25 Administrative. Justice. Jonathan Klaaren

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1 25 Administrative Justice Jonathan Klaaren Page 25.1 Introduction: administrative justice and just administrative action Application Standing Application and standing Content of the right: s 33(a) Content of the right: s 33(b) Content of the right: s 33(c) Content of the right: s 33(d) Limitation clause Another right of administrative justice: s i

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3 ADMINISTRATIVE JUSTICE 25.1 INTRODUCTION: ADMINISTRATIVE JUSTICE AND JUST ADMINISTRATIVE ACTION 1The administrative justice provision introduced by s 24 1 of the interim Constitution (IC) has had far-reaching consequences for South African administrative law. 2 It has been interpreted and applied in numerous court decisions and many governmental actions, and is continued in s 33 of the final Constitution (FC). ICE 5, 1999Nevertheless, both the structure of the interim Constitution and the decisions of the Constitutional Court have made it clear that this section is not the single fount of administrative justice. The work performed in comparable constitutional instruments by a single all-embracing due process clause has been divided and allocated to several distinct sections of the South African Constitution: the limitations clause, the right of access to information, and the right of access to court as well as the right to freedom and security of the person. 3 Thus the right of administrative justice must be considered in relation to these other provisions. Furthermore, the body of pre-constitutional South African administrative law remains important in the constitutional era ---- at the very least as a point of departure. The introduction of constitutional administrative justice rights does not preclude further judicial development of common-law grounds of review. 4 Such development of the common law is encouraged by provisions such as IC s 35(3) and FC s 39(2). 5 The indirect influence of the Constitution 1 IC s 24, Administrative justice, provides: Every person shall have the right to ---- (a) lawful administrative action where any of his or her rights or interests is affected or threatened; (b) procedurally fair administrative action where any of his or her legitimate expectations is affected or threatened; (c) be furnished with reasons in writing for administrative action which affects any of his or her rights or interests unless the reasons for such action have been made public; and (d) administrative action which is justifiable in relation to the reasons given for it where any of his or her rights is affected or threatened. 2 See E Mureinik A Bridge to Where?: Introducing the Interim Bill of Rights (1994) 10 SAJHR See above, Woolman Limitations ch 12 and Klaaren Access to Information ch 24. See below, (access to courts) and Currie & Woolman Freedom and Security of the Person ch See, for example, Foulds v Minister of Home Affairs & others 1996 (4) SA 137 (W) at 149H--150A (natural justice requires that an applicant be informed of adverse information and adverse policy considerations and given an opportunity to respond thereto where there are no special circumstances justifying non-disclosure). See also Du Preez & another v Truth and Reconciliation Commission 1997 (3) SA 204 (A) (applying the duty to act fairly as part of common law). 5 FC s 39(2) provides: When interpreting any legislation, and when developing the common law..., [a court] must promote the spirit, purport, and objects of the Bill of Rights. IC s 35(3) provided similarly. As articulated by Cameron J in Holomisa v Argus Newspapers Ltd 1996 (2) SA 588 (W), this development can be far-reaching. Furthermore, this development applies not only to the common law but also to the interpretation and exercise of statutory discretions. For instance, in Lappeman Diamon Cutting Works v MIB Group (No 1) 1997 (4) SA 908 (W) IC s 22 read with IC s 8 (the right to equality) rendered invalid the previous interpretation of the statutory discretion, granted the courts by s 13 of the Companies Act 61 of 1973, to grant applications for the granting of security when it appears by credible testimony that there is reason to believe that a company as plaintiff or applicant will be unable to pay the costs of the defendant or respondent if successful in its defence. The courts had understood themselves empowered to lean towards granting such applications absent special circumstances. Finding such an interpretation contrary to the constitutional values of the access to courts right, Lappeman adopted a wide rather than a narrow interpretation of the discretion, eliminating the presumption towards its exercise

4 CONSTITUTIONAL LAW OF SOUTH AFRICA on the common-law grounds of review will probably be even greater than the direct influence. 1 Furthermore, the right of administrative justice has initiated a new spirit in the courts approach to statutory interpretation. 2 2 Specifying the relationship between the common law and the constitutional right itself has been complicated by the particular jurisdictional scheme of the interim Constitution. In Fedsure Life Assurance Ltd & others v Greater Johannesburg Transitional Metropolitan Council 3 the court concluded that under the interim Constitution the Appellate Division had no jurisdiction over matters concerning administrative action. 4 Of course, under the final Constitution the Supreme Court of Appeal does have such constitutional and common-law jurisdiction. 5 In Fedsure the Constitutional Court left open [w]hether the direct application of the provisions of section 24 of the interim Constitution means that the common law must meet the requirements of the section, or that the section grounds a cause of action independent of the common law. 6 The first option might take the form of a rule of exhaustion: that a litigant could avail herself of the constitutional right only where the common law did not afford a remedy. While there is no firm indication either way, the court might have signalled its willingness to enforce administrative justice rights by referring to a case that took an expansive attitude towards the protection offered by IC s 24, Van Huyssteen & others NNO v Minister of Environmental Affairs and Tourism & others. 