SOUTH AFRICAN POLICE SERVICES
Administrative Justice Bill, 1999

The respective drafts of the above Bill have been studied by the South African Police Service. Representatives from the SA Police Service attended various workshops on different drafts hosted by the SA Law Commission, and the one hosted by the Human rights Commission in Cape Town. The Bill was also discussed by the National Intelligence Co-ordinating Committee (NICOC), on which the South African Police Service, the National Intelligence Agency, the South African Secret Service and the South African National Defence Force are represented.

Some of the concerns of the South African Police Service were met with amendments to the initial draft of the Bill.

In view thereof that the contents of the regulations, which may be issued by the Minister of Justice and Constitutional Development is not known, it is impossible to determine the impact of the Bill on police functions.

Depending on the scope of such regulations, the initial concerns might remain valid, The opinion is held that the development of administrative law should, to a large degree, lie with the courts, although the Bill is of course necessary to give effect to the Constitution. Most of the subject matter which gave rise to grave concern on the part of the Police, is now contained in the provisions enabling regulations to be promulgated. In the view of the Police such regulatory enablement should be deleted for the following reasons:

(1) These issues are of a polemic nature and should be subject to parliamentary debate and inquiry;

(2) the common law is in our view comprehensive and fair concerning procedural fairness. To prescribe formalities in this regard, would not in our view enhance administrative justice or good administration (clause 9(1)(a) (d));

(3) the same argument holds true for clause 9(1)(f); and

(4) in our opinion there is no need for an advisory council as envisaged in clause 9(1)(g), nor for the bureaucratic overload which would result. (It might be mentioned that the SAPS is presently revisiting and consolidating all the relevant Standing Orders, National Instructions, etc. This process will take in the vicinity of 5 years. To prescribe sunset clauses for the administration does not augur for good efficiency. The sunset clause applicable to the passing of the Bill in question is probably itself a good case in point.)

The South African Police Service is specifically concerned about the scope and application of the Bill in respect of law enforcement powers.

If prior notification and an absolute application of the audi alteram partem rule is required in respect of all administrative decisions, it could nullify powers such as those related to the cordoning off and search of areas and the application of the Interception and Monitoring Prohibition Act, 1992 (Act No 127 of 1992). In this respect it is suggested that the interrelationship between par (4) and par (5) of clause 4 at least be set out in clearer terms.

Although it is appreciated that the Minister of Justice and Constitutional Development may determine certain exemptions in terms of the application of the Bill, the South African Police Service would prefer that such powers relating to law enforcement, be clearly and specifically excluded from the Bill. This should include the issuing of warrants for arrest, as well as other police powers, e.g. cordoning off where the prior application of notice and audi alteram partem could defeat the object of the administrative action. (Both the issuing of warrants of arrest and directions for interception and monitoring involves, the exercising of administrative discretions, even though exercised by judicial officers.)

An urgent appeal is made to the Committee to ensure that law enforcement is not bogged down by the Bill.

In respect of the grounds of review and the remedies offered in the Bill regarding unjust administrative action, the South African Police Service is of the opinion that it boils down to a codification of the law developed by the courts over the years, and it is supported, subject to the following suggested amendments;

(1) The deletion of the phrase "by the empower provision" in clauses 7(1)(a)(i), 7(1)(a)(ii) and 7(1)(e)(i), as well as the whole of subparagraph (bb) of clause 7(1)(f) (iii) and the whole of clause 7(2)(a). (The reason being that the definition of "empowering provision" not only does not take the matter any further, but also creates uncertainty. Clause 7(1)(a)(i) relates to the gist of the ultra vires doctrine that can clearly be spelled out in plain language as "was not authorised to do it". The scope of the legislative provision is but one aspect thereof. The legislative provision (or even "document" or "agreement") might itself not be authorised.

(2) The phrase in clause 7(1)(a)(iii) "reasonably suspected of bias" should be deleted, as it is unclear who should harbour the reasonably suspicion, and at what stage. It is in our opinion sufficient to have bias as a ground of review, as it has only to be proven on a balance of probabilities and it may be founded on circumstantial evidence alone (if an inference of bias would be the most probable inference in the circumstances).

