The new constitution now contains a constitutional guarantee of the right to administrative justice in the Bill of Rights. Previously this right it was protected only under an Act of Parliament, the Administrative Justice Act.
The constitutional right is as follows:
68 Right to administrative justice
(1) Every person has a right to administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair.
(2) Any person whose right, freedom, interest or legitimate expectation has been adversely affected by administrative conduct has the right to be given promptly and in writing the reasons for the conduct.
(3) An Act of Parliament must give effect to these rights, and must—
(a) provide for the review of administrative conduct by a court or, where appropriate, by 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.
The Constitutional guarantee has aspects that were not in the provisions of the Administrative Justice Act. The new aspect in include the following:
- The right to efficient administrative conduct;
- The right to proportionate administrative conduct;
- The right to substantively fair administrative conduct.
This requires that an administrative authority perform its tasks diligently and with reasonable expedition. It overlaps with the requirement that it must perform its duties promptly.
This entails the notion that public officials should not use a sledgehammer to crack a nut. The adverse effects of administrative action must not completely outweigh its beneficial effects. When taking administrative action administrators should always consider whether there are less drastic or oppressive means to accomplish the desired end. It has been suggested that there should be a number of enquiries:
- What is the importance of the end sought to be achieved by the measure?
- Is the measure in question suitable or effective to achieve the desired aim?
- Is the measure necessary in the sense that no lesser form of interference with the rights of a person or persons is possible to achieve the desired aim or is there an equally effective alternative measure that can be used?
- Even though the measure is suitable to achieve the objective, does it not place an excessive burden on a person or persons which is disproportionate in relation to the the public interest at stake?
Previously administrative authorities were only required to carry out their duties in accordance with principles of procedural fairness that is in accordance with principles of natural justice.
Section 68 adds a new requirement that in addition to administrative action being procedurally fair it must also be substantively fair. It should be noted that this provision is not to be found in the Administrative Justice provision in section 33 the South African Constitution. It is not clear exactly what is meant by “substantively fair” and this provision will have to be interpreted by our courts. It would seem, however, that the substantive outcome of administrative decisions must be fair and the effect of administrative action must not be unfair. If this is correct it would require the courts to examine the nature of the decision or action in order to evaluate its fairness and this requirement would overlap with the requirements of both reasonabless and proportionality. The old approach where the courts delved only into the manner by which he administrative decisions were taken and avoided dealing with the substantive merits of the decision has thus been largely swept away because now the courts will be obliged to examine the substantive fairness of the administrative action.
The constitutional guarantee opens the way to constitutional litigation based on this provision.
Any ordinary legislation that is incompatible with the constitutional provision on administrative justice is now open to constitutional challenge and the Constitutional Court can now strike down any the legislative provision that is in violation of this provision. For example, the Constitutional Court may rule as unconstitutional a legislative provision that removes the right to an impartial hearing. It may also decide that the inclusion of a clause ousting the review jurisdiction of the High Court is unconstitutional. Even some of the current provisions of the Administrative Justice Act could be held to be unconstitutional e.g. the provisions allowing exemption from the duty to behave lawfully and reasonably.
However, litigants will only be entitled to go to the Constitutional Court where there is a specific constitutional issue. Basically it would seem that the normal remedy for a person aggrieved by administrative injustice will be to seek relief in the High Court in terms of the Administrative Justice Act. There is no need to approach the Constitutional Court in such matters. The constitutional remedy should be restricted to challenging legislative provisions on the basis that they are inconsistent with section 68 of the Constitution. As has already been indicated, there are a number of the provisions of the Administrative Justice Act itself that are wide open to constitutional challenge on the basis that they violate section 68 of the Constitution. The South African courts have adopted a similar approach when deciding when the constitutional remedy is available as opposed to the remedy in terms of the Promotion of Administrative Justice Act.