SOUTH AFRICAN HUMAN RIGHTS COMMISSION
SUBMISSION ON THE ADMINISTRATIVE JUSTICE BILL
During its four years of existence, the South African Human Rights Commission (SAHRC) has been made aware of the urgent need to address the deficiencies in South African administrative law. The SAHRC has received many complaints, the common factor being the breach of the right to lawful, procedurally fair and reasonable administrative action. Often a violation of this right, in turn leads to a violation of other rights, for example: the discontinuance of social security, housing or health facilities.
The SAHRC is of the view that the Administrative Justice Bill [B56-99] (AJB) must promote:
Section 33 of the Constitution refers to the need for national legislation to be enacted in order to give effect to the right to just administrative action. The SAHRC welcomes the AJB as that legislation which seeks to give meaning to the constitutionally entrenched right, as well as addresses the need for transparent and accountable governance. The SAHRC supports the AJB as a move away from the emphasis on judicial review. The AJB encourages the state to develop guidelines, which inform the administrative branch of government on ways and means of discharging its duties to give effect to the constitutional right. This goes some way to encouraging open and transparent governance, making the system more accessible to the citizens. It also places emphasis on the need to educate both ‘administrators,’ as defined in the AJB, and persons affected by their decisions.
Areas of concern
2.1. Definitions (clause 1)
Clause 1(i) (d) (v)
The SAHRC notes that one of the exclusions from the definition of ‘administrative action’ is ‘a decision to institute or continue a prosecution’. Our understanding is that the exclusion applies only to the decision to institute or continue a prosecution. If the drafters intended a wider understanding of this definition, the SAHRC objects to the wider understanding. To preclude an administrator from giving reasons why she/he has failed to institute a prosecution or to discontinue a prosecution will amount to a profound negative impact on peoples’ rights.
The SAHRC is excluded from the definition of ‘qualified litigant.’ The SAHRC is of the view that it should be afforded locus standi expressly in this section in the following terms:
‘qualified litigant’ means-
(f) the South African Human Rights Commission
The SAHRC should expressly be afforded locus standi in order to address any incidents of systemic abuse of administrative justice and to afford it the right to, in its own name, call administrators to account for administrative actions. The SAHRC is the principal constitutional institution afforded the right to protect human rights as contained in the Constitution.
Clause 1 (ix) (d)
This clause appears to be much broader than the locus standi provisions contained in section 38 of the Constitution. The Constitution qualifies locus standi by referring to people, whose rights have been infringed or threatened. The SAHRC notes that clause 1(ix) (e) is incomplete.
The SAHRC is of the view that clause 1 (ix) should include a section which reads:
(h) A qualified litigant listed in this section has the right to approach a competent court, alleging that a right in this Act has been infringed or threatened.
This would ensure that there is no conflict between this provision and the provision contained in clause 2.
It is regrettable from the SAHRC’s perspective that more clarity on the right to administrative justice was not afforded in this Bill. The SAHRC is concerned that clause 2(1) amounts to a restatement of the right to administrative justice as expressed in the interim Constitution. The SAHRC is of the view that the drafters were afforded a three year period, in terms of the Constitution, to incorporate more specific guidelines to enable both the public and administrators to deal with this area with greater confidence. Reinstating the somewhat complicated provisions of the interim Constitution, to our mind, does not amount to adequately carrying out the intention of the drafters in suspending the operation of section 33 and requesting a comprehensive Act. This has amounted to an Act which is not prospective in its outlook, and invites clarity on its provisions in the courts.
One of the major differences between the interim Constitution and the final Constitution’s definition of administrative action lies in the more generous wording found in the final Constitution. The final Constitution affords everyone the right contained in that section, whereas the interim Constitution created a threshold by limiting the right to persons whose rights, legitimate expectations or interests are affected.
In this way the AJB falls short of its obligations to flesh out section 33 of the Constitution. The SAHRC is of the view that the thresholds contained in clause 2(1) should be removed and that the net should be cast wider to incorporate ‘everyone’ and not only those who are adversely affected. To this end, the SAHRC recommends that clause 2(1) should read as follows:
Every person shall have the right to-
This clause appears to be inconsistent with clause 2(1)(b). Clause 4(1) adds the concept of ‘interest’, whereas clause 2(1)(b) refers to ‘legitimate expectation’. If the drafters intended that the notion of ‘interest’ should apply, then clause 2(1)(b) must be amended. The SAHRC urges the Committee to engage in debate on whether it is prudent to have any person who has an ‘interest’ in the matter as opposed having a right or ‘legitimate expectation’ to be afforded procedural fairness by the administrator.