(3) the term "reason" in clause 7(1)(e)(i) should be substituted with the term "purpose" as it is presently used in the common law. There are subtle differences between the two concepts. In clause 7(1)(f)(iii)(dd) the concept of "reasons" is catered for.

(4) It is suggested that the original wording of section 36 (1) of the Constitution be employed in clause 7(1)(g). The present wording is unclear.

(5) The definition of "law" should include "the prescribed code of conduct", if the latter is to be retained,

It is furthermore clear that the Bill envisages extending the administrative grounds of review to subordinate legislation as well as other legislative acts, even plenary legislative acts. It is uncertain whether this extension has been fully evaluated. The plenary (original) legislative powers of the President are for instance not excluded in clause 1(i). Plenary legislative powers by the President would be assailable in terms of all the grounds of review whereas simple legislative functions by a municipal council not. (The exemption formulated in clause 4(6) must of course also be given beforehand, and must be compatible with the right to procedurally fair administrative action.)

The basic common law grounds of review for subordinate legislation is the ultra vires doctrine, reasonability and vagueness. In our view the extension of administrative principles to legislative acts, and the regulation of difficulties in this regard by way of the mechanisms contained in clause 4(6) and clause 5(4), should be subject to piercing scrutiny and debate.

Thank you for the opportunity to comment on the Bill.

Copies of the inputs made through NICOC are attached. The contents of the documents are supported by the South African Police Service. Concerns relating to intelligence matters are shared by the South African Police Service, in view of its mandate to gather, analyse and use crime intelligence.

It is trusted that these comments might assist the Committee in its work.

NICOC's COMMENTS: ADMINISTRATIVE JUSTICE BILL
1. The Administrative Justice Bill gives effect to section 33 of Constitution. This Bill seeks to achieve the following objectives:
- That action taken by organs of the state, Judicial officers, and other organisations listed in the Bill, are lawful, reasonable and procedurally fair;
- Written reasons have to be given to those adversely affected by administrative action.

2. The Bill has to be enacted by February 2000. If the Bill does not come into operation in February section 33 of the Constitution lapses.
3. The Bill is drafted in such a way that it will apply concurrently with the Open Democracy Bill, which gives effect to access to information.
4. However, the Open Democracy Bill, has a Chapter which expressly and exclusively deals with 'exemptions', - grounds for refusal of access to records, one of which is refusal on the basis of the 'Republic's defence and security, including intelligence matters'. This is not the case with the Administrative Justice Bill.
5. The Bill will when it becomes law, not deny the existence of other rights and freedoms recognised by common law, customary law, international law or legislation.
6. Chapters 4, 5 and 6 are of importance for purposes of our discussion.

