CABINET SENDS ADMINISTRATIVE JUSTICE BILL TO PARLIAMENT

Summary

The Cabinet recently approved the Administrative Justice Bill. This requires state officials to provide fair and efficient service to members of the public and will give people who feel they have been mistreated recourse to legal review. The bill is one of the pieces of fundamental legislation that the Constitution requires to be enacted by 4 February 2000. Although the language of the bill is very technical, it should become a valuable tool for fighting arbitrary or unfair action--or inaction--by public officials.

Legislative history

When a law confers powers or imposes obligations on the state, often the responsibility for exercising those powers or fulfilling those duties is delegated to the Minister of the relevant government department. Apartheid-era officials were notorious for using these administrative powers in arbitrary and self-serving ways and for refusing to explain their actions. (Recall, for example, the imposition of banning orders by successive Ministers of Justice.) Even today, state officials continue to deny people's rights or services (pensions, maintenance grants, UIF, asylum, etc.) with little or no explanation. Officials can also act unjustly when they fail to carry out their obligations within a reasonable period.

For more than a decade, the South African Law Commission (SALC) has been considering ways of strengthening the power of the courts to review administrative actions. Although SALC issued several discussion documents early in this period, it was not until the interim Constitution came into effect (1993) that there was a constitutional right to just administrative action. The final constitution refined this right and required Parliament to adopt legislation giving effect to it by 4 February 2000.

Section 33 of the Constitution states:

(1) Everyone has the right to administrative action that is lawful, reasonable and procedurally fair.
(2) Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons.
(3) National legislation must be enacted to give effect to these rights and must--
(a) provide for the review of administrative action by a court or, where appropriate, an independent and impartial tribunal;
(b) impose a duty on the state to give effect to the rights in subsections (1) and (2); and
(c) promote efficient administration.

In 1994, the Ministry of Justice launched a fresh drafting process. The SALC was left out of this process initially, apparently due to concerns that the Commission's previous work on the matter was shaped by apartheid-era imperatives. In late 1997, the SALC began to be drawn back in, culminating in the appointment of an SALC Project Committee in November 1998. At the end of January, the committee released a preliminary draft bill for written comment. This was followed by a series of provincial workshops in mid-1999 to encourage comment on a revised draft. In August, the SALC sent its report and final legislative proposals to the Minister.

Cabinet called for major revisions to the bill, including the removal of a chapter that would have established an Administrative Review Council to consider implementation issues. Cabinet ultimately approved a much shortened bill on 20 October. The final bill is expected to be tabled in Parliament this week.

Important provisions of the bill

Scope of application

One of the key questions is: who will be required to abide by the legislation? The draft bill is intended to apply to "any act performed, decision taken or rule or standard made" by:

• any state or administrative department in the national, provincial, or local spheres of government (including cabinet ministers and deputy ministers, provincial MECs, and all of their departmental staff)
• any person or institution exercising power or performing a function in terms of the national or provincial constitutions or any legislation (including bodies such as the Human Rights Commission and the Public Protector, universities and technikons, provincial Law Societies, and privatised state industries such as Telkom; but excluding the legislative functions of a legislature and certain executive functions of the national and provincial Executives);
• any other individual, company, or organisation exercising a public power or performing a public function (includes private companies contracted to deliver services on behalf of the state and might also include private providers of essential services such as banks) [NOTE: this could include ministers when they perform civil functions--such as when they act as marriage officers.]
• judicial officers (except with respect to their judicial functions)
• prosecuting agencies (except with respect to a decision to prosecute).

Importantly, the legislation also covers actions and decisions which should have been taken by any of these bodies. So people would not only be able to seek remedies for unfair action by the state, they would also be able to challenge the neglect of a duty to act.

Procedural fairness

The draft bill says that any administrative action which harms anyone's rights or interests must be "procedurally fair". What is fair may differ from situation to situation. At a minimum, though, the bill requires that the people who might be hurt by the action be given:

• adequate notice of the proposed action,
• an opportunity to make representations,
• a clear statement of the action taken, and
• notice of any right of appeal.

In cases where the action being considered is likely to have a negative effect on a group of people or the public at large, an administrator must provide an opportunity for comment through a public inquiry, a public notice and comment period, or some equivalent method.

Grounds of review

A court can be asked to review an administrative action and can intervene if it finds that the action was:

• unlawful or unconstitutional
• vague
• not procedurally fair (see above)
• unreasonable or not rationally connected to the purpose for which the action was taken
• taken by a person who is biased, acting in bad faith, adhering too rigidly to a standard or who is not authorised to take the action.

Written reasons

The draft bill requires administrators to give written reasons for their actions to anyone who is negatively affected. If these are not supplied automatically within 90 days of the action, they may be requested.

For more information

For more information, contact the SACC Public Policy Liaison Office. The complete text of the bill and the SALC's Report on Administrative Justice (Project 115) are both available on the Web.