7 The resolution of the above question may not matter greatly in substance in many cases since the court made it clear that the courts would enforce the rights of IC s 24 and FC s 33. The Supreme Court of Appeal has taken the view that the common-law grounds for judicial review of administrative action continue to exist in terms of IC s 24, a conclusion which presumably would apply to FC s According to the court: Judicial review under the Constitution and under the common law are different concepts. In the field of administrative law constitutional review is concerned with the constitutional legality of administrative action, 1 For instance, the information gained via s 33(c) and s 32 regarding the process of decision-making will greatly strengthen other grounds of administrative-law review. Practitioners would be well advised to request such reasons and such access to information as a matter of course in any case challenging administrative action. 2 See, for example, Director: Mineral Development Gauteng Region v Save the Vaal Environment 1999 (2) SA 709 (SCA), 1999 (8) BCLR 845 (SCA) (reading audi into statutory provisions of the Minerals Act 50 of 1951) (1) SA 374 (CC), 1998 (12) BCLR 1458 (CC). 4 At para 105. See also Rudolph & another v Commissioner of Inland Revenue & others 1996 (2) SA 886 (A); Roman v Williams NO 1998 (1) SA 270 (C), 1997 (9) BCLR 1267 (C); Fedsure Life Assurance Ltd & others v Greater Johannesburg Transitional Metropolitan Council & others 1998 (2) SA 1115 (SCA) at 1123J--1124D. 5 As a matter of interpreting item 17 of Schedule 6, the Supreme Court of Appeal will also have such jurisdiction even where it is interpreting the interim Constitution. Fedsure Life Assurance at paras The Supreme Court of Appeal has adopted a case-by-case approach to the question of whether it will exercise jurisdiction in such cases, but appears to hold that it will exercise jurisdiction where review proceedings were brought on constitutional as well as common-law grounds. Commissioner of Customs and Excise v Container Logistics (Pty) Ltd 1999 (3) SA 771 (SCA), 1999 (8) BCLR 833 (SCA) at para 6. 6 At para At para 105 (citing 1996 (1) SA 283 (C)). See generally Farjas (Pty) Ltd v Regional Land Claims Commissioner, KwaZulu-Natal 1998 (2) SA 900 (LCC), 1998 (5) BCLR 579 (LCC). 8 Commissioner of Customs and Excise v Container Logistics (Pty) Ltd 1999 (3) SA 771 (SCA), 1999 (8) BCLR 833 (SCA) at para

5 ADMINISTRATIVE JUSTICE the question in each case being whether it is or is not consistent with the Constitution, and the only criterion being the Constitution itself. Judicial review under the common law is essentially also concerned with the legality of administrative action but the question in each case is whether the action under consideration is in accordance with the behests of the empowering statute and the requirements of natural justice. The enquiry in this regard is not governed by a single criterion. 3 Replacing IC s 24, s 33 of the final Constitution (FC) is entitled Just administrative action. 1 Section 33(1) essentially maintains the provisions of the interim Constitution while simplifying the language of the clause. In particular, the troublesome where clauses of the interim Constitution are eliminated. In s 33(2) the parallel development represents a retreat from the provisions of the interim Constitution: written reasons for decisions are still guaranteed, but are no longer extended to the broadest class of administrative action. Instead they are available only where a person is adversely affected by that action. The result is that courts faced with standing and application questions in relation to administrative justice are even more likely under the final Constitution to draw on prior common-law concepts. This is perhaps a welcome development since a coherent and consistent interpretation of the where clauses was not readily apparent. However, s 33 does not take immediate effect. The operation of s 33 is suspended for a period perhaps as long as three years. In terms of clause 23(2)(b) of FC Schedule 6, s 33(1) and (2) are to be regarded to read essentially as IC s 24, while Parliament is given time, by item 23(1), to draft legislation giving effect to the right to just administrative action. 2 There 1 Section 33 provides: (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 an efficient administration. 2 A committee of the South African Law Commission has drafted an Administrative Justice Bill which is intended to be submitted to the Minister of Justice in August 1999 for tabling in Parliament. If such legislation is not enacted before 4 February 2000, the s 33(1) and (2) rights will automatically come into operation of their own force, with s 33(3) lapsing. The argument for this is by analogy with the consideration of the parallel clauses of the access to information right. See Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa, (4) SA 744 (CC), 1996 (10) BCLR 1253 (CC) at para 83. The question of whether such legislation will need to be tested against s 33(1) and (2) or whether it is co-extensive with the constitutional right of just administrative action is an open one. Certification of the Constitution, 1996 (supra) at para 86 seems to indicate that such a statute ---- at least in the access to information context ---- will enjoy a measure of deference. See also Vermont Yankee Nuclear Power Corp v NRDC 435 US 519 (1977), particularly at 548 and 558. See generally J Klaaren Constitutional Authority to Enforce the Rights of Administrative Justice and Access to Information (1997) 13 SAJHR 549. For an examination of the shape of the legislation to be passed, see M Asimow Administrative Law under South Africa s Final Constitution: The Need for an Administrative Justice Act (1996) 113 SALJ 613 and H Corder Administrative Justice in the Final Constitution (1997) 13 SAJHR

