Administrative Justice Bill (B56-99)
20 November 1999

The SACC strongly supports the Administrative Justice Bill and urges its enactment prior to 4 February 2000. At the same time, we raise concerns about specific provisions relating to the scope of the Bill's application, the scope of the general right to administrative justice articulated in the Bill, the criteria for procedural fairness, the phrasing of the grounds of review, and the development of an accessible review and enforcement mechanism. We also call for the reinstatement of definitions of "rule" and "standard".

1.0 Administrative Justice legislation is an essential component of transformation
1.1 The South African Council of Churches (SACC) is the facilitating body for a fellowship of 24 Christian churches, together with one observer-member and associated para-church organisations. Founded in 1968, the SACC includes among its members Protestant, Catholic, African Independent, and Pentecostal churches, representing the majority of Christians in South Africa. SACC members are committed to expressing jointly, through proclamation and programmes, the united witness of the church in South Africa, especially in matters of national debate.

1.2 The SACC strongly supports the adoption of administrative justice legislation to codify and give effect to the Constitutional right to just and procedurally fair administrative action. We believe that such legislation is essential to the further democratic transformation of the state and the promotion of just and accountable government for all people in South Africa.

1.3 The apartheid state was marked not only by the fundamental injustice of its racial policies, but also by the authoritarian and capricious use of state powers in the pursuit of its illegitimate objectives. The state delegated sweeping powers to Ministers, and individuals had virtually no recourse to law to protect themselves from the arbitrary exercise of these powers. Similarly, where state officials neglected their responsibilities or failed to deliver essential services, those who suffered from this neglect had few ways of gaining satisfaction. Consequently, the injury of unresponsive and uncaring administration was added to the insult of racial discrimination.

1.4 Section 33 of the Constitution and the proposed Administrative Justice Bill seek to remedy these legacies of the apartheid era. The SACC welcomes the Administrative Justice Bill (hereafter, "the Bill") as an important milestone on the road to democratic transformation and accountable and transparent government. We applaud the efforts of the South African Law Commission Project Team that developed the initial drafts of the Bill and appreciate the team's broadly consultative approach. We urge prompt enactment of the Bill prior to the 4 February 2000 deadline established in terms of section 23(3) of Schedule 6 of the Constitution.

1.5 In spite of our strong support for the Bill's objectives, we have reservations about a number of the Bill's specific provisions. Below, we raise concerns about:
* The scope of the Bill's application;
* The omission of definitions of "rules" and "standards";
* The scope of the general right to administrative justice as articulated in the Bill;
* The requirements for procedural fairness;
* The grounds for review of administrative action;
* The review process.

1.6 Our position on many of these points has been influenced by the research and analysis of the Black Sash. We share the concerns raised by the Black Sash in its submission and endorse in principle the proposals it has put forward.

2.0 Scope of application
2.1 In general, the Bill would apply to all organs of state and judicial officers, as well as to natural or juristic persons when they are exercising public power or performing a public function. We support this broad application.

2.2 Certain specific categories of functions are excluded from the general scope of the Bill's application. These include certain executive, legislative, and judicial functions. Again, we support the principle behind these exclusions.

2.3 However, we question certain specific exclusions, either because they seem overly broad or because of discrepancies between the functions excluded at the national and the provincial levels. The specific exclusions in section 1(1)(i)(i) and (ii) that concern us are:
* The exclusion of Presidential actions in terms of section 85(2)(e) of the Constitution ["performing any other executive function provided for in the Constitution or in national legislation"]; this catch-all exclusion appears effectively to exempt all Presidential actions from the requirements of administrative justice;
* The blanket exclusion of all the Deputy President's executive functions relating to assisting the President [section 91(5) of the Constitution] also seems too broad;
* The creation of commissions of inquiry by the President in terms of section 84(2)(f) is excluded, while similar powers of provincial Premiers in terms of section 127(2)(e) are not;
* The cabinet duty to act in accordance with the Constitution [section 92(3)(a)] is exempted but the parallel provincial Executive Council obligation to act in accordance with the Constitution and any provincial constitution [133(3)(a)] is not.

3.0 Omission of definitions of "rule" and "standard"
3.1 Earlier versions of the Bill included definitions of "rule" and "standard". These have been omitted from the tabled version. We believe that for the sake of clarity the definitions should be reinstated.

