MEDIA STATEMENT BY THE SOUTH AFRICAN LAW COMMISSION CONCERNING ITS INVESTIGATION INTO ADMINISTRATIVE LAW (PROJECT 115)

The Working Committee of the Commission has approved the publication of Discussion Paper 81 for general information and comment. The paper relates to the Commission's investigation into the adoption of an Administrative Justice Act, to give effect to the provisions of section 33 of the Constitution of 1996.

The project is an urgent one. The Constitution requires an Administrative Justice Act to be in place before 4 February 2000.

The Discussion Paper contains the following main recommendations:

• The key concept "administrative action" in the draft Bill determines its application. The intention is a wide application to public powers. The only proposed exclusions are the actions of Parliament and the provincial legislatures and the local government functions listed in section 160(2) of the Constitution, namely the passing of by-laws, the approval of budgets, the imposition of rates and taxes and the raising of loans. Administrative action by natural or juristic persons contemplated in section 8(2) of the Constitution and exercising a public power or performing a public function (e.g. non-statutory bodies controlling national sports codes), is included. On what follows natural and juristic persons of this sort will be referred to as section 8(2) persons".
• It is recommended that the Bill applies to all "organs of state" and to all section 8(2) persons, and that its provisions prevail over the provisions of any other law other than the Constitution and any provincial Constitution.
• The imposition of a duty on all organs of state to give effect to the rights in section 33(1) and (2) of the Constitution and provision for the review of administrative action by the courts, are recommended.
• It is recommended that the Magistrates' Courts power of review be extended. Until now, that power has been the preserve of the High Courts.
• The Bill sets out the grounds on which a court may review administrative action and the procedure for written reasons for administrative action. It tries to do so in wide and plain terms. It deals with the authorisation of the organ of state or section 8(2) person to take administrative action, the procedure followed, the reasoning process leading to the administrative action and the lawfulness, attributes and impact of the administrative action itself.
• Consecutive periods of 90 days during which a person adversely affected by administrative action may apply or written reasons and the duty of an organ of state or section 8(2) person to furnish those reasons are recommended as well as remedies for non-compliance with the duty to funrish reasons.
• A period of 90 days during which proceedings for review must be instituted is recommended and provision is made for the adoption and implementation of new rules for applications for review.
• Courts in proceedings for review are required to grant appropriate relief, and provision is made for an "openlist" of the remedies in proceedings for review, the aim of which is to structure the way in which reviewing courts approach the question of remedies.
• The parties are allowed (by agreement) and the courts (on application) to extend the 90-day periods during which reasons must be sought and supplied and proceedings for review may be instituted.
• The Bill provides procedures in terms of which organs of state make "rules" and "standards". "Rules" are defined to mean statements designed to have the force of law, and include subordinate legislation. "Standards" are defined to mean norms, guidelines, policies, general instructions or other similar statements about the way in which a public power or public function should be interpreted or exercised or performed.
• Provision is made for two types of registers of rules and standards, namely registers to be held and kept up to date by all organs of state regarding the rules and standards under their aegis and a central register to be held and kept up to date by the Administrative Review Council. The aim of these registers is to improve access to the many rules and standards made and administered by organs of state.
• The establishment of a Central Drafting Office within the Department of Justice is recommended, the main task of which will be to consider and approve the text of rules (but not standards) which organs of state intend making, to complie and establish protocols for the drafting of rules and standards and, in conjunction with the Administrative Review Council, to provide training to the drafters of rules and standards. The aim of these provisions is to improve and standardise the drafting of rules and standards.
• A notice-and-comment procedure for the making of rules which impose material burdens or disadvantages or confer material benefits on any person or group is laid down. Departures from the prescribed procedure are permitted in emergencies.
• Provision is made for the publication in newspapers of a concise description of the contents of a rule and a statement of the reasons for it.
• The Bill is designed to ensure that published rules and standards are up to date and hence, it contains two "sursetting provisions". The first provides for the automatic lapsing of all rules and standards in force on the date of commencement of the draft Bill five years after that date. The second compels all organs of state periodically to review the rules and standards under their aegis by providing that all rules and standards made after the commencement of the draft Bill will be valid for at most 10 years and must reflect the date on which they will lapse.
• Two special administrative procedures, namely public enquiries and administrative investigations are recommended. In terms of the Bill, public enquiries must be held by organs of state or section 8(2) persons which intend to take administrative action the object of which is to determine a matter of wide public interest and consequences and in respect of which they have a wide discretion. Administrative investigations must be held whenever and organ of state is required to take administrative action the object of which is to determine the status, rights or duties of a person. An investigation need not to be formal, but the organ of state or section 8(2) person must afford the person concerned proper notice and a proper opportunity to be heard. The reasons for the administratie action and detailss of any right of appeal and of the right to apply for review must also be given.
• The establishment of the Administrative Review Council is recommended. The composition of the Council is recommended as follows, namely a Chairperson nominated by the Chief Justice officials in the Department of Justice and Department for Public Service and Administration nominated by the relevant Ministers; the Public Protector or a member of his or her staff; and between three and nine other persons appointed by the President, after consulation with the National Council of Provinces.
• The functions of the Council are recommended as follows, namely:

+ to investigate and report on review of administrative action and any improvements in the law, rules and standards for administrative action that might be made to ensure that it is efficient and conforms to the Constitution;

+ to investigate the viability of independent review tribunals and the efficacy of administrative appeals, including the prossibility of specialised administrative appeals tribunals; and

+ to initiate, conduct and co-ordinate programmes for educating the public at large and the members and employees of organs of state or section 8(2) persons regarding the contents of the Bill and the provisions of the Constitution relevant to administrative action.

• Consequential matters arisinng from the establishment of the council are also dealt with, such as the meetings, committees and staff of the Council, the engagement of persons to perform services in specific areas, and expenditure and reporting by the Council.

The Commission invites the comments of all parties who feel that they have an interest in the topic. Individuals, organisations and institutions should participate in this debate and are invited to indicate what their concerns are and what solutions they are able to propose. Based on the outcome of these comments and discussions, a report containing the Commission's final recommendations and an amendment Bill will be prepared and presented to the Minister of Justice. Written comments or suggestions must reach the Commission by 31 March 1999 at the address given below.

Correspondence should be addressed to:

The Secretary
South African Law Commission
Private Bag X668
PRETORIA
0001

e-mail: pvwyk@salawcom.org.za

Fax: (012) 320 0936

Requests for hard copies of the discussion paper telephone:
(012) 322-6440 (Mr J Kabini) E-mail: pkotze@salawcom.org.za

The discussion paper will be made available on the Internet at the following site:
http://www.law.wits.ac.za/salc/discussn/discussn.htm

ISSUED BY THE SECRETARY, SA LAW COMMISSION, PRETORIA

DATE: 4 FEBRUARY 1999

CONTACT FOR ENQUIRIES IN RESPECT OF MEDIA STATEMENT: MR P A VAN WYK
(012) 322 6440