1. The Southern African Catholic Bishops' Conference welcomes the introduction of the Administrative Justice Bill. It is in the arena of the public administration that ordinary people most often come into contact with the institutions and mechanisms of the state. It is vital for the health of our democracy that this contact be characterised by fairness and justice. The Bill has the potential to further this objective.
2. We wish to restrict our comment to one area of concern, one which is central to the whole purpose of the Bill, and one which, regrettably, threatens substantially to limit its efficacy.
3. Clause 2(1) of the Bill claims to set out the right to administrative justice in accordance with section 3 of the Constitution. However, it quite plainly fails to do so. instead, it gives limited effect to the administrative right contained in the Interim Constitution (Act 200 of 1993).
4. Clause 2(1)(a) to (d) of the Bill is taken almost word for word from section 24 of the Interim Constitution, with this difference: The word 'adversely' qualifies 'affects' and 'affected or threatened' in (a) to (d), whereas it does not appear at all in section 24 of the Interim Constitution. Thus, clause 2(1) not only fails to give effect to the right contained in section 33 of the Constitution, it also falls short of the similar right in the Interim Constitution, and consequently of the 'temporary' right set out as a transitional provision in clause 23(2)(b) of Schedule 6 of the Constitution.
5. The memorandum to the Bill offers no explanation or motivation for what is a significant curtailment of the constitutional right. Neither do either of the draft Bills compiled by the South African Law Commission propose such a limitation.
6. The drafters of the Constitution clearly intended to provide a much wider right than that set out in the Interim Constitution; otherwise, they could simply have replicated the latter's section 24 when drawing up the `final' Constitution. Given that they did not do so, it is difficult to imagine why the drafters of the current Bill have taken it upon themselves to attempt to eviscerate the right in this fashion.
7. We suggest that the Bill, as it stands, fails to satisfy section 33(3) of the Constitution in that it clearly does not 'give effect' to the right in section 33(1). We further suggest that the limitations clause (section 36 of the Constitution) cannot rescue the Bill. The limitation the Bill attempts to impose cannot be said to be reasonable and justifiable in the light of section 36(I)(a) to (e).
8. It is worth mentioning that an analogous situation arose with the Open Democracy Bill recently. That Bill failed to give effect to section 32(I)(b) of the Constitution (access to privately held information), with the result that the Ad Hoc Committee considering the Bill had to instruct the drafters to rework it. 9) We therefore submit that clause 2(1) of the Bill be amended to read as follows:
In accordance with Section 33 of the Constitution, every person has the right to -
(a) administrative action that is lawful, reasonable and procedurally fair;
(b) be furnished with written reasons for administrative action which adversely affects any of his or her rights or interests, unless the reasons for such action have been made public; and
(c) administrative action which is justifiable in relation to the reasons given for it.