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Marius Scheepers & Company Attorneys |
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Promotions of
Administrative Justice act, 3 of 2002 Promotions of Administrative Justice
Amendment act, 53 of 2002 (updated 01/03)
[ASSENTED TO 3 FEBRUARY
2000] [DATE OF COMMENCEMENT:
30 NOVEMBER 2000] (Unless otherwise indicated) (English text signed by
the President) as amended by Judicial Matters
Amendment Act 42 of 2001 Regulations undet this
Act REGULATIONS
ON FAIR ADMINISTRATIVE PROCEDURES
ACT
To give effect to the
right to administrative action that is lawful, reasonable and procedurally
fair and to the right to written reasons for administrative action as contemplated
in section 33 of the Constitution of the Republic of South Africa, 1996; and
to provide for matters incidental thereto. Preamble
WHEREAS section 33 (1)
and (2) of the Constitution provides that everyone has the right to
administrative action that is lawful, reasonable and procedurally fair and
that everyone whose rights have been adversely affected by administrative
action has the right to be given written reasons; AND WHEREAS section 33
(3) of the Constitution requires national legislation to be enacted to give
effect to those rights, and to- ·
provide for the
review of administrative action by a court or, where appropriate, an
independent and impartial tribunal; ·
impose a duty on the
state to give effect to those rights; and ·
promote an efficient
administration; AND WHEREAS item 23 of
Schedule 6 to the Constitution provides that the national legislation
envisaged in section 33 (3) must be enacted within three years of the date on
which the Constitution took effect; AND
IN ORDER TO-
·
promote an efficient administration
and good governance; and ·
create a culture of
accountability, openness and transparency in the public administration or in
the exercise of a public power or the performance of a public function, by
giving effect to the right to just administrative action, BE IT THEREFORE ENACTED
by the Parliament of the Republic of South Africa, as follows:- 1 Definitions In this Act, unless
the context indicates otherwise- ‘administrative action’
means any decision taken, or any failure to take a decision, by- (a) an organ of state, when- (i) exercising a power in terms of the Constitution or a provincial
constitution; or (ii) exercising a public power or performing a public function in
terms of any legislation; or (b) a natural or juristic person, other than an organ of state, when
exercising a public power or performing a public function in terms of an
empowering provision, which
adversely affects the rights of any person and which has a direct, external
legal effect, but does not include- (aa) the executive powers or functions of the
National Executive, including the powers or functions referred to in sections
79 (1) and (4), 84 (2) (a), (b), (c), (d), (f), (g), (h), (i) and (k), 85 (2)
(b), (c), (d) and (e), 91 (2), (3), (4) and (5), 92 (3), 93, 97, 98, 99 and
100 of the Constitution; (bb) the executive powers or functions of the
Provincial Executive, including the powers or functions referred to in
sections 121 (1) and (2), 125 (2) (d), (e) and (f), 126, 127 (2), 132 (2),
133 (3) (b), 137, 138, 139 and 145 (1) of the Constitution; (cc) the executive powers or functions of a
municipal council; (dd) the legislative functions of Parliament,
a provincial legislature or a municipal council; (ee) the judicial functions of a judicial
officer of a court referred to in section 166 of the Constitution or of a
Special Tribunal established under section 2 of the Special Investigating
Units and Special Tribunals Act, 1996 (Act 74 of 1996), and the judicial
functions of a traditional leader under customary law or any other law; (ff) a decision to institute or continue a
prosecution; (gg) a decision relating to any aspect
regarding the appointment of a judicial officer, by the Judicial Service
Commission; (hh) any decision taken, or failure to take a
decision, in terms of any provision of the Promotion of Access to Information
Act, 2000; or (ii) any decision taken, or failure to take a decision, in terms of
section 4 (1); ‘administrator’ means an