6 CONSTITUTIONAL LAW OF SOUTH AFRICA are only three linguistic differences between s 24 and the transitional s All of these appear to be minor and intended solely to be in keeping with the use of plain language. 2 Since the transitional s 33 presently applies, the remainder of this chapter will discuss its provisions APPLICATION 4In general the reach of the administrative justice clause will, of course, conform to the constitutional limits of application required by the Bill of Rights. 3 However, those limits are certainly open to interpretation. Application may even vary depending upon the specific right at issue. 4 The reach of s 33 will therefore have to be determined by a process of purposive interpretation. 5 This section will treat matters of application, the following section those of standing, and the subsequent section will discuss the relationship between the two in the context of s 33. To find the limits of application of s 33 the boundaries of administrative action will need to be defined. This is the term used in each of the four subsections of s 33 and is therefore the key term to define. It is submitted that, subject to the three broad exceptions discussed below, administrative action extends to all action taken by bodies exercising public power. 6 The exercise of a discretion is administrative action. 7 The process of a government tender is administrative action. 8 Administrative action has been interpreted to 1 References to s 33 in this chapter, unless otherwise qualified, will be references to the transitional s 33, which is contained in item 23 Bill of Rights of FC Schedule 6, and reads as follows: (2) Until the legislation envisaged in sections 32(2) and 33(3) of the new Constitution is enacted ---- (a)... (b) section 33(1) and (2) must be regarded to read as follows: Every person has the right to ---- (a) lawful administrative action where any of their rights or interests is affected or threatened; (b) procedurally fair administrative action where any of their rights or legitimate expectations is affected or threatened; (c) be furnished with reasons in writing for administrative action which affects any of their rights or interests unless the reasons for that action have been made public; and (d) administrative action which is justifiable in relation to the reasons given for it where any of their rights is affected or threatened.. 2 The verb tense shifts from shall have to has. The term such action changes to that action. And the possessive pronouns his or her shift to their. 3 Note that the application provisions of the final Constitution are significantly broader than those of the interim Constitution. See above, Woolman Application ch See above, Woolman Application See above, Kentridge & Spitz Interpretation ch See e g Jeeva v Receiver of Revenue, Port Elizabeth 1995 (2) SA 433 (SE) at 443I: A commission of inquiry authorized by the Master of the Supreme Court and held under the machinery of the Companies Act is administrative action. See also Gardener v East London Transitional Local Council & others 1996 (3) SA 99 (E) at 113F--117A, where the court broadly supports the view that the enactment of delegated legislation is administrative action. But cf Directory Advertising Cost Cutters v Minister of Posts, Telecommunications and Broadcasting & others 1996 (3) SA 800 (T) at 811G--H. 7 Deacon v Controller of Customs and Excise 1999 (2) SA 905 (SE). 8 Umfolozi Transport (Edms) Bpk v Minister van Vervoer en andere [1997] 2 All SA 546 (SCA); Aquafund (Pty) Ltd v Premier of the Western Cape 1997 (7) BCLR 907 (C); ABBM Printing and Publishing (Pty) Ltd v Transnet Ltd 1997 (10) BCLR 1429 (W). For a discussion of a case holding to the contrary, see Goodman Bros (Pty) Ltd v Transnet Ltd 1998 (8) BCLR 1024 (W) (discussing SA Metal Machinery Co Ltd v Transnet Ltd (Witwatersrand Local Division, unreported, 22 March 1998))

7 ADMINISTRATIVE JUSTICE include the arbitration proceedings conducted under the auspices of the labour tribunal, the Commission for Conciliation, Mediation, and Arbitration. 1 Action taken by bodies such as parastatal corporations with the status of organs of state will be administrative action. 2 5 Administrative action should be interpreted to cover not only adjudicative administrative decisions but also delegated and subordinate legislation. To restrict the clause to adjudications only would be unthinkable, given the vast bulk of governmental administration undertaken by regulation. In Fedsure Life Assurance Ltd & others v Greater Johannesburg Transitional Metropolitan Council & others 3 the Constitutional Court clearly supported coverage by the administrative justice clause beyond administrative adjudications. The court was thus willing to go beyond the bounds of South African Roads Board v Johannesburg City Council, 4 where Milne JA elaborated upon a distinction between those government decisions applying generally (termed legislative ) and those applying in a particular situation. 5 According to the court, cases referred to by Milne JA in exempting the impact of natural justice upon legislative decisions were of little assistance in determining the content of administrative action in terms of the Constitution. 6 The court noted: 7 Laws are frequently made by functionaries in whom the power to do so has been vested by a competent legislature. Although the result of the action taken in such circumstances may be legislation, the process by which the legislation is made is in substance administrative. The action of making delegated and subordinate legislation is thus administrative action. Further, not only the decisions taken or rules promulgated under a statute but also the statutory regulatory framework itself falls within the substantive reach of s One does not only have a right to the procedures laid down in legislation. Such procedures themselves will be scrutinized under s 33 (and s 34). 9 Obviously, most action taken by private persons and bodies may fall outside s 33. A decision by a private individual to let out a room obviously does not constitute administrative action. However, a number of private bodies have previously had the principles of administrative justice applied to regulate their functioning. For instance, universities have been required to observe natural justice and will presumably be covered by s The category of those bodies traditionally covered by administrative justice may include some bodies which are organs of state. Whether or not they qualify as organs of state, those private bodies exercising public power should be regulated by s Of course, there will be some changes 1 Kynoch Feeds (Pty) Ltd v CCMA & others [1998] 4 BLLR 384 (LC) at para For a discussion of the organ of state doctrine, see above, Woolman Application 10.3(a)(iv)(cc) and 10.8(a)(v) (2) SA 374 (CC), 1998 (12) BCLR 1458 (CC) (4) SA 1 (A). 5 In this decision Milne JA refined the pre-existing distinction considerably. See Mureinik Administrative Law in 1991 Annual Survey of South African Law At paras At para See below, Cleveland Board of Education v Loudermill 470 US 532, 105 SCt 1487 (1985). 10 Lunt v University of Cape Town 1989 (2) SA 438 (C). 11 See the Breakwater Declaration reprinted in Administrative Law Reform (1993). The Declaration was adopted in 1993 by a representative conference of administrative lawyers. For a case often cited as representative of this trend, see Dawnlaan Beleggings Bpk v Johannesburg Stock Exchange & others 1983 (3) SA 344 (W)

