who is concerned that he or she may not meet the 180 day deadline must either try to reach agreement with the respondent or approach a court, on application, for the setting of a date by which he or she must launch the proceedings. If the drafters had intended the agreement or order to relate to condonation for late launching of an application, they would surely have used language that indicated this more clearly.
- The problems mentioned above may be remedied by redrafting the appropriate provisions. That, however, does not solve the problem. The real problem is far more fundamental and relates to questions of access to justice and the right to lawful administrative action. This is so because the 180 day time period for the launching of judicial review proceedings will undoubtedly work to the detriment of the poor, the illiterate, the marginalised.
- They do not have easy access to lawyers. Indeed, substantial numbers of the South African population live far from towns which have attorneys offices, let alone the money to pay lawyers. A relatively small number of the poorer
sector of the community may find their way to advice offices which may succeed in obtaining for people the services of lawyers which either do not charge for their services – such as the LRC – or who are able to obtain legal aid or who do the work on contingency.
- The factors to which Didcott J alluded in Mohlomi v Minister of Defence to underscore the unreasonableness of a six month limitation of action provision, apply as forcefully in respect of the 180 day provision in the Bill. After discussing the disparities between Chapter III of the Prescription Act 68 of 1969, on the one hand, and section 113(1) of the Defence Act 44 of 1957 and similar legislation which imposed much shorter time periods for the initiation of proceedings, on the other, Didcott J held:
‘That disparity must be viewed against the background depicted by the state of affairs prevailing in South Africa, a land where poverty and illiteracy abound and differences of culture and language are pronounced, where such conditions isolate the people whom they handicap from the mainstream of the law, where most persons who have been injured are either unaware of or poorly informed about their legal rights and what they should do in order to enforce those, and where access to the professional advice and assistance that they need so sorely is often difficult for financial or geographical reasons. The severity of section 113 (1) which then becomes conspicuous has the effect, in my opinion, that many of the claimants whom it hits are not afforded an adequate and fair opportunity to seek judicial redress for wrongs allegedly done to them. They are left with too short a time within which to give the requisite notices in the first place and to sue in the second. Their rights in terms of section 22 [of the interim Constitution] are thus, I believe, infringed.’
- As against the position of the poor, the illiterate and the marginalised, it is a safe bet that the rich and the powerful will more often than not be able to meet the 180 day cut off. They have easy access to lawyers and are able to pay for the services of as many as they need.
- The fact that the Bill allows for the 180 day period to be extended in the circumstances set out in section 10 is not a cure all for a number of reasons.
- Anyone who has litigated against the State (both before and after April 1994) will know that agreement to extend the 180 day period is unlikely to be granted in the majority of cases. The State will, in most cases, either actively fight the issue of whether an extension of time is in the interests of justice or, at least, put the applicant to the proof that it is.
- The first danger here lies in the balance that the proposed legislation probably envisages between the right to just administrative action and administrative convenience. The right can be limited through the back door in this way. When an applicant is non-suited because of his or her delay in initiating proceedings, the effect of this is to ‘convert’ an invalid administrative act, by default, into a valid one. In Harnaker v Minister of the Interior Corbett J conceded as much:
‘It is not disputed that an aggrieved party may be precluded by delay from setting aside, upon review, the proceedings of a quasi-judicial statutory body. In such a case the grounds of review might, for example, be that the body had exceeded its powers. If this ground were substantiated, the review would establish that the proceedings and any act following therefrom were null and void. The application of the delay rule in such a case would prevent the aggrieved party from establishing such nullity. In a sense delay would, therefore, "validate" a nullity.’
- The second danger lies in the focus of the litigation. If, more often than not, the state is going to oppose the extension of time, the focus in litigation will tend to change from the conduct of the administration in relation to the cause of action to the conduct of the applicant in bringing the application: the applicant will be required to ‘beg’ to be allowed through the doors of the court. This also will tend to dilute the right to just administrative action and the right of access to court guaranteed by the Constitution.
- Administrative law cases often generate difficult issues of public policy. The issues are likely to grow more difficult and bigger, particularly as more people and organisations begin to approach courts to vindicate or protect their socio-economic fundamental rights. Technical procedural mechanisms like the 180 day time period may serve as a convenient ‘bolt hole’ for some judges or magistrates who find themselves overwhelmed by the magnitude of the issue or the difficulty of the decision on the merits, or who might simply have a pro-executive approach to matters of administrative discretion or socio-economic rights.
- From a practical point of view, the 180 day time period will undoubtedly force lawyers, for their own protection, to institute proceedings as a first step, rather than trying to resolve matters through negotiation. From a policy point of view, therefore, this provision will have the effect of over judicialising disputes between individuals and the administration. It will also, no doubt, lead to a substantial amount of unnecessary and costly litigation on what the ‘interests of justice’ mean in this context, and related issues.
