1 This comment is written from the perspective of someone who has headed a small- to medium-size national government department for 3˝ years, after having practised for many more years as an attorney, much of the practice having been in the area of administrative law.

2 I believe that enactment and implementation of this Bill will be a major step forward in improving public administration in South Africa. Despite the new Constitution, significant parts of public administration remain resistant to the need for fair administrative process, and to the need for public accountability and justification of conduct which professes to serve the public interest.

3 When the SA Law Commission distributed its Discussion Paper 81 with a draft Bill, I made detailed comments to the Commission. The new version of the Bill addresses most of the concerns which I had raised.

4 Against this background, I have the following comments on the current draft of the Bill.

Clause 1

"administrative action": It is not clear to me whether policy decisions made by Ministers constitute "administrative action", and are therefore subject to the requirements of the Bill. It is not clear whether the list of exclusions relating to the functions of the National Executive, excludes policy decisions from the ambit of the Bill. To my mind, it is important to stipulate clearly that they are excluded. For example: the Minister for Agriculture and Land Affairs is currently considering a change in the structure of the subsidy for land acquisition under the land reform programme. A policy change of that kind requires political justification: but it would not be appropriate for it to be treated as an "administrative action" subject to the procedures set out in the Bill. This is particularly so given the provisions of clause 7(1)(g) [see comments below].

Clause 2

In various parts of the Bill, the "trigger" which brings administrative action within the ambit of the Bill is that rights (and sometimes interests) are adversely affected or threatened. That is an appropriate test. However, it does create the possibility of slowing down effective administration and giving rise to litigation in unnecessary cases - where existing rights and interests are affected, but in only a minimal way. One can think of many practical examples of this kind - for example, settlement of a land restitution claim.

I therefore suggest that in each instance, consideration be given to making the "trigger" factor that rights (or interests) are materially and adversely affected or threatened. If this proposal is adopted, there will be a need for consequential amendments throughout the Bill where this test is applied.

There seems to be considerable overlap between clause 2 and other clauses. For example:

There is also some inconsistency between these clauses.

It is not clear what the purpose of clause 2 is, except in relation to the duty to give reasons. All of the other rights in sec 32 of the Constitution are re-stated and elaborated in the other provisions of the Bill.

Clause 4

The definition of the minimum content of procedurally fair administrative action, and of other elements which depend on the circumstances of each case, is a practical way of dealing with the wide variety of sorts of administrative action which fall within the scope of clause 4.

However, there are very many administrative actions of a fairly routine kind, which are made on a daily basis and which for practical reasons should not comply with even the requirements of clause 4(2). Examples here are the decision whether or not to approve an application for a social pension, or for a housing subsidy, or for a land acquisition grant. These decisions clearly need to be reviewable. However, given the scale on which they are taken, and the "mass" procedures which are necessarily followed, it is not practical for the prior procedures set out in clause 4(2) to be followed in each individual case.

It appears that clause 4(4) is intended to deal with this sort of situation. I suggest that the test for justifying departure from the requirements of clause 4(4) should be tha*t this is necessary or reasonable. The test of necessity is very high. There will be many instances where a particular procedure could be followed, but should not for reasons of administrative effectiveness. Such cases would meet a test of "reasonableness", but probably not a test of "necessity".

Clause 5

A decision in terms of clause 5(2) and 5(3) not to hold a public enquiry, or not to follow a notice and comment procedure, may be construed as an administrative action which adversely affects the rights and interests of members of the public. This would bring that decision within clause 4. It would lead to a situation where in terms of clause 4, a hearing should be held to determine whether a public enquiry should to be held or a notice and comment procedure should be followed.

Clause 5(4) can deal with such situations - and on the same basis as in relation to clause 4(4), I would suggest that departure should be permitted where this is reasonable or necessary.

Clause 7

The codification of the grounds of review will result in greater clarity for administrators on their responsibilities.

Clause 7(1)(g) appears to invite the courts to make decisions on policy matters:

Proportionality and seeking "less restrictive means" are appropriate tests where the executive is seeking to justify a limitation of constitutional rights. But it is difficult to see why courts, which are not politically accountable, are better placed than a politically accountable executive decide on the best way to balance competing interests and determine priorities. How does a court weigh how "beneficial" and how "adverse" the consequences of an action are? That is a matter of political judgment. And considering whether the balance is right, involves taking a view on which interests are more important than others, and how much more important. This is an even more political judgment - in Laswell’s famous phrase, politics is precisely about "who gets what, when and how". It seems to me that courts are not well equipped for this role, either institutionally or in terms of their expertise.

The argument has even more force in relation to the test of "less restrictive means". Less restrictive of what? The language is inappropriately borrowed from the situation where the action is a limitation of constitutional rights.

In saying this, I do not wish to suggest that we should go back to the "bad old days" of the Chetty case, where it was held that before a decision would be reviewable, it had to be so grossly unreasonable as to warrant the inference that the decision-maker had abused his or her discretion.

I would suggest that a more appropriate test be introduced - for example, the test of rationality, or of whether the action is justifiable, in the sense of being capable of rational justification.

It is worth noting that Clause 7 applies to all administrative action and not only administrative action which affects right or interests. This is surely correct - but it should also give rise to caution in setting an appropriate threshold for judicial intervention.

Clause 8

Clause 8(1) There appears to be an inconsistency in relation to the time periods for instituting proceedings for judicial review. The 180 days runs from the time when the litigant was informed of the action. However, if he/she was not informed of the action, then it runs from the time when he/she 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. There does not seem to be any reason for these differing standards.

Clause 8(3) Some statutes create their own procedure for judicial review. For example, sec 36 of the Restitution of Land Rights Act, 1994, provides that the Land Claims Court shall have all of the High Court’s powers of review with regard to any act or decision of the Minister, Commission, or any functionary acting in terms of that Act.

I therefore suggest that clause 8(3) should be subject to any provision to the contrary in any other statute - or differently stated, that all proceedings for judicial review must be instituted in the High Court or the Constitutional Court unless otherwise provided by another statute.

Clause 11(3)

It is not clear what procedure is to be followed in "submitting" a regulation to Parliament, or what action Parliament must or may take once the regulation is "submitted". The purpose of this provision is therefore not clear to me.



19 November 1999