8 CONSTITUTIONAL LAW OF SOUTH AFRICA from prior administrative-law practice. A few bodies previously covered may no longer be. For instance, religious bodies were covered by the rules of administrative justice but may escape coverage as a result of the entrenchment of religious freedom in the Bill of Rights. 1 In addition, the contractual source of the application of administrative law to some bodies in the pre-constitutional era may provide space to argue that such bodies remain governed only by the common-law administrative principles. One court has decided that political parties are not subject to the rules of administrative justice. 2 6 Several categories of governmental action may not fall into the definition of administrative action: legislative action, judicial action, and constitutional organ action. First, there may be some governmental action which is legislative in character which will not by definition qualify as administrative. 3 For instance, if Parliament passed an Act to expropriate a piece of property, such legislation would not need to satisfy the strictures of s 33. The defining character of such legislative action is not, however, its general application but rather its source in the parliamentary process. Delegated legislation thus remains contained within the term administrative action. 4 The Constitutional Court confirmed this legislative exception to the reach of administrative action in Fedsure Life Assurance Ltd and others v Greater Johannesburg Transitional Metropolitan Council. 5 IC s 24 did not apply to the by-laws made by a municipal council. The council was a deliberative legislative body whose members are elected and its enactment of legislation was thus not covered by s According to the court, the proper form of accountability over this form of governmental action was a political one to the electorate rather than a judicial one through the right of administrative justice to the courts. 7 1 For example, see Theron en andere v Ring van Wellington van die NG Sendingkerk in Suid-Afrika en andere 1976 (2) SA 1 (A). Religious bodies have been susceptible to review as other associations by reason of contract. The value of religious freedom introduced by IC s 14 and FC s 15 may lead to a change in this common-law doctrine. See above, Smith Religion ch Bushbuck Ridge Border Committee & another v Government of the Northern Province & others 1999 (2) BCLR 193 (T) at 200B. 3 In any case, it should be clear that the term administrative does not import the doctrine of classification of functions, discredited by Corbett CJ in Administrator, Transvaal v Traub 1989 (4) SA 731 (A) at 763. In addition, it should be clear that s 33 cannot be used to override specific procedures for legislative action laid down in the Constitution. For example, the passage of legislation does not need to satisfy a fairness standard of s 33, but merely the specific procedural requirements laid down in Chapter 4. 4 Administrative action that is legislative in the sense of applying generally is, it is submitted, subject to procedural fairness, although, for instance, a pre-promulgation hearing would not be a required element. See discussion of SA Roads Board and s 33(b) and below, (2) SA 374 (CC), 1998 (12) BCLR 1458 (CC). 6 At paras The issue of the extent of the legislative exception to the definition of administrative action arose in Cekeshe & others v Premier of the Eastern Cape & others 1999 (3) SA 56 (Tk), 1997 (12) BCLR 1746 (Tk) at 1765G. The court accepted as a general proposition that legislative action which has its source in the parliamentary process, in the sense that there is a special opportunity for a motion and debate by a body with legislative powers, will by definition not qualify as administrative action. The court at 1766E apparently confused the question of what constitutes constitutional administrative action throughout s 33 with the question of what kind of such constitutional administrative action attracts a hearing in terms of s 33(b), but correctly characterized the dissolution of a company by the Premier in terms of s 13 of the Corporations Act 10 of 1985 (Transkei) as administrative action for the purposes of both questions

9 ADMINISTRATIVE JUSTICE 6ASecondly, there may also be governmental action which is judicial in character and therefore not administrative action and not subject to s 33. In Nel v Le Roux NO & others 1 Ackermann J stated obiter that the summary sentencing procedure of s 205 of the Criminal Procedure Act 2 was judicial and not administrative action. This category of action ---- as with the category of legislative action ---- should also be characterized by its source in the judicial process (e g the act of sentencing) rather than by its adjudicative nature (e g the application of law to facts). 3 Such judicial action would be taken in terms of original constitutional judicial authority. On this argument, for instance, a court s exercise of a summary sentencing procedure might be insulated from the administrative justice right not by the provisions of parliamentary legislation but rather by virtue of the judicial authority vested in the courts by FC s 165(1). For instance, in Carephone (Pty) Ltd v Marcus NO & others the submission that compulsory arbitration in terms of the Labour Relations Act 4 was a kind of judicial, and thus not administrative, action was rejected on the notion that judicial action was action by courts of law, action which is already subject to the values of accountability, responsiveness, and openness. 5 Using this exception, one case has held that decisions of arbitrators in terms of the Arbitration Act 6 are judicial rather than administrative in nature. 