4.0 Scope of the general right to administrative justice
4.1 Section 33 of the constitution states that everyone has the right to administrative action that is lawful and procedurally fair. The language in section 2(1) of the Bill, however, codifies the more narrow definition of the right to just administrative action contained in the interim constitution. In rejecting the interim wording, the Constituent Assembly clearly intended to establish a broader, less qualified right to just administrative action. The current formulation of section 2(1) reverses the Constituent Assembly's action and unjustifiably limits the right to just administrative action to situations where a person's rights or interests are adversely affected.

4.2 An administrative action can be unlawful or not procedurally fair even if it does not adversely affect a person's rights or interests or if it affects a person's rights or interests in a favourable manner. Excluding such situations from the scope of the right to just administrative action is arbitrary and unconstitutional.

4.3 We propose, therefore, that Section 2(1) be amended to read:

(1) In accordance with section 33 of the Constitution, every person has the right to--
(a) administrative action that is lawful and procedurally fair;
(b) be furnished with reasons in writing 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 that is justifiable in relation to the reasons given for it.

4.4 Similarly, the test for procedural fairness found in section 4 should not be limited in its application only to situations where a person's rights or interests are adversely affected. Section 4(1) should be amended to read:

(1) Administrative action must be procedurally fair.

Alternatively, as this is a restatement of the principle contained in the version of section 2(1)(a) that we propose above (see item 2.3), section 4(1) could simply be deleted.

5.0 Procedural fairness
5.1 Section 4 of the Bill establishes a test for procedural fairness. This represents an important tool for promoting administrative justice. However, we believe that there are additional criteria that should be incorporated into this test.

5.2 First, many failures of administrative justice arise not from unfair action by administrators, but rather from a failure to act. Such negligence often has the most damaging impact on poorer households which may be reliant on state grants or services for survival. A failure to process applications and requests accurately and timeously can create enormous hardships for such households. The test for procedural fairness should recognise inaction as unfair.

5.3 Second, administrative actions must not only be fair, they must also be able to be shown to be fair in the event of a review or other challenge. The test for procedural fairness should therefore incorporate a record-keeping requirement to facilitate review.

5.4 We propose that the following criteria be added to section 4(2):

(e) the completion, in a reasonably timely manner, of any decision or other administrative action required in terms of a law, regulation, rule or standard; and

(f) the maintenance of a record of all information pertaining to an administrative action, including all documents submitted or considered and minutes or other records of any deliberations or consultations related to the administrative action.

6.0 Grounds of Review
6.1 We concur with the Black Sash's observation that the Bill's emphasis should be on encouraging administrators to act in a fair and lawful manner from the outset, rather than on relying on posterior correction of unfair actions via costly and inaccessible judicial review mechanisms. We agree that this objective could be promoted by rephrasing the grounds for review in section 7 as positive obligations incumbent on administrators.

6.2 This legal framework should be complemented by the development of a manual for administrators that would provide administrators with practical examples of good administrative practice. Such a manual would also be helpful to private persons who must comply with the Bill insofar as they exercise public powers or perform public functions.

6.3 To this end, the development of a code of good administrative practice, currently optional in terms of section 11(1)(e), should be made obligatory. The Minister of Justice should be required to prepare and publish such a code within six months of the enactment of the Bill.

7.0 Review process
7.1 Although we believe that the amendments we propose in the previous section would help to reduce the need for judicial review of administrative actions, we recognise that a certain amount of judicial review will be inevitable. In order to ensure that all people, particularly poorer and more marginalised individuals, have access to justice, the review mechanism must be as cheap, speedy, and accessible as possible.

7.2 With this in mind, we welcome the provisions in the bill that would empower the Minister of Justice to extend the power of review to magistrate's level or to establish a tribunal system for review of administrative actions. In the interim, however, the Bill relies solely on the high court for review and enforcement. Consequently, we would wish to see further recognition in the Bill of the urgency of establishing a more inexpensive and accessible review mechanism. One way of achieving this might be to require (rather than to permit) the Minister of Justice to investigate more appropriate systems of review and to report to Parliament on the cost and feasibility of various options within a specified period.