organ of state or any natural or juristic person taking administrative action; ‘Constitution’ means the Constitution of the Republic of South Africa,
1996; ‘court’ means- (a) the Constitutional Court acting in terms of section 167 (6) (a) of
the Constitution; or (b) (i) a High Court or another court of similar status; or (ii) a Magistrate’s Court, either generally or in respect of a
specified class of administrative actions, designated by the Minister by
notice in the Gazette and presided over by a magistrate designated in writing
by the Minister after consultation with the Magistrates Commission, within
whose area of jurisdiction the administrative action occurred or the
administrator has his or her or its principal place of administration or the
party whose rights have been affected is domiciled or ordinarily resident or
the adverse effect of the administrative action was, is or will be
experienced; ‘decision’ means any
decision of an administrative nature made, proposed to be made, or required
to be made, as the case may be, under an empowering provision, including a
decision relating to- (a) making, suspending, revoking or refusing to make an order, award
or determination; (b) giving, suspending, revoking or refusing to give a certificate,
direction, approval, consent or permission; (c) issuing, suspending, revoking or refusing to issue a licence,
authority or other instrument; (d) imposing a condition or restriction; (e) making a declaration, demand or requirement; (f) retaining, or refusing to deliver up, an article; or (g) doing or refusing to do any other act or thing of an
administrative nature, and a reference to a failure to take a decision must
be construed accordingly; ‘empowering provision’
means a law, a rule of common law, customary law, or an agreement, instrument
or other document in terms of which an administrative action was purportedly
taken; ‘failure’, in relation
to the taking of a decision, includes a refusal to take the decision; ‘Minister’ means the Cabinet member responsible for the administration
of justice; ‘organ of state’ bears the meaning assigned to it in section 239 of
the Constitution; ‘prescribed’ means prescribed by regulation made under section 10; ‘public’, for the purposes of section 4, includes any group or class
of the public; ‘this Act’ includes the regulations; and ‘tribunal’ means any independent
and impartial tribunal established by national legislation for the purpose of
judicially reviewing an administrative action in terms of this Act. 2 Application of Act (1) The Minister may, by notice in the Gazette- (a) if it is reasonable and justifiable in the circumstances, exempt
an administrative action or a group or class of administrative actions from
the application of any of the provisions of section 3, 4 or 5; or (b) in order to promote an efficient administration and if it is
reasonable and justifiable in the circumstances, permit an administrator to
vary any of the requirements referred to in section 3 (2), 4 (1) (a) to (e),
(2) and (3) or 5 (2), in a manner specified in the notice. (2) Any exemption or permission granted in terms of subsection (1)
must, before publication in the Gazette, be approved by Parliament. 3 Procedurally fair administrative action affecting any person (1) Administrative action which materially and adversely affects the
rights or legitimate expectations of any person must be procedurally fair. (2) (a) A fair administrative procedure depends on the circumstances
of each case. (b) In order to give effect to the right to procedurally fair
administrative action, an administrator, subject to subsection (4), must give
a person referred to in subsection (1)- (i) adequate notice of the nature and
purpose of the proposed administrative action;
[Sub-para.
(i), previously para. (a), renumbered by s. 46 of Act 42 of 2001.] (ii) a reasonable opportunity to make
representations;
[Sub-para.
(ii), previously para. (b), renumbered by s. 46 of Act 42 of 2001.] (iii) a clear statement of the administrative
action;
[Sub-para.
(iii), previously para. (c), renumbered by s. 46 of Act 42 of 2001.] (iv) adequate notice of any right of review
or internal appeal, where applicable; and
[Sub-para.
(iv), previously para. (d), renumbered by s. 46 of Act 42 of 2001.] (v) adequate notice of the right to
request reasons in terms of section 5.
[Sub-para.