7 Thirdly, there may be governmental action which is taken by organs and officers specifically mentioned in the Constitution which is not administrative action. 8 As with the legislative and judicial exceptions, the original constitutional source of the authority behind the action distinguishes this action from administrative action. For instance, action taken by an ad hoc committee of the National Assembly should not be considered administrative (3) SA 562 (CC), 1996 (4) BCLR 592 (CC) at para Act 51 of To date the court has not expressed a firm opinion on the definition of administrative action. While Ackermann J expressed grave doubts on the applicability of IC s 24 beyond sentencing to the information-gathering procedures of s 205, he also stated that, if IC s 24 did apply, there was no infringement of the right because the examinee s rights are adequately protected. See Nel (supra) at para 24. Thus his statement is obiter. Moreover, elsewhere in his judgment Ackermann J seemed to treat those procedures as administrative rather than judicial, noting the application and importance of procedural fairness, due process, and natural justice in the administration of the s 205 proceeding. See Nel (supra) at paras 11, 17 and 21. Likewise in Bernstein & others v Bester & others NNO 1996 (2) SA 751 (CC), 1996 (4) BCLR 449 (CC) at paras Ackermann J expressed doubts about whether the inquiry conducted under ss 417 and 418 of the Companies Act 61 of 1973 was administrative action in terms of IC s 24, but assumed that it was and found its procedures to be facially consistent with IC s 24(b) and (c). Perhaps most significantly, Kriegler J (Didcott J concurring) and O Regan J specifically declined to endorse Ackermann J s doubts on the scope of administrative action. See Bernstein (supra) at paras 131 and Act 66 of (3) SA 304 (LAC), 1998 (10) BCLR 1326 (LAC) at paras Act 42 of Patcor Quarries CC v Issroff & others 1998 (4) SA 1069 (SE). This decision may be best supported by the voluntary nature of such arbitration. 8 The Constitutional Court seemed to confirm the existence of a category of executive action excepted from the reach of administrative justice in Fedsure Life Assurance Ltd & others v Greater Johannesburg Transitional Metropolitan Council & others 1999 (2) SA 374 (CC), 1998 (12) BCLR 1458 (CC). According to the court, [i]n relation to legislation and executive acts that do not constitute administrative action, the principle of legality is necessarily implicit in the Constitution (at para emphasis added) A

10 CONSTITUTIONAL LAW OF SOUTH AFRICA action, although the Constitution may be interpreted to require a committee s compliance with fairness and natural justice. 1 Likewise, the exercise of the President s powers as head of state in terms of IC s 82(2)(e) and FC s 84(2)(f) is not one where the strictures of administrative justice ought to apply. A recent case of note is, however, to the contrary. 2 None the less, since the rationale for excluding this category of governmental action from the ambit of the right to administrative justice is the explicit and textual sources for such power, a broad-based executive exception should not be constructed. 3 Other action which is taken by organs and officers specifically mentioned in the Constitution will be administrative action. For instance, the decision by the Judicial Service Commission to adopt a closed or an open procedure in conducting interviews should be characterized as administrative action. An alternative argument to the argument that the above governmental action is not administrative action is the argument that the administrative justice right does apply but that the organ or officer has the discretion to determine its content. 6B 1 De Lille & another v Speaker of the National Assembly 1998 (3) SA 430 (C), 1998 (7) BCLR 929 (C) (applying common-law rules of natural justice to an ad hoc committee of Parliament without terming the action of such committee administrative action). 2 South African Rugby Football Union & others v President of the Republic of South Africa & others 1998 (10) BCLR 1256 (T) at 1267D. 3 Cf Bushbuck Ridge Border Committee & another v Government of the Northern Province & others 1999 (2) BCLR 193 (T) (terming action by provincial and national governments executive and not administrative in nature) B

11 ADMINISTRATIVE JUSTICE 7 Beyond the definition of administrative action the two fundamental interpretive problems in s 33 relate to the meaning of the term affect and the use of the term threaten. First, it is necessary to give meaning to the word affect in order to determine the scope of s 33. One approach, that of Etienne Mureinik, points out an ambiguity in the term affect. 1 The term may mean either affect in the sense of deprive or affect in the sense of determine. Under the deprivation meaning a narrow class of administrative action is covered. Under the determination theory a much broader (nearly universal) class of administrative action is covered. 2 Which of these meanings should we ascribe to the use of the term in s 33? This approach argues that the meaning varies subsection by subsection. The wide sense is used in s 33(a) and (c), as the use of the term interests shows, while the narrow sense is used in s 33(b). 3 This leaves s 33(d), where, on policy grounds, Mureinik argues for the determination theory. While Mureinik s argument has force, the simpler solution of reading affect in an ordinary sense to mean touch upon or have an effect on would be a consistent method of interpreting these clauses. 4 This interpretation (which is broader even than the determination theory) may also be preferred especially when one takes into account the argument presented below, which sees these where clauses as matters of standing rather than application. On this reading the administrative justice clause would apply to all administrative action, although the class of decisions that one could challenge in court would be limited. Secondly, as a further interpretive problem s 33 uses two verbs: affect and threaten. The linguistic choice of both verbs gives rise to at least two interpretive possibilities regarding the term threatened. First, the section s reference to threatened as well as affected may bring advisory decisions within the ambit of the administrative justice clause. 