LEGISLATIVE UPDATES
THE PROMOTION OF ADMINISTRATIVE JUSTICE BILL
1. Introduction and Background
The purpose of the Promotion of Administrative Justice Bill is to give effect to the Constitutional directive, Section 33 (1) and (2) that national legislation must be enacted to give effect to the right to administrative action that is lawful, reasonable and procedurally fair. The Constitution expresses a commitment to ideals such as the rule of law and fairness. In the past, executive action was often taken without consideration for justice and fairness.
The Bill represents a legal framework that would enable redress when citizens are disadvantaged by administrative action. The right to administrative justice is about government giving reasons for its actions. It demands that government officials act fairly in their decisions and actions.
2. Administrative Action
Administrative Justice is defined as 'any decision taken, or any failure to take a decision by an organ of the state when exercising a power in terms of the Constitution or any provincial constitution; or exercising public power or performing a public function in terms of any legislation, which adversely affects the rights of any person'.
The definition also applies to actions of persons representing organs of the state are included.
The provisions in the Bill do not extend to the executive powers and functions of:
The National Executive
The Provincial Executive
Municipal Councils
The legislative functions of Parliament, a provincial legislature or a Municipal council
The judicial functions of a judicial officer of a court
Other exclusions:
A decision to institute or continue a prosecution
A decision with regard to the appointment of a judicial officer by the Judicial Service Commission
Any decision taken, or failure to take a decision, in terms of any provision of the Promotion of Access to Information Act, 2000
3. Objectives the Bill
The Bill strives to promote an efficient administration and good governance. An essential element of the Bill is the creation of a culture of accountability, openness and transparency in government. The Bill gives effect to the right to administrative action that is lawful, reasonable and procedurally fair; and ensures the right to written reasons for administrative decisions. In addition, it also provides for the review of administrative justice by a court, or an independent and impartial tribunal.
4. Main Provisions of the Bill
4.1 Review of Administrative Action
The Bill makes provision for the review of administrative action that is procedurally unfair; and the establishment of grounds (reasons) on which courts must review administrative action; as well as the procedures for review and administrative investigations.
4.2 Demand for Written Reasons
It enables the public to demand written reasons to explain specific administrative action to determine whether administrative action is based on correct and fair procedures and rational decision-making.
4.3 procedures for Making Rules
The Bill clarifies the procedure for making rules, i.e., any statement designed to have the force of law, including subordinate legislation, made in terms of an Act of Parliament, or in terms of provincial legislation.
4.4 Procedures for Public Inquiries
In addition, the Bill determines the processes for public consideration (Public Inquiries) of rules; and the approval of rules drafted by organs of the state. In terms of the Bill, Public Inquiries must be held by organs of the state to determine public interest and to consult the public on the consequences of proposed administrative action.
4.5 Establishment of an Advisory Council
The Bill mandates the Minister to make regulations relating to the process and procedures for the establishment of an advisory council; and also determines the duties, powers and functions of the advisory council.
4.6 Code of Conduct
In terms of the Bill, the Minister must make regulations relating to a code of good administrative conduct in order to provide administrators with practical guidelines and information aimed at the promotion of efficient administration.
5. Procedures for the Review of Administrative Action
A request for the review of administrative action may be lodged by any person whose rights have been materially and adversely affected by such administrative action; and who has not been given reasons for the action. The person must request written reasons for such action within a period of 90 days. A judicial review can be requested if the administrator fails to supply written reasons within 90 days after the request is made.
The court or tribunal, in proceedings for judicial review may grant any order that is just and equitable, including:
6. Health Sector interest in the Bill
Our interest in the Bill is based on the need to challenge the current deficiencies in health service delivery. Many citizens, especially in poor communities, experience problems such as inefficiency, inadequate quality of service and violations of their rights at health care facilities. These violations include, among others, waiting the whole day without being seen and then being told to come back the next day. The Bill creates opportunities to implement practical mechanisms to address grievances.
7. Conclusion
The Administrative Justice Bill is a substantive and progressive legal framework within which fundamental changes to the Administrative Justice System can be effected. The Bill will help to eradicate the culture of poor service and lack of consideration for human rights that currently prevails in government.
For further information on the, Promotion of Equality and Prevention of Unfair Discrimination Bill, 2000 please contact Luvuyo Msimango at 021 448 8702, or by fax at 021 447 0624, or by Email: luvuyo@philaw.co.za
The PHILA Programme is supported by a grant from the Henry J Kaiser Family Foundation
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