Summary of the Bill
1. The definition of "administrative action" is notably wide - it includes not only acts, but also mere decisions. Which practically means that for every mere decision that is taken by an organ of state reasons have to be furnished to the party adversely affected. E.g. denial of security clearance, institution of a127 application/directive.
2. 'Rule' is defined as any measure with a force of law, e.g., regulations, directives, and certain policies which have force of law.
3. Chapter 3 of the Bill, section 4, makes provision for a procedurally fair administrative action, which adversely affects rights, interests and legitimate expectation. A fair procedure in terms of the Bill includes inter alia: adequate notice of the nature of the action, reasonable opportunity to make representations, a clear statement of administrative action and adequate notice of any right of appeal.
4. This may further include access to information subject to limitations laid down in the Open Democracy Bill, and legal representation in complex cases. This means that before a 127 application is put into effect, for purposes of interception of communication or monitoring of conversations, adequate notice has to be given to the party concerned, and that party must be given a reasonable opportunity to respond.
5. Section 5 of the Bill makes provision for public-hearings where the rights of the public are adversely affected. 'Public' in this section means the public generally or any group or class of the public. A 127 application on organised crime will be a classical example of an administrative action against the 'public' in this regard.
6. Section 6 provides for reasons to be furnished in writing within 9O days within which action has taken place. The reasons must state the essential facts and the legal basis for the action.
7. Chapter 6 of the Bill establishes a Council, which may amongst its functions, by way of notice in the Gazette, and in exceptional circumstances, exempt an administrator from the application of sections 4, 5 and 6 of the Bill. This practically means that the Council having exercised its discretion with regard to the nature of a particular administrative action will exempt an administrator from the required procedures envisaged in sections 4, 5 and 6. Of course an administrator may further to this, in exceptional circumstances, depart from the normal procedure envisaged in section 4, 5 and 6.
8. There are no guidelines as to the meaning of exceptional circumstances to warrant deviation from the procedures laid dawn in these sections. The exclusion provided for in respect of these sections are too vague. Rather go for a general exclusion, or make the exceptions listed in the Open Democracy Bill applicable in this regard to avoid confusion. Note: Those exceptions will have to be reviewed for such purpose of course. The worst scenario would be that of an affected party who would challenge an exception published in the Gazette, shortly before that particular administrative action is taken. This will create unnecessary delays in the execution of urgent applications or actions in dealing with criminals.
9. The other problem that arise out of not having express and exclusive exemptions as part of the main Bill, is that there is already uncertainty noted in the footnotes of the Bill with regard to the existence of the Council itself. The Department of Justice is quoted to have raised a concern of the financial implications of establishing a Council. A proposal is made that the Human Rights Commission or the South African Law Commission should be assigned with the responsibility of the Council. The council is at the heart of the existence of the Bill especially in so far as the security services are concerned, as it is the structure that is going to decide whether to exempt the security services from certain procedures stipulated in the Bill or not. This uncertainty is one of the motivations why we need express exemptions for the security services from the application of certain sections of the Bill. One needs a chapter, just like in the Open Democracy Bill dealing with exemptions. Of course it will not only be the security services that will need exemptions, other sectors listed in the Open Democracy Bill will need this kind of relief than to be at the mercy of the Council to decide that which is necessary to warrant an exemption or not.
10. This envisaged Council is mainly Public Service orientated. There is no representative from the security establishments, not even the IG, whereas, the Public Protector, and the Chairperson of the Public Service Commission and the DG of Public Service will be represented.
11. Will these representatives be in a better position to decide, that which is practical in a security environment, with their framework of absolute labour relations and openness
12. Lastly, on the sections of Bill, the State Law Advisor must compile and publish guidelines for drafting of rules and standards.
13. Section 12 provides for publication of these rules, which are likely to impact on anyone. This means that a copy of the TARG policy (127 policy on procedure for interception), the questionnaire for vetting and polygraph tests, for instance, has to be published for notification to those likely to be affected by it. Again in this regard, the council may in exceptional circumstances exempt an administrator from the application of this section. The arguments against the discretion of the Council above still apply here,
14. If the security services are not exempted from the rigid application of certain sections of the Bill, some of the records and rules may be going to be published in the national register.
15. The last issue is the status of classification of documents in the security services. Will the current classifications be maintained or revised in light of the State Law Advisors new responsibilities.

Recommendations
It is therefore recommended that these issues be brought to the attention of all the security Ministers, and a decision taken with regard to the tabling of this Bill before Cabinet on Thursday. Of course the urgent nature of the Bill has to be taken into account, but it will be self destructive to enact a Jaw which will frustrate the objectives of the security services. The Law Commission had an option of publishing a report for comments as promised in their one and last consultation with the departments, but it appears that they opted for a shortcut route of channelling the unpolished draft through the legislative passage.

Options:
To withdraw the Bill from tabling on Thursday, to be tabled at a future date and refer it to the security Ministers and their Ministries for scrutiny; or
To have Cabinet approve in principle, subject to further and thorough consultation with the Security Ministers or all other affected Ministries.
Deadlines for finalisation of the consultation and redrafting process have to be put in place for both options in order not to miss the Constitutional deadline.