Clause 4(2) (c)
The SAHRC is of the view that this clause should read as follows:
(c) a clear statement explaining the administrative action
This will aid clarity to this provision.
The SAHRC is of the view that this clause will be clearer in its application, if it were to read, as follows:
(d) adequate notice of any right of appeal or review and the manner in which to access such appeal or review
The SAHRC is concerned that clause 4(4) is too vague and open ended to afford much protection to persons affected by administrative action. In terms of clause 4(4):
‘If circumstances justify it, an administrator may depart from the requirements referred to in subsection (2), to the extent necessary.’
This unfettered discretion should be bound in terms similar to those that apply to the Minister in clause 4(6). The SAHRC is of the view that clause 4(4) should read as follows:
‘If circumstances justify it, an administrator may depart from the requirements referred to in subsection (2), to the extent necessary. Such exemption must be compatible with the right to procedurally fair administrative action.’
The following should be added to the clause in order to give it more clarity:
(a) take appropriate steps to communicate the proposed administrative action to those likely to be adversely affected by it and call for comments from them;
The following should be added to the clause in order to give it more clarity:
(d) comply with the rules regulating the procedure to be followed in connection with notice and comment procedures, as may be prescribed and communicate publicly the reasons for adopting the administrative action.
As with clause 4(4), referred to above, the SAHRC is concerned that clause 5(4) is too vague and open ended to afford much protection. In terms of clause 5(4):
‘If circumstances justify it, an administrator may depart from the requirements referred to in subsections (1) to (3), to the extent necessary.’
This discretion should be bound in terms similar to those that apply to the Minister in clause 4(6). The SAHRC is of the view that clause 5(4) should read as follows:
‘If circumstances justify it, an administrator may depart from the requirements referred to in subsections (1) to (3), to the extent necessary. Such exemption must be compatible with the right to procedurally fair administrative action.’
Clause 6(1) refers to a ‘person whose rights are adversely affected.’ Clause 2(1)(c) refers to ‘rights or interests’ which are adversely affected. The SAHRC draws the Committee’s attention to this inconsistency and proposes that ‘rights or interests’ be incorporated into clause 6(1).
As with clauses 4(4) and 5(4) referred to above, the SAHRC submits that clause 6(4) should import a similar caveat bounding the administrator’s discretion. This caveat is reflected in clause 6(6) in respect of the Minister. The SAHRC is of the view that clause 6(4) should read as follows:
‘If circumstances justify it, an administrator may depart from the requirements referred to in subsection (2), to the extent necessary. Such exemption must be compatible with the right of persons adversely affected by administrative action to be given written reasons for that administrative action.
Clause 7(1)(g) is unclear with regard to whether it applies to both decisions and rules made by the Ministers. Administrative actions are divided into rules and decisions. It is clear that both decisions and rules should be covered by the AJB. What is unclear is whether the term ‘the effect of the action’ refers to the implementation of the rule as well as the decision. It is unclear whether clause 7(1)(g) applies to both decisions and rules.
Administrative action has been defined to include rules and decisions. The question which arises is, what is the standard of review for both rules and decisions? There is an important overlap. One view holds that rules should not be subject to exacting scrutiny in terms of reasonableness. Another view is that the term ‘effect’ should be read widely to include both the direct and indirect consequences of an action.
Clause 8(2) refers to rules, which must be made within one year after the date of the commencement of the Act. The current rules are cumbersome and no procedure exists in the Magistrates Court. The SAHRC draws the Committee’s attention to this concern, when applying its mind to this provision.
The SAHRC is of the view that, in order to give full meaning to the AJB, the Regulations must contain detailed instructions to administrators and persons affected by their administrative actions. It is essential that the civil service be instructed to put codes, guidelines and policies in place in order to give effect to section 33(3)(c) of the Constitution. Section 33(3)(c) of the Constitution mandates that the AJB ‘promote an efficient administration.’ This can only be achieved by translating the legislation into an instrument which promotes good practice.
There is an urgent need to promote public awareness in respect of just administrative action, and the SAHRC further supports the regulations insofar as they recognise this need.
The SAHRC is of the view that the Minister should be given strict time frames within which to enact these regulations in order to ensure that clarity regarding rules and standards is expedited.
The Minister should be compelled to set up the advisory council and should not be afforded a discretion in this regard. This will go some way to addressing section 33(3)(c) of the Constitution.