5 This language would therefore overrule cases such as Cassem v Oos-Kaapse Komitee van die Groepsgebiederaad, 6 at least in so far as s 33(a) and (b) are concerned. There is, however, a second interpretive possibility. The inclusion of threaten in s 33 as well as affect could function to add the notion of affecting in the future to the basic notion of affecting in the present or past. This interpretation would be consistent with the expansion of the range of 1 Mureinik A Bridge to Where: Introducing the Interim Bill of Rights (1994) 10 SAJHR 31. See also Mureinik, unpublished memorandum on Admin Justice in the BoR (6 July 1994). 2 This ambiguity is argued to have run through South African administrative law. Cf Laubscher v Native Commissioner, Piet Retief 1958 (1) SA 546 (A) at 549, indicating that natural justice attaches to deprivation of rights, with Hack v Venterpost Municipality 1950 (1) SA 172 (W) at , indicating that natural justice attaches to determination of rights. 3 This is so since, if the determination theory is meant in s 33(b), there would be no point to the inclusion of legitimate expectations. Further, while one can meaningfully deprive someone of rights, it is unclear how one can be deprived of an interest since one cannot take away a potential that is not yet enjoyed. 4 But see Mureinik Administrative Justice Clause in BoR at 14: Clearly affects interests can t be construed literally, to mean touches interests. If it did it would make the class of administrative action unmanageably wide: in a polycentric society thousands of decisions very remote from me affect my interests ---- e g the resignation of Keys as Minister of Finance touches my interests, but no-one would suggest it falls within the meaning of s 24(c). 5 See Mureinik Administrative Justice Clause in BoR. By contrast, s 33(c), with its omission of threaten, would not subject advisory decisions to the requirement to give reasons in writing (3) SA 651 (A). Cassem held that advisory or recommendatory decisions were not within the ambit of natural justice. See 1990 Annual Survey

12 CONSTITUTIONAL LAW OF SOUTH AFRICA constitutionally remediable harms which s 38 provides. 1 It would also explain why threaten is included in s 33(a) and (b), but is omitted from s 33(c). 2 It is submitted that the second interpretation set out above should be preferred. On the reading of affect suggested above, advisory decisions would already be covered. Thus the term threaten must expand the reach of both s 38 and s 33 in another direction. The most likely expansion is into the realm of future effects STANDING 8In practice, most administrative justice issues begin with a consideration of the question of standing. While the application of the Constitution refers to the institutions, bodies and persons who are bound by the Constitution and the scope of the obligations owed by them, the question of standing concerns the class of institutions, bodies, and persons entitled to approach the courts for relief against breaches of their constitutional rights. 4 The express standing requirement is contained in the where clauses of s A first issue to consider is the relation between standing under s 38 and standing under the administrative justice clause. It is submitted that s 38 merely sets out minimum constitutional requirements. The more specific textual provisions relating to standing in s 33 therefore create standing requirements which are, at least in part, more restrictive. 6 Consequently, an applicant who 1 Section 38 entitles a person to apply for relief if he or she alleges that a fundamental right has been infringed or threatened. This language should make it clear that a constitutional inquiry may be triggered by conduct which falls short of constituting an actual infringement. Persons are protected against threats to their fundamental rights and need not wait for an actual infringement before seeking relief. Section 38 therefore has a bearing on the types of harm against which Chapter 2 aims to protect. Were the term threaten not included in s 33, under the rule of interpretation that more specific language controls, the reach of s 33 might not have been as wide as the reach of s Section 33(c) is the only subclause to deal with administrative action that has exclusively taken place in the past. One cannot ask for written reasons for a decision that has not yet been taken. Under the other subsections, however, there can be a right requiring prospective action to be lawful, procedurally fair, and justifiable. The counter-argument that s 33(d), like s 33(c), covers only past conduct should be rejected. The term given in s 33(d) does seem to suggest that the section relates to past action by an administrative body which must be justified. However, this right can also operate prospectively. The right to justifiable decisions must be respected while the administrative decision (which may itself be a multi-staged and multi-institutional process, such as many modern environmental decisions) is being made. 3 This interpretation is further supported by Canadian case law, which holds that the fundamental rights remedy clause, s 24(1), will be satisfied by the allegation of an imminent threat (although not a mere apprehension) of a future Charter violation. See Quebec Association of Protestant School Boards v Attorney General, Quebec (1982) 140 DLR (3d) 33 (Que SC) (standing granted to challenge school admission policy even before school year has begun and thus before the applicant s child actually denied admission). See generally Hogg Constitutional Law of Canada 3 ed (1992) sec 37.2(e). Section 38 makes explicit what has been established by judicial interpretation in Canada. 4 In other words, as a matter of application the Constitution may create rights, but there may be no entitlement to seek judicial review of administrative action as a matter of standing. The appropriate remedy to vindicate constitutional rights is then recourse to the legislature or to the administrative body directly or to a body such as the Public Protector or the Human Rights Commission. This section interprets the where clauses in s 33 as signals to the court to apply the doctrine of standing rather than as provisions relating to application. A full defence of this proposition is made in the following section. 5 Three of the subsections contain where clauses. Section 33(c) does not, and uses the term which affects.... The switch from the term where to that of which may be grammatical, given the existence of the publicity proviso in s 33(c). Or it may reflect the different position of s 33(c) in relation to the timing of judicial review. 6 It may be that standing should be narrowed from the s 38 parameters only where there is an express textual indication to do so. However, s 33 is the sole section in the Chapter on Fundamental Rights to speak of rights and interests. It therefore clearly contains the requisite textual indications

