Note: updated submission to follow
THE PUBLIC PROTECTOR
2. Ad Clause 1 -Definitions:
(o) "standard" - the definition of "standard", as it presently stands in the Bill, it is submitted, is vague and uncertain and potentially too far reaching. While the terms "norm", "guideline", and "general instruction" might be general in application and relatively easy to determine with clarity, the inclusion of the terms "policy" and "precedent" might lead to uncertainty and confusion. Thus, by way of example, while it may be appropriate that a general policy guideline of the Public Protector, concerning when the discretion to entertain a complaint referred to him/her more than 2 years after the incident giving rise to the complaint should be exercised, constitutes a standard for the purposes of the Bill, it is submitted that a particular instance of the use of that discretion, in the form of application to a particular set of facts in a particular case, does not properly fall within the definition of standard. Such application may amount to an "act" or "decision" but not a "standard". This is particularly relevant in respect of its application referred to in Clause 14 of the Bill, in accordance with which, every organ of state must submit, compile and maintain an up to date register containing the text of all current rules and standards used by it. Would such register have to include a record of precedents constituting examples of the application of a policy?
The omission of the expressions "policy" and "precedent or other similar statement".
"2 . The provisions of this Act apply to all organs of state and all natural or juristic persons contemplated in section 8(2) of the Constitution, and exercising public power or performing public functions, except where expressly provided otherwise, ...any provincial Constitution."
4. Ad Clause 5 - Reasons for Administrative Action
Ad Sub Clause (3): There should be provision for the expedited furnishing of reasons, in cases of urgency. In certain instances speedy review proceedings will be essential to protecting the rights of persons adversely affected by unlawful administrative action. Successful proceedings will be dependent upon furnishing of reasons. Urgency should be determined according to impact ( ie extent of harm and interests involved).
It is suggested that the provisions of Clause 20 of the Open Democracy Bill could be used as a guideline as to how the issue of urgency should be addressed.
5. Clause 6-Procedure for Review
Although this clause aims to provide for the time periods within which a person may approach a court for judicial review and is permissive in context, practical experience has shown that in most instances where a person`s rights have been adversely affected by administrative action, lack of financial capacity prevents such person from having access to a court of law. It should be emphasised that a complaint to the Public Protector cannot be regarded in all cases as an alternative to court action, as the Public Protector does not have the powers to issue orders or to grant compensation. The Public Protector can only go as far as recommending corrective action. However, should the government agency involved refuse to accept such a recommendation or unduly delay the implementation thereof, the complainant`s prejudice will continue until further steps have been taken by the Public Protector, such as reporting to Parliament, etc, to have the matter resolved. This might not be in the best interest of the complainant as the subject of the action concerned might require more speedy intervention and an enforceable order. The need for alternative structures, such as referred to in Clause 18(c), is thus confirmed. Review by the courts should be a measure of last resort.
"10 (1) Every organ of state, with the exception of the institutions provided for by the provisions of Chapter 9 of the Constitution, 1996, must submit the text of rules which it proposes to make to the Drafting Office for consideration and comment."
7. Clause 13 - Automatic Lapsing of Rules and Standards
Although the idea that rules and standards should be subject to regular review is supported, the concern expressed by others, as noted in footnote 30 of the Revised and Annotated Draft Administrative Justice Bill, that the automatic lapsing of rules, especially substantive rules, will cause legal uncertainty, is shared. It is, therefore, submitted that, instead of providing for the automatic lapsing of rules and standards, provision should rather be made for the periodic review of such rules and standards. Failure to adhere to such requirement would amount to improper and unlawful conduct, that can be referred to the office of the Public Protector for investigation and appropriate remedial action.
"13(1) : All rules and standards:-
shall be reviewed after 10 years ."
8. Clause 15 - Public Enquiries
Section 182 of the Constitution, 1996, provides that the Public Protector has the power to investigate any conduct in state affairs or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice. The "conduct" referred to would in all cases amount to what is defined by the Bill as "administrative action". The matters complained about to the Public Protector and the investigations initiated by him/her would thus include an evaluation of the administrative action taken to establish whether or not it was improper or caused prejudice. Many of the matters investigated by the Public Protector are of 'wide public interest and consequences" and the Public Protector has a "wide discretion" as to the remedial action that should be taken. Furthermore, any investigation conducted by the Public Protector would resort under the definition of "administrative action" as provided for by the provisions of Clause 1 (a) of the Bill. As the provisions of Clause 15 currently read, this means that it would be required of the Public Protector to hold " a public enquiry" in many of the matters investigated by his/her office. The view is held that this cannot be the intention of the drafters of the Bill as it would lead to absurdity.
As we understand the aim of this provision, public participation should be involved in administrative actions where the object is to determine a matter of wide public interest. However, once such a matter is referred to the Public Protector the public participation required should already have been invited. Whether or not a public enquiry had been held would thus be one of the issues to be investigated by the Public Protector. It would not make sense to expect of the Public Protector to hold another public enquiry when dealing with such a matter.
An example of a matter of wide public interest investigated by the office of the Public Protector is the well known, so called, Sarafina II case. There was general public interest in the outcome of the investigation and the Public Protector had a wide discretion as to the recommendations that had to be made. It is submitted that a public enquiry under these circumstances would have served no purpose. The administrative action complained about had already been taken. The Public Protector had to establish whether such action was proper under the circumstances. This kind of evaluation is not dependent upon public opinion, and, it is submitted, should not be influenced by such opinion. This evaluation is based upon compliance with proper standards of administration, fairness and procedure. In this respect a distinction should be made between the procedure to be adopted by an organ of state before an administrative decision is taken, and conduct by an independent institution, such as the Public Protector, in reviewing the manner in which that decision was taken. Should it be required from the Public Protector to hold public enquiries as is envisaged by this Clause, it would not only subject his/her findings to the prevailing public opinion, which would have an influence on his/her independence, but it would also have a devastating effect on the operations of his/her office, that will result in improper delays in dealing with complaints, etc.
Consequently, it is submitted that the Public Protector should be specifically excluded from the provisions of Clause 15.
"15 (1) An organ of state, with the exception of the Public Protector , or natural or juristic person intending to take administrative action...hold a public enquiry."
9. Clause 16- Administrative Investigations
For the sake of clarity, it is submitted, that section 16 would not be applicable to the investigations by the Public Protector. It is not within the mandate of the Public Protector, as set forward in the Constitution or the Public Protector Act, to determine the status, rights or duties of persons. As discussed above, the role of the Public Protector in this respect, is, where appropriate, to review the procedure and conduct whereby such a decision concerning the status, rights or duties of a person was made by an organ of state or person exercising a public function.
In principle, however the provisions of Clause 16 is welcomed and supported.
It is submitted that the potential benefit of the presence of the Public Protector on the Council has to be weighed against the potential disadvantages. The principle of neutrality is central to the proper functioning of the office of the Public Protector and cannot be compromised. As an institution of last resort, the Public Protector should always be available to any person or institution who wants to complain about any government agency or body. Although a conflict of interests might be remote under the circumstances, the fact that it exists cannot and should not be ignored.
It is suggested that the reference to the Public Protector be substituted by including the Chairperson of the Public Service Commission as a member of the Council.