THE ADMINISTRATIVE JUSTICE BILL, B56-99
M E M O R A N D U M BY THE SOUTH AFRICAN LAW COMMISSION’S PROJECT COMMITTEE ON ADMINISTRATIVE JUSTICE
1. The main differences between the Administrative Justice Bill, B56-99, and the draft Bill prepared by the South African Law Commission ("SALC" and "the draft Bill") are:
1.1 the extension of the range of national executive functions excluded from the definition of "administrative action" and the omission of the exclusion in the draft Bill relating to the Judicial Service Commission;
1.2 the substitution for clause 2 of a clause modelled on the interim Constitution’s right to administrative justice;
1.3 the exclusion of "legitimate expectations" as a condition for procedurally fair administrative action in clause 4;
1.4 the refinement of the clause dealing with the variation of the time periods specified in the Bill (clause 10); and
1.5 the substitution for the chapters dealing with rules and standards and the Administrative Review Council of a provision empowering the Minister to make regulations (clause 11).
THE DEFINITION OF "ADMINISTRATIVE ACTION"
2. The range of Presidential functions excluded from the definition of "administrative action" in clause 1 has been extended to include:
2.1 the making of appointments that the President is required to make, other than as head of the national executive (section 84(2)(e) of the Constitution);
2.2 the appointing of commissions of enquiry (section 84(2)(f) of the Constitution); and
2.3 pardoning or reprieving offenders and remitting any fines, penalties or forfeitures (section 84(2)(j) of the Constitution).
3. These exclusions are consistent with the recent decision of the Constitutional Court in President of the Republic of South Africa and others v South African Rugby Football Union and others 1999 (10) BCLR 1059 (CC) at paragraphs 144-8. Similar exclusions should, therefore, be made in relation to the provincial Premiers, i.e. the reference to "section 127(2)(a), (b), (c), d) and (f)" in paragraph (ii) of the proviso to the definition of "administrative action" should be replaced with a reference to "section 127(2)".
4. In view of the decision in the SARFU case and, in particular, the Constitutional Court’s finding at paragraph 142 that the constitutional responsibility of the President and Cabinet members in the national sphere (and Premiers and members of executive councils in the provincial sphere) to ensure the implementation of legislation is an administrative responsibility which will ordinarily constitute "administrative action" within the meaning of section 33 of the Constitution, the exclusion of section 85(2)(a) of the Constitution ("implementing national legislation" etc) from the definition of "administrative action" in the Bill should be reconsidered. There is also no reason for the blanket exclusion of section 85(2)(e) of the Constitution ("performing any other executive function provided for in the Constitution or in national legislation"). Accordingly, the reference to "section 85(2)" in paragraph (i) of the proviso to the definition of "administrative action" should be replaced with a reference to "section 85(2)(b), (c) and (d)". As it happens, this would bring the treatment of section 85(2) in paragraph (i) of the proviso in line with the treatment of section 125(2) (which deals with the provincial Premiers) in paragraph (ii) thereof.
5. The obligation of members of the Cabinet to act in accordance with the Constitution (section 92(3)(a) of the Constitution) has also been excluded from the definition of "administrative action". It is not clear why this exclusion has been made (it does not derive from the SARFU case). It is also not clear why a similar exclusion has not been made in relation to the provincial Cabinets. Accordingly, the reference to "section 92(3)" in paragraph (i) of the proviso to the definition of "administrative action" should be replaced with a reference to "section 92(3)(b)" (compare the reference to section 133(3)(b) in paragraph (ii) of the proviso).
6. The omission of the exclusion in the draft Bill relating to the Judicial Service Commission points to the difficulty of defining "administrative action" for the purposes of the Act. As the Constitutional Court said in the SARFU case at paragraph 143: "Difficult boundaries may have to be drawn in deciding what should and what should not be characterised as administrative action for the purposes of section 33".
7. The question of the exclusion of the Judicial Service Commission points to a more general difficulty with the breadth of the definition of "administrative action" in the Bill which arises from the judgment in the SARFU case. The Constitutional Court made it clear that certain acts, decisions etc. of certain organs of state are not "administrative action" for the purposes of section 33 of the Constitution. At present, however, the definition of "administrative action" is cast in rigid terms to mean "any act performed, decision taken, rule or standard made, or such act, decision, rule or standard which should have been performed, taken or made, by" organs of state etc, save for the functions expressly excluded by the proviso. As a result, the definition of "administrative action" in the Bill may well be unconstitutional.
8. A practical way of addressing this problem would be to make the definition illustrative rather than exhaustive. The focus could then shift to the margins, i.e. to including "private" administrative action and excluding the matters listed in paragraphs (i) to (v) of the proviso. We suggest a formulation along the following lines:
"’administrative action’ includes any act performed or decision taken, or any act or decision which should have been performed or taken, by a natural or juristic person when exercising a public power or performing a public function, but does not include– etc."