(v), previously para. (e), renumbered by s. 46 of Act 42 of 2001.] (3) In order to give effect to the right to procedurally fair
administrative action, an administrator may, in his or her or its discretion,
also give a person referred to in subsection (1) an opportunity to- (a) obtain assistance and, in serious or complex cases, legal
representation; (b) present and dispute information and arguments; and (c) appear in person. (4) (a) If it is reasonable and justifiable in the circumstances, an
administrator may depart from any of the requirements referred to in
subsection (2). (b) In determining
whether a departure as contemplated in paragraph (a) is reasonable and
justifiable, an administrator must take into account all relevant factors,
including- (i) the objects of the empowering provision; (ii) the nature and purpose of, and the need to take, the
administrative action; (iii) the likely effect of the administrative
action; (iv) the urgency of taking the administrative action or the urgency of
the matter; and (v) the need to promote an efficient administration and good
governance. (5) Where an administrator is empowered by any empowering provision to
follow a procedure which is fair but different from the provisions of
subsection (2), the administrator may act in accordance with that different
procedure. 4 Administrative action affecting public (1) In cases where an administrative action materially and adversely
affects the rights of the public, an administrator, in order to give effect
to the right to procedurally fair administrative action, must decide whether- (a) to hold a public inquiry in terms of subsection (2); (b) to follow a notice and comment procedure in terms of subsection
(3); (c) to follow the procedures in both subsections (2) and (3); (d) where the administrator is empowered by any empowering provision
to follow a procedure which is fair but different, to follow that procedure;
or (e) to follow another appropriate procedure which gives effect to
section 3. (2) If an administrator decides to hold a public inquiry- (a) the administrator must conduct the public inquiry or appoint a
suitably qualified person or panel of persons to do so; and (b) the administrator or the person or panel referred to in paragraph
(a) must- (i) determine the procedure for the public inquiry, which must- (aa) include a public hearing; and (bb) comply with the procedures to be followed in connection with
public inquiries, as prescribed; (ii) conduct the inquiry in accordance with that procedure; (iii) compile a written report on the inquiry and
give reasons for any administrative action taken or recommended; and (iv) as soon as possible thereafter- (aa) publish
in English and in at least one of the other official languages in the Gazette
or relevant provincial Gazette a notice containing a concise summary of any
report and the particulars of the places and times at which the report may be
inspected and copied; and (bb) convey by such other means of communication which the
administrator considers effective, the information referred to in item (a) to
the public concerned. (3) If an administrator decides to follow a notice and comment
procedure, the administrator must- (a) take appropriate steps to communicate the administrative action to
those likely to be materially and adversely affected by it and call for
comments from them; (b) consider any comments received; (c) decide whether or not to take the administrative action, with or
without changes; and (d) comply with the procedures to be followed in connection with
notice and comment procedures, as prescribed. (4) (a) If it is reasonable and justifiable in the circumstances, an
administrator may depart from the requirements referred to in subsections (1)
(a) to (e), (2) and (3). (b)
In determining whether a departure as contemplated in paragraph (a) is
reasonable and justifiable, an administrator must take into account all
relevant factors, including- (i) the objects of the empowering
provision; (ii) the
nature and purpose of, and the need to take, the administrative action; (iii) the likely effect of the administrative
action; (iv) the
urgency of taking the administrative action or the urgency of the matter; and (v) the
need to promote an efficient administration and good governance. [Date of commencement of
s. 4: 31 July 2002.] 5 Reasons for administrative action (1) Any person whose rights have been materially and adversely
affected by administrative action and who has not been given reasons for the
action may, within 90 days after the date on which that person became aware
of the action or might reasonably have been expected to have become aware of
the action, request that the administrator concerned furnish written reasons
for the action. (2) The administrator to whom the request is made must, within 90 days
after receiving the request, give that person adequate reasons in writing for
the administrative action. (3) If an administrator fails to furnish adequate reasons for an
administrative action it must, subject to subsection (4) and in the absence
of proof to the contrary, be presumed in any proceedings for judicial review
that the administrative action was taken without good reason. (4) (a) An administrator may depart from the requirement to furnish
adequate reasons if it is reasonable and justifiable in the circumstances,
and must forthwith inform the person making the request of such departure. (b) In determining
whether a departure as contemplated in paragraph (a) is reasonable and
justifiable, an administrator must take into account all relevant factors,
including- (i) the objects of the empowering provision; (ii) the nature, purpose and likely effect of the administrative
action concerned; (iii) the nature and the extent of the departure; (iv) the relation between the departure and its purpose; (v) the importance of the purpose of the departure; and (vi) the need to promote an efficient administration and good
