NATIONAL ASSOCIATION OF DEMOCRATIC LAWYERS
SUBMISSION ON ADMINISTRATIVE JUSTICE BILL
The National Association of Democratic Lawyers (NADEL) welcomes the tabling of the Administrative Justice Bill (Bill). The bill, in giving effect to section 33 of the Bill of Rights, will contribute to the building of an effective, transparent and accountable democracy.
The exercise of rights contained in our Bill of Rights is directly effected by the right to just administrative action. The most impoverished members of our society depend on the state to provide access to their rights, in particular socio-economic rights. Thus they depend on the state for social security, housing, water, health care and education.
NADEL’s Human Rights Research and Advocacy Project does research on the social welfare system. Our research has shown that decisions on who gains access to these state-provided facilities are not taken fairly and in some cases not taken lawfully. For example a research focus group in the Overberg identified a district medical officer who charges R50 to examine applicants for the state disability grant. While this payment is not lawful, its fulfillment is the only way to acquire the necessary certificate to access a disability grant and thus one’s right to social security.
The above example demonstrates that unjust administrative action thrives in an environment of maladministration and corruption. Thus the bill cannot be examined without reference to the mechanisms for dealing with both maladministration and corruption. Indeed, to ensure that the state fulfills its constitutional obligation of giving effect to section 33(1) and (2) the bill must provide measures to establish an environment that discourages unjust administrative action and its enabling partners – maladministration and corruption.
Similarly, the bill must interact constructively with the Open Democracy Bill, which gives effect to the right to information. Our studies show that unjust administrative action can be the result of misinformation or lack of information on the part of administrators as defined by the bill. On the other hand lack of information or misinformation perpetuates the situation, as citizens do not know their rights and how to enforce them.
In order to address these problems the bill must::
- Spell out the meaning of just administrative action in compliance with the constitution and in manner that is accessible.
- Place a positive duty on the state to give effect to these rights.
- Address the systemic problems that create an environment in which unjust administrative action can occur, in particular corruption and maladministration.
- Provide a suitable, accessible and affordable mechanism of enforcing these rights.
Right to Administrative Justice
- We submit that the provisions spelling out the right to just administrative action are not in accordance with the constitution. The constitution sets out clearly:
" (1) Everyone has the right to administrative action that is lawful, reasonable and procedurally fair.
(2) Everyone whose rights have been adversely affected by administrative has the right to be given written reasons."
- It is conventional wisdom that the constitution establishes a minimum threshold for rights. Case law and legislation build upon this foundation. Yet this bill limits the right to just administrative action beyond the right established in our constitution. In setting out the rights the bill adds the following qualifiers:
- "where his or her rights or interests is adversely affected or threatened" in clause 2(1)a and d
- "where his or her rights or legitimate expectation is adversely affected or threatened" in clause 2(1)b
- These qualifiers are then carried into others sections of the bill in an inconsistent and confusing manner. For example, while clause 2(1) b qualifies that right to procedurally fair administrative action in terms of rights and legitimate expectation; clause 4(1) qualifies it in terms of rights and interests.
- It is submitted that these qualifiers constitute a substantive limitation of the rights contained in the constitution. They narrow the ground of what could be considered lawful, procedurally fair and reasonable administrative action.
- THUS, NADEL proposes that the above qualifiers are deleted from clause 2(1) a, b and d. It follows that similar qualifiers will be deleted throughout the bill.
Procedurally fair administrative action
- Clause 4(1) of the bill expressly links procedurally fair administrative action to situations where one’s rights or interests are adversely affected. It is submitted that in making provisions for a public inquiry and a notice and comment procedure the bill acknowledges the particular rights of those with legitimate expectations. In the Eastern Cape for example, recipients of grants have had their grants suspended as a result of the registration of grant –recipients. These people have a legitimate expectation to continue to receive grants and thus a stronger case than new applicants.
- We submit that the bill should give recognition to the particular rights of people with legitimate expectations. THUS, NADEL proposes the insertion of the phrase " or legitimate expectation" in clause 4(1).
- NADEL supports the provisions for a public inquiry and a notice and comment procedure in clause 4(2) and (3). Clause 4(3) however lists discretionary requirements for a fair procedure.
- As stated above, we believe that the exercise of rights in particular the right to just administrative action requires information. Further, the constitution provides for the right to written reasons and this must be an integral part of procedural fairness.
- Further, administrative action affects the exercise of rights. In "serious or complex cases" people must be given the opportunity to defend their rights. This need not only occur after the action by review, but can occur prior to the action through legal representation. We submit that it is a desirable objective of this bill to provide for prevention and not solely review of unjust administrative action.
- THUS, NADEL proposes that clause 4(3) a, b and e is moved to clause 4(2) which sets out the minimum requirements for a fair procedure.
- Clause 4(4) gives an administrator the discretionary power to depart from the minimum requirements discussed above. Administrators are the primary committers of unjust administrative action. They do this for a multiple of reasons ranging from not knowing relevant information, to taking shortcuts to ease a heavy work load, to using loopholes to abuse the system. We submit that it is undesirable to give administrators such wide discretionary powers. This will limit the effect of this bill and its ability to build an effective and accountable state administration.
- We acknowledge that there may be a need to suspend the minimum procedure in exceptional circumstances or to ensure the efficiency of administration. However, we submit that the bill provides for this in giving discretionary powers to the Minister to exempt administrators, administrative action or a class of administrative actions.
- Similar arguments apply to the same sub-clauses under clause 5 and 6.
- THUS, NADEL proposes that clauses 4(4), 5(4) and 6(4) be deleted from the bill.
