DEPARTMENT OF WATER AFFAIRS AND FORESTRY
ADMINISTRATIVE JUSTICE BILL, 1999
1. My office and the office of the Minister received your joint two letters, addressed to my Minister, Mr Ronnie Kasrils, MP and me, with regard to the above subject on 1 November 1999. I wish to thank you both, on behalf of my Department and my Minister, for affording us an opportunity to comment on the Administrative Justice Bill before it is enacted into law. My Minister has asked me to send his thanks and appreciation for the opportunity to and to send you comments, both on behalf of himself and my Department.
2. I agree that the Bill has ‘’far-reaching and drastic implications for the functioning of all government departments’’. It is also, in many respects, revolutionary to the jurisprudence of South Africa to the extent that it introduces, for the first time in our history, the written law of administrative procedure. For these reasons my Department welcomes the opportunity to provide comments with open arms, not only because of the drastic nature of the Bill, but, more importantly, because of the enormous contribution that the Bill makes in the consolidation of our nascent democracy.
3. In providing comments in the paragraphs that follow I note with interest that the Bill underwent many fundamental changes to reach the state in which it is. My Department was represented at a workshop where some of its earlier provisions were debated. I must say that it was initially very drastic and would have been indeed more difficult to implement than it is now.
Compliance with the constitutional mandate (section 33(3))
4. In my view the Bill does not do anything more than what the Constitution demands of Parliament in terms of section 33(3). What is not clear from the reading of the Bill, though, is the extent, if at all, to which the Bill complies with the mandate contained in section 33(3) – paragraph c. Paragraph c provides that in addition to the other purposes for which the legislation must be enacted, the legislation must also ‘’promote efficient administration’’. It is not clear whether the Bill deals with this purpose at all, and if it does, how it seeks to achieve ‘’efficient administration’’. There seems to be an underlying assumption that by merely giving effect to the right of administrative action, the right to written reasons, by imposing a duty on administrators to give effect to these rights, by establishing administrative procedures and by providing for review of administrative actions, efficient administration will automatically be promoted. This may be correct but, in my view, falls short of what the constitution demands of Parliament. The Constitution (section 33(3)c), in my humble submission demands of Parliament to promote such efficient administration by direct legislative enactment. One expects to find a provision(s) in the Bill that deals with this aspect. What clause 6(6)(b) of the Bill does is that it envisages a clash between the right to be given written reasons and the need to promote efficient administration. I do not think such fears are warranted. The contribution that I am making here is merely meant to give the committees food for thought.
Contents of the Bill
5. The Bill is a confirmation and a consolidation of common law principles of legality, the principles of common law of administrative law that have been developed by the courts over many years and recent judgements emanating from the interpretation of the Constitution. It is progressive in the sense that whilst government departments have had constitutional responsibilities to give effect to the rights it contains as far back as 27 April 1994, the Bill clearly articulates what administrative action is, what the rights are, under what circumstances the administrative actions can be reviewed, what forum has the power of review and what the grounds are. Certainly the constitutional right to be given written reasons for administrative action that adversely affects one’s rights is a new right in our jurisprudence and must be welcome.
6. There are certainly many institutions and government departments that are already giving effect to some of the rights contained in the Bill. One therefore welcomes, with appreciation, the flexibility that the Bill brings about by recognising alternative procedures that already exist, are being followed and that are giving effect to the rights in the Bill. See for example, clause 6(5) chapter 11 of the National Water Act, 1998 (Act No. 36 of 1998) regulates the procedure that must be followed when the Minister wants to, amongst others, construct and operate government waterworks. The Minister has to satisfy certain procedural requirements which include a duty to obtain an environmental impact assessment and the duty to invite the public for comment. This specialised procedure is recognised and given effect to by the Bill. My Department does not have to abandon it but may go ahead with it, now only to comply with the National Water Act but the Bill as well. So we do not have to re-invent the wheel in order to comply with the Act.
7. Clause 5 also gives an administrator a choice on what method of consultation to follow before performing an administrative action that adversely affects the public. In this regard an administrator or government department may choose the method that is easy to follow and which does not affect its resources unnecessarily adversely. This clause should be welcome. Clause 5(4) also provides for a situation where necessity may demand that the procedures for consultation be dispensed with. The clause leaves it up to the court to decide whether such necessity has arisen in the particular circumstances of each case. This must be welcome as well.
8. In my view the Bill does not seriously demand additional staff compliment to government departments. What is very important is that managers and people empowered to take decisions in terms of delegated powers be familiar with the requirements of the Bill and what their responsibilities are. They must be lead agents in the implementation of the Bill and therefore the promotion of the rights that it provides. For this reason it may be necessary that the coming into effect of the Bill be delayed in order to give departments enough time to train relevant staff.
9. I believe that it will be unreasonable to expect administrators to provide written reasons in every case free of charge. Whilst some persons may be unable to pay it does make sense that those who can pay must not be obliged to pay the cost price in order to them to receive written reasons (documents) for administrative actions taken particularly where there is no relationship of employer-employee between the administrator and the person affected by the administrative action.
10. Lastly, I wish to state that my Department supports the Bill and will do everything in its power to ensure its success.
DIRECTOR-GENERAL: DEPARTMENT OF WATER AFFAIRS AND FORESTRY
DATE: FRIDAY 19 NOVEMBER 1999