I would like to briefly comment on some issues of the Administrative Justice Bill as tabled in Parliament. I hope that it will add value to your discussions on the Bill.
Section 2 I do not understand why section 2, although referring to section 33 of the Constitution, is quoting section 24 of the interim Constitution - and still with some alterations (inclusion of 'adversely' before 'affected' and 'affects').
I suggest choosing the wording of section 33 (1) and (2) of the constitution.
Exemptions in sections 4 (3),5 (4) and 6 (4) Why is the benchmark for an administrator to deviate from the minimum requirements set so low - and additionally in such a vague manner? 'If circumstances justify it', an administrator may depart - 'to the extent necessary' - from obligations, which are already very flexible and open for adaptation. Words like 'adequate', 'reasonable', 'appropriate' will guarantee enough flexibility. Such wording creates the impression that finally it is up to the administrator's discretion to decide on what to do and what not. As these sections deal with the basic requirements of fair administrative action as entrenched in the Bill of Rights, even the limitation clause in section 36 of the constitution would not allow limitation in such an open and vague manner.
I am wondering whether such a clause fulfills the constitutional requirement of certainty and clarity. A definition of the quality of such circumstances is required.
Additionally such broad discretion is not consistent with the more limited power of the Minister in section 4 (6) (a), where 'exceptional' circumstances have to be established to grant exemptions to the extent necessary.
Conclusion: These sections already allow for great flexibility. There is no need to additionally set up such a low threshold. This can even interfere with the narrower requirements of the limitation clause in section 36 of the Constitution. Such wording may even be unconstitutional because of uncertainty and vagueness. My recommendation is to use the term 'in exceptional circumstances' and 'to the extent necessary'.
Information about the right to request reasons (section 6) It is not meaningful to establish the duty to inform the person of the right of appeal and review in section 4 (2) (d), but not of the right to request reasons. This information has to be given to ensure that in particular those people who are not legally skilled know what their rights are and by doing so giving them access to justice.
As the ambit of section 6 is limited to rights adversely affected and therefore narrower as the ambit of section 4, I propose to include (e) and state that 'adequate information of the right to request reasons (has to be provided), if applicable in terms of section 6' (only if rights are adversely affected).
Exhaustion of domestic remedies In order to limit court cases to a reasonable and manageable quantity, I suggest to clearly require a litigant to have first exhausted applicable domestic remedies like appeal to tribunals etc. Section 4 (1) (d) requires an administrator to give adequate notice of any right to appeal or review. This provision apparently also includes domestic remedies. In case Parliament wants these remedies to be exhausted first, this should be clearly spelt out.
Regulatory power by the Minister (section 11) It is obviously possible to give the Minister the responsibility to ensure further development of administrative justice and refrain from setting up an 'Administrative Review Council' as discussed by the SALC in their consultation phase. Nevertheless, I have my doubts whether it passes constitutional muster if it is completely up to the Minister's discretion to embark on such further steps - or not.
One question is related to the debate of the scope of section 33 of the Constitution. I learnt that section 33 (3) has to be interpreted in that way that legislation has to be in place by February 4, 2000, that goes beyond the narrow scope of the Bill as being discussed presently. By giving a compulsory mandate to the Minister on issues like a comprehensive and consistent system of internal and external administrative remedies, the Bill would circumvent these problems.
Notwithstanding these concerns, I would argue, that, without a clear mandate to the Minister to establish such a system of internal and external administrative remedies, the objective of the constitution is not met: To ensure that in particular ordinary people have effective tools to have administrative action reconsidered in a way which is a economic, quick and as informal as possible. Judicial review on its own, although of greatest importance as measure of last resort, is not sufficient. It is expensive, cumbersome and time consuming. Poor people will not easily opt for this route.
Internal or external administrative control mechanisms will fill this gap. They are already established in many cases, in particular in new legislation. Nevertheless, there is a need to fill the gaps and to decide on the minimum standards. Current legislation opens the whole range of possibilities, which to me is rather confusing and sometimes not even meaningful. I refer to section 64 of the Municipal Systems Bill, where the person affected by a decision of a (…) municipality has to lodge an appeal within 21 days in writing after the decision was made (not after notification!). For people who cannot read or write and who live in remote areas such a provision is very unfortunate. On the other hand municipal councils are not bound by any timeframe. I clearly see a need to set meaningful minimum standards, which should be developed within reasonable time. Even if you do not share the view, that section 33 of the Constitution makes such a provision compulsory, I would hope that Parliament will give a clear mandatory guidance to the Minister that such legislation has to be promoted in due time.
I hope that my outline is of some help to finally come up with legislation, which meets the constitutional requirements and by doing so will serve the people of South Africa. Thank you for the opportunity to submit my comments.
Gesellschaft für Technische Zusammenarbeit (GTZ) Advisor
German Technical Co-operation