13 ADMINISTRATIVE JUSTICE would have standing under s 38 to challenge other threatened infringements of Chapter 2 rights would not automatically have standing to trigger s 33 inquiries. 9 While some courts have denied relief on the grounds that the action affects no legal right, 1 the Constitutional Court has indicated that its understanding of the concept of a right may be broader than the common-law notion. 2 What is the interest referred to in s 33? Our pre-constitutional common law requires that an applicant demonstrate an interest which is direct, real or present and not common to all members of the community before locus standi will be granted. 3 In Jacobs v Waks Botha JA defined locus standi thus: 4 In general the requirement of locus standi means that someone who seeks relief must have a sufficient interest in the subject-matter of the litigation to persuade the court that his claim should be adjudicated. In the administrative justice context, interest should thus be defined to include an economic interest implicated by the administrative action. 5 While one early case, Xu v Minister van Binnelandse Sake, 6 dismissed an application requesting reasons under IC s 24(c) for a refusal to grant a temporary residence permit on the grounds that no constitutional right or interest existed, the decision was clearly incorrect as the interest of remaining in the country should 1 In Podlas v Cohen and Bryden NNO & others 1994 (4) SA 662 (T) the issuing of a notice to attend what the court termed an investigative inquiry in terms of s 152 of the Insolvency Act 24 of 1936 was apparently held not to affect the witnesses liberty or property or any other existing right prejudicially with respect to s 24(b). Procedural fairness was thus not applied. The question of legitimate expectation was not considered. As an alternative argument, the court also invoked the limitation clause. In a more careful examination a similar route was taken in Park-Ross v Director: Office for Serious Economic Offences 1998 (1) SA 108 (C), 1997 (2) SACR 401 (C). Here, no right to a hearing before the Director was found where the Director was investigating possible crimes and preparing a report in terms of s 5(11) and (12) of the Act for submission to the Attorney-General. Thus, no rights would be infringed under s 24(a) and (b) (at 124E--F). The court then considered whether a legitimate expectation existed and, assuming so, found such expectation satisfied. The court thus applied the constitutional protection of procedural fairness. For a development of the common law in a similar context, see Van der Merwe & others v Slabbert NO & another 1998 (3) SA 613 (N), 1998 (6) BCLR 697 (N) (duty to act fairly applies to the workings of a purely preliminary and investigative commission of inquiry, requiring timely notice and sufficient information to prepare to be given to persons affected). Although this court termed the issue as one of the definition of administrative action, failure to show a legal right and thus to trigger procedural fairness protection is the better explanation for the decision in Frans v Groot Brakrivierse Munisipaliteit en andere 1998 (2) SA 770 (C), 1997 (3) BCLR 346 (C). 2 See Premier, Province of Mpumalanga v Executive Committee of the Association of Governing Bodies of State-Aided Schools: Eastern Transvaal 1999 (2) SA 91 (CC), 1999 (2) BCLR 151 (CC) at para 31 n 9 (citing Dilokong Chrome Mines (Edms) Bpk v Direkteur-Generaal Deparment van Handel en Nywerheid 1992 (4) SA 1 (A) at 18). 3 See above, Loots Access to Courts and Justiciability See also Erasmus Superior Court Practice A (1) SA 521 (A) at 533J--534B, in translation, as done in the 1992 Annual Survey See Association of Data Processing Service Organizations v Camp 397 US 150, 90 SCt 827 (1970) (prospect of increased competition sufficient personal economic interest for standing). In terms of the Canadian law the interest referred to in s 24 must be the broader interest of the Canadian Bill of Rights s 2(e) rather than omission of economic interest in s 7 of the Charter. See Hogg Constitutional Law of Canada sec (1) SA 185 (T)

14 CONSTITUTIONAL LAW OF SOUTH AFRICA easily have qualified as a sufficient interest for purposes of IC s 24(c) and s 33(c). 1 Xu has been expressly criticized on this point by a later case. 2 While the definition of the term interest in s 33 should probably be the same as in s 38(a), it is employed in s 33(a) and (c) only. To satisfy standing requirements for the other subsections of s 33 one must demonstrate more than merely an interest: at least a legitimate expectation (for s 33(b)) or a right (for s 33(d)). To be consistent (although consistency is not necessarily a constitutional value) heightened standing requirements for these subsections may also apply to the other forms of standing in s 38, such as associational standing Beyond these textual provisions, courts may also read further standing limitations into s 33. In particular, courts may develop implicit standing along three lines. A first implicit standing limitation is the stakeholder requirement. There may be a realistic difference between those persons initiating contact with the government (for instance, when applying for a benefit) and those persons already in contact with the government (for instance, when already holding a benefit). Indeed, Administrator, Transvaal v Traub can be read to question whether the legitimate expectation doctrine applies to a person s first relationship to the government. 