9. It is not clear why the SALC’s restatement in clause 2 of the draft Bill of the rights to administrative justice in section 33(1) and (2) of the Constitution has been replaced with a clause apparently derived from the interim Constitution’s formulation of the right (including the "his and her", instead of the "their" in item 23(2)(b) of Schedule 6 to the Constitution). Unlike section 24 of the interim Constitution, however, the word "adversely" has been added before "affected" and "affects" in paragraphs (a) to (d).
10. Despite the opening phrase of clause 2 ("In accordance with section 33 of the Constitution"), it is doubtful whether clause 2 in its current form is compatible with section 33(3) of the Constitution, which requires national legislation both to give effect to the rights in section 33(1) and (2) and to impose a duty on the state to give effect to those rights (see clause 33(3)(b)).
11. The absence in section 33(1) and (2) of the Constitution of the threshold qualifications of section 24(a) to (d) of the interim Constitution – a somewhat perplexing combination of "rights", "interests", "legitimate expectations" "affected" and "threatened" – and the use in section 33(1) of "reasonable" rather than the "justifiable" of section 24(d), suggest more than a mere change of wording or emphasis. Section 33(1) and (2) have undoubtedly extended the reach of the administrative justice clause. It might also be argued that the substitution of "reasonable" for "justifiable" has resulted in a more exacting standard review of reasoning processes and outcomes.
12. In addition, the inclusion of the word "adversely" in each paragraph of the new clause 2(1) might also give rise to constitutional problems. It is to be noted that whereas the right to reasons in section 33(2) of the Constitution is expressly qualified in this way, the right to lawful, procedurally fair and reasonable administrative action in section 33(1) is not.
13. On a different note, the words "established for that purpose" should be added after "by any independent and impartial tribunal" in clause 2(3)(b). As currently worded the clause seemingly permits all such tribunals to review all administrative action, i.e. confers plenary review powers on all tribunals. This problem originates from the SALCs formulation of this clause in the draft Bill.
14. The SALC’s reference to "legitimate expectations" in clause 4(1) of the draft Bill has been omitted from the corresponding clause in the Bill. It is not clear why this has been done, particularly when one considers the reference to legitimate expectations in clause 2(1)(b) of the Bill.
15. Moreover, the omission of legitimate expectations as a determinant of the right to procedurally fair administrative action is difficult to reconcile with the Constitutional Court’s endorsement in Premier, Mpumalanga and another v Executive Committee, Association of State-Aided Schools, Eastern Transvaal 1999 (2) SA 91 (CC) at paragraphs 32 to 36 of Corbett CJ’s reasons for importing the doctrine into South African law in Administrator, Transvaal and others v Traub and others 1989 (4) SA 731 (A). It is likely that the Constitutional Court will conclude that the right to procedurally fair administrative action applies when the person has a legitimate expectation "of a substantive benefit, or an expectation of a procedural kind" (see the Premier, Mpumalanga case at paragraph 36). This in turn could well lead to constitutional problems for clause 4(1) of the Bill as it is currently worded.
16. Clause 10 of the draft Bill has been altered to make it possible for the period of 90 days referred to in the clause on reasons for administrative action (clause 6) to be reduced by agreement between the parties or, failing agreement, by the courts.
17. Chapters 5 and 6 of the draft Bill dealing with rules and standards and the Administrative Review Council ("the Council") have been replaced with a provision (clause 11) empowering the Minister to make regulations regarding certain of the matters dealt with in those chapters or allocated to the Council elsewhere in the draft Bill.
18. By and large clause 11 of the Bill captures the essence of the matters dealt with the provisions of the draft Bill which have been omitted.
19. The Council has not been totally scrapped either. The Minister may make regulations establishing "an advisory council" to monitor the application of the Administrative Justice Act and to advise the Minister on certain listed matters, all but one of which are derived from the provision in the draft Bill specifying the functions of the Council (clause 15). The exception is clause 11(g)(i), which appears to be a rather awkward summary of the matters dealt with in clauses 13 and 14 of the draft Bill.
20. On the whole, therefore, most of the ideas in Chapters 5 and 6 of the draft Bill have been retained and recast in the form of matters about which the Minister may make regulations.
21. A possible constitutional difficulty with the approach adopted in the Bill is that the Minister has a discretion to make regulations dealing with the matters listed in clause 11, but is not bound to do so. It may be argued, therefore, that the Bill itself does not "provide for" review by an independent and impartial tribunal where appropriate as required by clause 33(3)(a) of the Constitution or "promote" an efficient administration as required by clause 33(3)(c) thereof. The question which then arises is whether the Bill is "national legislation" of the sort envisaged by section 33(3) and, if it is not, what the constitutional implications are. Item 23(3) of Schedule 6 to the Constitution provides that section 33(3) will lapse if the legislation envisaged by it is not enacted within three years of the date when the Constitution took effect.
22. The draft Bill sought to overcome this difficulty by e.g. requiring the State Law Adviser to compile and publish protocols for the drafting of rules and standards (clause 11(a)) and requiring the Council within specified time frames to, amongst other things, formulate and publish a code of good administrative conduct (clause 15(b)(i)) and inquire into the appropriateness of establishing independent and impartial tribunals to review administrative action (clause 15(c)(i)).