governance. (5) Where an administrator is empowered by any empowering provision to
follow a procedure which is fair but different from the provisions of
subsection (2), the administrator may act in accordance with that different
procedure. (6) (a) In order to promote an efficient administration, the Minister
may, at the request of an administrator, by notice in the Gazette publish a
list specifying any administrative action or a group or class of
administrative actions in respect of which the administrator concerned will
automatically furnish reasons to a person whose rights are adversely affected
by such actions, without such person having to request reasons in terms of
this section. (b) The Minister
must, within 14 days after the receipt of a request referred to in paragraph
(a) and at the cost of the relevant administrator, publish such list, as
contemplated in that paragraph. 6 Judicial review of administrative action (1) Any person may institute proceedings in a court or a tribunal for
the judicial review of an administrative action. (2) A court or tribunal has the power to judicially review an
administrative action if- (a) the administrator who took it- (i) was not authorised to do so by the empowering provision; (ii) acted under a delegation of power which was not authorised by the
empowering provision; or (iii) was biased or reasonably suspected of bias; (b) a mandatory and material procedure or condition prescribed by an empowering
provision was not complied with; (c) the action was procedurally unfair; (d) the action was materially influenced by an error of law; (e) the action was taken- (i) for a reason not authorised by the empowering provision; (ii) for an ulterior purpose or motive; (iii) because irrelevant considerations were taken
into account or relevant considerations were not considered; (iv) because of the unauthorised or unwarranted dictates of another
person or body; (v) in bad faith; or (vi) arbitrarily or capriciously; (f) the action itself- (i) contravenes a law or is not authorised by the empowering
provision; or (ii) is not rationally connected to- (aa) the purpose for which it was taken; (bb) the purpose of the empowering provision; (cc) the information before the administrator; or (dd) the reasons given for it by the administrator; (g) the action concerned consists of a failure to take a decision; (h) the exercise of the power or the performance of the function
authorised by the empowering provision, in pursuance of which the
administrative action was purportedly taken, is so unreasonable that no
reasonable person could have so exercised the power or performed the
function; or (i) the action is otherwise unconstitutional or unlawful. (3) If any person relies on the ground of review referred to in
subsection (2) (g), he or she may in respect of a failure to take a decision,
where- (a) (i) an
administrator has a duty to take a decision; (ii) there
is no law that prescribes a period within which the administrator is required
to take that decision; and (iii) the administrator has failed to take
that decision, institute
proceedings in a court or tribunal for judicial review of the failure to take
the decision on the ground that there has been unreasonable delay in taking
the decision; or (b) (i) an administrator has a duty to take a
decision; (ii) a
law prescribes a period within which the administrator is required to take
that decision; and (iii) the
administrator has failed to take that decision before the expiration of that
period, institute
proceedings in a court or tribunal for judicial review of the failure to take
the decision within that period on the ground that the administrator has a
duty to take the decision notwithstanding the expiration of that period. 7 Procedure for judicial review (1) Any proceedings for judicial review in terms of section 6 (1) must
be instituted without unreasonable delay and not later than 180 days after
the date- (a) subject to subsection (2) (c), on which any proceedings instituted
in terms of internal remedies as contemplated in subsection (2) (a) have been
concluded; or (b) where no such remedies exist, on which the person concerned was
informed of the administrative action, became aware of the action and the
reasons for it or might reasonably have been expected to have become aware of
the action and the reasons. (2) (a) Subject to paragraph (c), no court or tribunal shall review an
administrative action in terms of this Act unless any internal remedy
provided for in any other law has first been exhausted. (b) Subject to
paragraph (c), a court or tribunal must, if it is not satisfied that any
internal remedy referred to in paragraph (a) has been exhausted, direct that
the person concerned must first exhaust such remedy before instituting
proceedings in a court or tribunal for judicial review in terms of this Act. (c) A court or tribunal may, in exceptional circumstances and on
application by the person concerned, exempt such person from the obligation
to exhaust any internal remedy if the court or tribunal deems it in the
interest of justice. (3) The Rules Board for Courts of Law established by section 2 of the
Rules Board for Courts of Law Act, 1985 (Act 107 of 1985), must within one
year after the date of commencement of this Act, make and implement rules of
procedure for judicial review. (4) Before the implementation of the rules of procedure referred to in
subsection (3), all proceedings for judicial review must be instituted in a
High Court or the Constitutional Court. (5) Any rule made under subsection (3) must, before publication in the
Gazette, be approved by Parliament. 8 Remedies in proceedings for judicial review (1) The court or tribunal, in proceedings for judicial review in terms
of section 6 (1), may grant any order that is just and equitable, including
