18 November 1999
ADMINISTRATIVE JUSTICE BILL
With reference to the draft Administrative Justice Bill and the call for submissions by Advocate Johnny de Lange, may we make the following comment for consideration of the Committee:
It would appear that, to some extent, the Bill attempts to codify in statute some common law provisions relating to fair administrative action. Of specific concern, however, is the inclusion in the Bill of section 1(a)(iv) - "a natural or juristic person exercising a public power or performing a public function."
- We are unable to identify any current (or future) "natural person....exercising a public power or performing a public function" who would not do so by virtue of some other enabling legislation (if at all). It would therefore seem that the reference to "a natural person" should be deleted.
- Similarly, we believe that any "juristic person exercising a public power or performing a public function" is likely to do so by virtue of specific enabling legislation or delegated power from government or a government organ. The inclusion of a reference to this juristic person in the draft Administrative Justice Bill would therefore seem to create overlapping statutes, with the Bill being deliberately vague on this issue. Recourse for administrative justice or fairness should preferably occur through the specific enabling legislation.
- In a footnote to the 3rd draft of the Bill (dated 21 June 1999) it is noted that while there were requests for the Bill to "define "public power" and "public function" in order to eliminate uncertainty as to their meaning (this) is not considered feasible. The meaning of these terms will be elucidated by the courts when dealing with the Bill and with section 239 of the Constitution". We believe that this is an incorrect approach for a legislature to adopt - the focus of any legislation should be to provide certainty and clarity. The reliance on the courts in this case is therefore a reliance on the common law, and if that is the situation then, we believe, it should be left to the courts without creating vague statutes because that is all that "is feasible".
We believe that the reference in the Bill to "natural or juristic person exercising a public power or performing a public function" should be deleted, for the following reasons:
- any such persons will be acting in terms of very specific enabling legislation and regulation;
- the common law already has a body of decisions relating to this issue, which the drafters of the Bill acknowledge and in fact wish to draw into the ambit of the Bill;
- statutes should provide for certainty and clarity. The concepts of "public power" and "public function" do not lend themselves to this, and this uncertainty is reflected in the section. This, unless deleted, is likely to lead to a lot of unnecessary litigation affecting a wide range of persons.
We thank you for this opportunity to comment on the Bill and we are available to discuss this submission further should that be necessary.