- In exercising his/her power in terms of clause 4(6) the Minister will be exercising a legislative power. We submit that this function will have a great impact on the administrative powers of administrators. It will have a direct impact on the functioning of the bill and the exercise of the right to just administrative action.
- THUS, NADEL proposes that this discretion is subject to a notice and comment procedure. This amendment will apply to clause 4(6) and 6(6).
Administrative Action affecting the Public
- We submit that the report of an inquiry must be accessible, in particular to those who participated in the inquiry. We do not believe that publication in the Government Gazette constitutes such accessibility.
- THUS, NADEL proposes that in addition to publication in the Gazette, the bill provides that an administrator must publish a concise summary of the report in a newspaper relevant to the locality of the inquiry. Thus a national inquiry must have the report published in a national paper, a local inquiry in a local paper.
Reasons for Administrative Action
- The right to written reasons for administrative action is partly based on the need to establish whether an administrative action is just. Thus the reasons provided have to be detailed enough to enable one to establish that the action taken was lawful, reasonable and procedurally fair.
- We submit that the current administration has not historically had to furnish reasons. The implication is that they are unaware of what constitutes sufficient reasons and of how to formulate reasons in a comprehensive yet accessible manner.
- THUS, NADEL proposes that the bill provide a basic minimum for information that must be furnished in giving reasons. This must include the following:
- A statement of the empowering act and relevant provisions
- A statement of any relevant standards or rules
- A statement of relevant facts or law upon which the decision was based
- A statement of alternative and less restrictive courses of action which were considered and why they were not followed.
(See submission by Black Sash Trust for formulation)
- As stated above, we believe that this bill should seek to proactively prevent unjust administrative action and to promote efficiency. This can be facilitated by providing that administrators have a duty to inform regarding the right to request written reasons. This will have the effect of ensuring well-considered decisions and record keeping in anticipation of a request for reasons.
- THUS, NADEL proposes the addition of a sub-clause to clause 6 providing that administrators have a duty to inform of the right to written reasons.
Grounds of Review
- We submit that the grounds of review should be stated as positive duties. This makes the bill accessible and understandable for both administrators and the public. This further contributes to the preventative aspects of the bill instead of a solely remedy-driven perspective.
- THUS, NADEL proposes that the provisions of clause 7 be stated in positive terms and titled "Duty of organs of State". This will result in a new clause 8 setting out the grounds of review in contravention of clause 7. (See submission by Black Sash Trust, Annexure A for formulation.)
Procedure for Review
- The bill provides that applicants in terms of this bill must apply for review of administrative action to the High Court. We submit that this forum is neither accessible nor affordable for the majority of South Africans. In particular, the vulnerable members of our society who face the most dire consequences as a result of unjust administrative action.
- We submit that the bill must provide a suitable mechanism to enforce one’s right to just administrative action. This mechanism must be accessible, affordable, expedient and effective. Further, access to information is a form of administrative justice and as argued above an integral part of administrative justice. Thus we believe that the enforcement mechanism set up in terms of this bill must be aligned to the mechanism set up in terms of the Open Democracy Bill.
- We have argued above that corruption and maladministration play a key role in creating an environment that encourages unjust administrative action. The enforcement mechanism contained in this bill must take cognisance of this fact.
- THUS, NADEL proposes that the Public Protector’s Office be included as an instrument of enforcement for this bill. In particular we propose that an additional sub-clause be included in clause 9 providing that cases can be referred to the Public Protector’s Office for further investigation. This will be in cases where corruption or maladministration is suspected.
- The items set out for regulation in terms of clause 11(1) a to f are essential for the effective functioning of administrators in terms of this bill. These regulations will ensure certainty amongst administrators and the public on what procedures are necessary for administrative justice. In particular the code of good administrative conduct provided for in clause 11(1) e will be an educative and interpretive tool for all.
- We submit that the development of an efficient, transparent and accountable public administration requires the sufficient procedures and guidelines. This bill will require administrators to function in a new way and must give them guidance on how best to do this.
- THUS, NADEL proposes that the regulations set out in clause 11(1) a to f be mandatory for the Minister to develop within a specific time frame. We propose the following amendment and addition to clause 11(1):
11(1) The Minister must, within six months of enactment, make regulations relating to –
- The bill provides a discretionary power to the Minister to establish an advisory council by regulation in terms of clause 11(1) g. We believe that the provisions relating to internal complaints procedures and appeals, uniform rules and standards and programmes for public education are of particular importance in the functioning of this bill.
- We understand the financial considerations of establishing such a council and submit that we have existing institutions that can perform these duties. In particular the Public Service Commission is established in terms of the constitution to develop an efficient public administration. The objectives of this bill lie within the constitutional principles that this Commission must promote.
- THUS, NADEL proposes that the duties set out in clause 11(1) g be mandated to the Public Service Commission. Further, a duty to train and educate administrators on this bill must be added to the clause.
- The memorandum attached to the bill discusses the establishment of an advisory council as the sole financial expenditure. We submit that the bill will require financial expenditure in terms of training for administrators and public education. Administrators need to be made aware of the duties imposed on them in terms of this bill. The public needs to be made aware of the rights established by this bill and the procedures to exercise of protect those rights.
- Further, there will be a need to provide extra resources for the Public Service Commission to perform the duties discussed above as para 40.
- Finally, establishing an effective yet accessible and affordable enforcement mechanism will also have financial implications.
It is our firm belief that this bill will play a fundamental role in building an effective and efficient public administration. It will give meaning to the constitutional right to just administrative action and in so doing will empower people in the exercise of other rights. NADEL believes that the bill will only be able to do this if it sets out the law in an accessible manner – for both administrators and the public – and sets out a suitable mechanism for enforcement.