- It is, furthermore, doubtful that it is necessary for the Bill to contain a provision such as the 180 day time period at all. The common law delay rule, with all is flexibility, is entirely adequate and has served the cause of administrative justice well for more than a century in this country. Gauged against the common law delay rule, the 180 day provision is most oppressive. In no reported case in South Africa has it been held that a failure to institute proceedings within 180 days is unreasonable.
- The functioning of the delay rule was discussed insightfully in the leading case of Scott v Hanekom. In this matter the respondent took the point that
the applicants had not, in their founding papers, explained the delay of some six months, in bringing the application to challenge the lawfulness of community council elections. Marais AJ held that this was not necessary or desirable in the large majority of cases. He held:
‘I do not read the decision in that case [the Wolgroeier’s case] as laying down an inflexible rule that an applicant in review proceedings must, as a matter of course, devote portion of his launching affidavit to an explanation of such delay as may have occurred in initiating the proceedings. There are cogent reasons why such a rule should not be laid down. The scope of review proceedings is limitless. The antecedent investigations and preparation of process may be simply or complex. The time required for this purpose may be short or it may be long. The parties may have spent many fruitless months in attempting to negotiate an acceptable compromise or settlement before resorting to litigation. Is each prospective applicant in a review proceeding to apply his mind to the question of the notional reasonable time within which his application should be brought and, if he does not initiate his proceedings within that period, must he, when he launches his application, spell out what the circumstances were that led to the delay? And must he do so, for example, even although the respondent is well aware of the reasons for the delay because the parties have been negotiating for months to reach a compromise, simply because the Court may mero motu question the delay?
I can think of few things more calculated to result in a frequent and often wholly unnecessary increase in the costs of such proceedings than an affirmative answer to these questions. Because of the elasticity of the concept of a reasonable time, and the potentially widely differing individual assessments of what such period would be in any particular case, the likelihood is that, for safety’s sake, it would become standard practice for applicants in review proceedings to detail in their launching affidavits all that has happened since the decision which it is sought to review was given. In my judgment, such a development in the practice of the Courts has nothing to commend it.
In my view, the period of time within which review proceedings are brought, forms no part of an applicant’s cause of action. The denial of access to the Court because of an unreasonable delay arises from an objection de hors the merits of the case and it is fundamentally procedural in character. Delay in initiating review proceedings is pre-eminently a point which the respondent or the Court should raise because the respondent and the Court are best able to judge whether, having regard to the respective spheres of interest of each, the lapse of time which has occurred merits the raising of an objection.
I recognise that there may be cases (and they are likely to be rare) in which the delay is so manifestly inordinate that an applicant can be expected to explain the delay in his founding affidavits. But, unless the delay which has occurred does fall within this extreme category of cases, an applicant should not be expected, as a matter of course, to explain, in advance of any objection by the respondent or the Court, any apparent delay which may have occurred. If such an objection is raised by the respondent, the applicant can deal with it in his replying affidavits. To the extent that in doing so he makes allegations which the respondent has not had an opportunity of meeting in his opposing affidavit, the respondent obviously would be entitled to file a further affidavit dealing with such allegations. In the rare case where the respondent raises no objection to any delay which has occurred, but the Court does, I cannot think that any Court would refuse to allow the applicant to put before it a further affidavit explaining the delay.’
- As explained by Marais AJ above, the common law delay rule functions very much in the shadows and, in practice, hardly ever usurps the limelight from the merits. That is so particularly because the respondent, in order to succeed, would be required to make out a case that he, she or it has been prejudiced by the delay or that some other similar circumstances exist. That is as it should be. The formulation in the Bill turns this around and places the obligation, essentially, on the applicant.
- In Scott v Hanekom Marais AJ concluded as follows on the delay in that case:
‘Unless therefore the delay which occurred in the present case falls into the category of delay which is manifestly inordinate, I am not prepared to hold that the applicants should have explained the delay in their launching affidavits, and that, having failed to do so, they are precluded from explaining it in their replying affidavits in response to an objection pertinently raised by the first respondent. I am not satisfied that a delay of some six months in the launching of this application is a delay of so gross a nature that it called for explanation by the applicants ab initio. It follows that there can be no legitimate objection to the matter which the applicants inserted in the replying affidavits to explain and account for the delay which occurred.’
- From the above, it is, no doubt, apparent that it is the LRC’s view that the 180 day time limit ought not to be included in the Bill. It may well be unconstitutional and, even if it is not, it is suggested that it will operate unfairly in respect of most victims of unjust administrative action, is unworkable from a practical point of view and will work to the detriment of the proper administration of justice.