orders- (a) directing the administrator- (i) to give reasons; or (ii) to act in the manner the court or tribunal requires; (b) prohibiting the administrator from acting in a particular manner; (c) setting aside the administrative action and- (i) remitting the matter for reconsideration by the administrator,
with or without directions; or (ii) in exceptional cases- (aa) substituting or varying the administrative action or
correcting a defect resulting from the administrative action; or (bb) directing the administrator or any other party to the
proceedings to pay compensation; (d) declaring the rights of the parties in respect of any matter to
which the administrative action relates; (e) granting a temporary interdict or other temporary relief; or (f) as to costs. (2) The court or tribunal, in proceedings for judicial review in terms
of section 6 (3), may grant any order that is just and equitable, including
orders- (a) directing the taking of the decision; (b) declaring the rights of the parties in relation to the taking of
the decision; (c) directing any of the parties to do, or to refrain from doing, any
act or thing the doing, or the refraining from the doing, of which the court
or tribunal considers necessary to do justice between the parties; or (d) as to costs. 9 Variation of time (1) The period of- (a) 90 days referred to in section 5 may be reduced; or (b) 90 days or 180 days referred to in sections 5 and 7 may be
extended for a fixed period, by
agreement between the parties or, failing such agreement, by a court or
tribunal on application by the person or administrator concerned. (2) The court or tribunal may grant an application in terms of
subsection (1) where the interests of justice so require. 10 Regulations (1) The Minister must make regulations relating to- (a) the procedures to be followed by designated administrators or in
relation to classes of administrative action in order to promote the right to
procedural fairness; (b) the procedures to be followed in connection with public inquiries; (c) the procedures to be followed in connection with notice and
comment procedures; (d) the procedures to be followed in connection with requests for
reasons; and (e) a code of good administrative conduct in order to provide
administrators with practical guidelines and information aimed at the
promotion of an efficient administration and the achievement of the objects
of this Act. (2) The Minister may make regulations relating to- (a) the establishment, duties and powers of an advisory council to
monitor the application of this Act and to advise the Minister on- (i) the appropriateness of publishing uniform rules and standards
which must be complied with in the taking of administrative actions,
including the compilation and maintenance of registers containing the text of
rules and standards used by organs of state; (ii) any improvements that might be made in respect of internal
complaints procedures, internal administrative appeals and the judicial
review by courts or tribunals of administrative action; (iii) the appropriateness of establishing
independent and impartial tribunals, in addition to the courts, to review
administrative action and of specialised administrative tribunals, including
a tribunal with general jurisdiction over all organs of state or a number of
organs of state, to hear and determine appeals against administrative action; (iv) the appropriateness of requiring administrators, from time to
time, to consider the continuance of standards administered by them and of
prescribing measures for the automatic lapsing of rules and standards; (v) programmes for educating the public and the members and employees
of administrators regarding the contents of this Act and the provisions of the
Constitution relating to administrative action; (vi) any other improvements aimed at ensuring that administrative
action conforms with the right to administrative justice; (vii) any steps which may
lead to the achievement of the objects of this Act; and (viii) any other matter in
respect of which the Minister requests advice; (b) the compilation and publication of protocols for the drafting of
rules and standards; (c) the initiation, conducting and co-ordination of programmes for
educating the public and the members and employees of administrators
regarding the contents of this Act and the provisions of the Constitution
relating to administrative action; (d) matters required or permitted by this Act to be prescribed; and (e) matters necessary or convenient to be prescribed in order to- (i) achieve the objects of this Act; or (ii) subject to subsection (3), give effect to any advice or
recommendations by the advisory council referred to in paragraph (a). (3) This section may not be construed as empowering the Minister to
make regulations, without prior consultation with the Public Service
Commission, regarding any matter which may be regulated by the Public Service
Commission under the Constitution or any other law. (4) Any regulation- (a) made under subsections (1) (a), (b), (c) and (d) and (2) (c), (d)
and (e) must, before publication in the Gazette, be submitted to Parliament;
and (b) made under subsection (1) (e) and (2) (a) and (b) must, before
publication in the Gazette, be approved by Parliament. (5) Any regulation made under subsections (1) and (2) which may result
in financial expenditure for the State must be made in consultation with the
Minister of Finance. (6) The regulations contemplated in subsection (1) (e) must be
approved by Cabinet and must be made within two years after the commencement
of this Act. [Date of commencement of
s. 10: 31 July 2002.] 11 Short title and commencement This Act is called the
Promotion of Administrative Justice Act, 2000, and comes into operation on a
date fixed by the President by proclamation in the Gazette.
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