4 Although the holder of a benefit would certainly have standing as a stakeholder for s 33 purposes, an applicant for a governmental benefit may not have such standing, at least not in all circumstances. This distinction between stakeholder and applicant could clearly limit the scope of s 33(b), the right to procedural fairness. It is less clear whether the distinction could also be used to limit the right to justifiable decisions in s 33(d). In any case, the focus would be on the strength of the person s interest and not the character of the government action. A second implicit standing limitation is that of finality. 5 How final does administrative action need to be under s 33 before it attracts administrative justice rights? 6 There would be very good reasons for only allowing final administrative action to be reviewable in court. As in civil actions, one would want to avoid interlocutory appeals and instead to consolidate all issues into one proceeding. To do so is to conserve judicial resources and to foster administrative efficiency. It also seems possible to understand the rule against reviewing advisory 1 The Xu decision has been followed in Naidenhov v Minister of Home Affairs & others 1995 (7) BCLR 891 (T) and Parekh v Minister of Home Affairs & another 1996 (2) SA 710 (D), but criticized in Foulds v Minister of Home Affairs & others 1996 (4) SA 137 (W) at 144D--F and 145A--E and by Klaaren So Far Not So Good: An Analysis of Immigration Decisions Under the Interim Constitution 12 SAJHR 605 at Tettey & another v Minister of Home Affairs & another 1999 (3) SA 715 (D), 1999 (1) BCLR 68 (D). 3 Thus pre-constitutional case authority granting associations standing in relation to a legitimate expectation would remain valid. Union of Teachers Associations of South Africa v Minister of Education and Culture 1993 (2) SA 828 (C) at 844I--J. However, it is not nearly as clear that procedural fairness on the basis of legitimate expectations would be extended to, for instance, a person acting in the public interest and seeking standing under IC s 7(4)(b)(v). Such a person might well be found to lack standing. This would not mean that there was no constitutional remedy for the protection of the right: the remedy might be to pursue the matter through legislative or human rights commission channels rather than by application to the court (4) SA 731 (A) at 761 and 757F--758C. 5 See Baxter Administrative Law (1984) at (ripeness). 6 The discussion here draws upon Peter Strauss An Introduction to Administrative Justice in the United States (1989)

15 ADMINISTRATIVE JUSTICE decisions in this way. Furthermore, if all decisions ---- even the decision to write a letter advising the public of a likely interpretation by the administrative body ---- were reviewable as final, the administrative body concerned may hesitate before offering advisory opinions. If our courts develop doctrines of finality, promulgated delegated legislation 1 or a decision to reject an application communicated to the applicant would clearly be final. But what about a decision to initiate proceedings? 2 What of a failure to act in response to a complaint? 3 What of an advisory decision that may have a nearly determinative effect, but is not legally binding? 4 11 A final set of standing limitations can be implied from the law which grants the person s right, legitimate expectation, or interest in the first place. For instance, as a matter of application procedural fairness arguably applies to all respondents to a government tender offer. 5 Does this mean that each respondent needs a hearing before their tenders are rejected? While the principle of procedural fairness can be held to be generally applicable, standing rules can narrow the class of persons who may actually come to court for a judicial remedy. As a matter of standing, US cases require that legislation must exist which creates a right in the lowest bidder who complies with the specifications to be awarded the contract. Only if such legislation exists, will low tenderers have standing to apply for judicial review of adverse decisions for lack of due process. A property right or interest, derived from the statutory provisions, will then form the basis for any due process challenge which will require the agency awarding the contract to demonstrate that its exercise of discretion was not arbitrary. In other words: if there is law requiring that only the lowest tender be accepted, then only a low tenderer may sue, alleging the proper procedures were not followed. 6 1 This particular example was not necessarily an easy one in the US. Until 1967 there was no clear presumption that final administrative action was reviewable. The position changed with Abbott Laboratories v Gardner 387 US 136, 87 SCt 1507 (1967) (a rule once adopted constitutes final agency action and is reviewable even without enforcement proceedings). 2 Here the balance might be struck in favour of the efficient administration of the executive body and against the ability of the target of the action to impose significant delay costs upon the body; the issuance of a complaint letter should not be seen as final action since it only imposed costs of litigation. Federal Trade Commission v Standard Oil Company of California 449 US 232 (1980). 3 The US position in this regard is that agency inaction can be considered final where a fairly derived statutory duty to act can be established. See Strauss Administrative Justice In one American case the position was taken that letters of advice signed by the head of the body concerned are final and reviewable unless explicitly labelled as tentative or subject to reconsideration. See National Automatic Laundry and Cleaning Council v Shultz 443 F2d 689 (1971). 5 For this particular example, note the provisions of IC s 187(2) and FC s 217(1). See GNH Office Automation CC & another v Provincial Tender Board & others 1996 (9) BCLR 1144 (Tk) at 1165G (procedures followed in the course of the tendering process were neither right nor just nor fair, these being the correct criteria to apply in the context of IC s 24(b)). 6 Scanwell Laboratories Inc v Schaffer 424 F2d 859 (DC Cir 1970). For a South African argument to this effect, see SA Metal Machinery Company Ltd v Transnet Ltd 1999 (1) BCLR 58 (W) at 65h--66D (arguing that the interest of a tenderer is only a claim of an individual to lawful treatment and is entirely at the tenderer s own risk)