- The underlying reason for the delay rule at common law is said to be the idea that the courts are reluctant to allow an applicant to ‘drag a cow long dead out of a ditch’. It therefore articulates a concern for the position of the respondent who may be prejudiced by a long delay and it also seeks to articulate a policy that matters should be completed while witnesses are available and have relatively fresh recollection of relevant events. Its basis was described as follows by Corbett J in Harnaker v Minister of Justice:
‘As I understand the position, the raison d’etre of this rule is the fact that review under the common law, being an inherent jurisdiction exercised by the Court, is not governed by any statutory rules of procedure and, consequently, unlike other procedures, it is not circumscribed by specific time limits. It has been recognised by the Courts that an undue and unreasonable delay on the part of an aggrieved party in initiating review proceedings may cause prejudice to other parties to the proceedings and that, therefore, in such cases the Court should have the power to refuse to entertain the review. The same approach has been adopted in regard to review proceedings governed by statute but in respect of which no time limits have been laid down by the statute.’
- It is suggested that the delay rule, as articulated above, is more instep
with the spirit, purport and objects of the Constitution than sections 8 and 10 of the Bill. It is the LRC’s submission, therefore, that section 8 (1) should be deleted and that a corresponding deletion should be effected in respect of section 10(1) of the Bill.
- Section 2 of the Bill.
- Section 2 of the Bill purports to articulate the rights contained in section 33 of the Constitution. It does not do so. Instead, in purporting to articulate the rights contained in section 33 of the Constitution, it articulates the rights contained in section 24 of the interim Constitution.
- As section 2 (1) of the Bill clearly, and on its own terms, does not give effect to the rights contained in section 33(1) and section 33(2) of the Constitution, it is probably unconstitutional.
- It is suggested that sections 2(1) and 2(2) of the third version be replaced with the equivalent sections in either the first or second versions.
(f) Machinery for Reform.
- It is noted with considerable regret and concern that, from the first version to the third version of the Bill, the machinery for meaningful on-going administrative law reform has been systematically dismantled.
- In the first place, it is the LRC’s submission that a system of administrative law claiming to function in accordance with values of accountability, responsiveness and openness must provide for the publication of rules and standards along the lines set out in Chapter 5 of the first version or even section 13 of the second version.
- To vest this function, on a discretionary basis, in the Minister of Justice is far from adequate. Indeed, section 11(1) (g) of the Bill has watered this down to such an extent that the Minister’s discretion relates to the establishment, duties and powers of an advisory council which may advise the Minister on, inter alia, ‘the appropriateness of publishing uniform rules and standards which must be complied with in the exercise of administrative actions, including the compiling and maintaining of registers containing the text of rules and standards used by organs of State’.
- In the second place while one may have sympathy with the government’s fiscal concerns about the establishment of an Administrative Review Council, the view expressed by the Project Committee of the South African Law Commission which drafted the first version of the Bill must be taken seriously. It said that it considered the Administrative Review Council or a similar institution to be ‘one of the keys to harmonizing the constitutional requirements of administrative justice and efficient administration and, hence, to the success of the Bill. If this capacity is not created, the Bill cannot work’.
- The LRC supports this view. It is suggested that the Bill include provisions relating to an Administrative Review Council or similar institution. If necessary, the sections creating and empowering it can be brought into operation at a later stage when funding is available or when agreement has been reached with either the South African Law Commission or the Human Rights Commission for it to fall under the auspices of one or other of these institutions.
66 In summary, therefore, it is the LRC’s view that:
66.1 section 1(d) of the Bill should be amended to make it possible for alleged victims of unjust administrative action to approach a court having jurisdiction in respect of the place where the effect of the administrative action is felt;
- section 8 and 10 of the Bill should be amended so that the common law delay rule, rather than the more restrictive 180 day provision and equally restrictive ‘condonation’ provision, will regulate the time for launching applications to review administrative action section 8 and 10 of the Bill should be amended so that the common law delay rule, rather than the more restrictive 180 day provision and equally restrictive ‘condonation’ provision, will regulate the time for launching applications to review administrative action;
- sections 2(1) and 2(2) of the Bill should be replaced with the equivalent sections in either the first or second versions so that it properly reflects the constitutional requirement of giving effect to the rights contained in section 33 of the Constitution; and
66.4 either the first or second versions (in that order of preference) be preferred over the third version in respect of the creation of machinery for meaningful on-going administrative law reform.
DATED AT GRAHAMSTOWN ON THIS THE 16TH DAY OF NOVEMBER 1999