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[2012] ZAGPPHC 54
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Lawyers for Human Rights v Rules Board for Courts of Law and Another (78163/2009) [2012] ZAGPPHC 54; [2012] 3 All SA 153 (GNP); 2012 (7) BCLR 754 (GNP) (11 April 2012)
REPORTABLE
IN THE NORTH GAUTENG HIGH
COURT, PRETORIA
(REBUBUC OF SOUTH AFRICA)
CASE
No. 78163/2009
DATE:11/04/2012
LAWYERS
FOR HUMAN
RIGHTS
...............................................................................
Applicant
and
RULES
BOARD FOR COURTS OF
LAW
........................................................
First Respondent
MINISTER
OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
..........................................................................................
Second
Respondent
JUDGMENT
Van
der Byl, AJ:-Introduction
[1]
In terms of section 7(3) of the Promotion of Administrative Justice
Act, 2000 (Act 3 of 2000) ("the PAJA"), the Rules
Board for
Courts of Law (cited in this matter as the First Respondent) was
enjoined to make "rules of procedure for judicial
review"
before 25 February 2009.
[2]
in compliance with these provisions the First Respondent made such
rules which were approved, as provided in subsections (4)
and (5) of
section 7, by the Minister of Justice and Constitutional Development
(cited in this matter as the Second Respondent)
and Parliament, and
published by Government Notice R. 966 of 9 October 2009 in Government
Gazette No. 32622 of that date ("the
new rules").
[3]
In terms of Rule 1(1) of the new rules the rules will apply to
proceedings for judicial review in the High Court, the Labour
Court
or the magistrates' courts.
I
may, in passing, mention that, as far as I am aware, apart from the
High Court and the Labour Court, no other court currently
has
jurisdiction to hear and adjudicate upon applications for judicial
review. This seems to be acknowledged by the Second Respondent.
In
the answering affidavit filed on his behalf (record p. 157, para 12)
it is stated that one of the purposes of the new rules
was "to
make provision in general for applications in
any Court
that
might now or in the future have jurisdiction to deal with review of
administrative action under PAJA" (my underlining).
Apart
from the magistrate's courts, it is difficult, if not impossible, to
foresee on what other courts jurisdiction in this regard
may in
future be conferred.
it
would, perhaps, be advisable to have regard to the definition of
"court' in section 1 of the PAJA which reads as follows:
"'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 or an additional
magistrate designated in terms of section 9A, 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;".
I
assume, in so far as the Second Respondent has referred to "any
Court', that what he had in mind is, bearing in mind paragraph
(b)(i)
of that definition, a court having similar status as a High Court
(which may, I assume, be the Labour Court as I am not
aware of any
other court having similar status than the High Court).
Although
any word or expression defined in the PAJA bears in terms of Rule
2(1) the same meaning in the new rules, I assume, read
in context,
that it is not intended that the expression "court', wherever it
is used in the new rules, is to be read to include
the Constitutional
Court.
As
far as the magistrate's courts are concerned, I foresee a difficulty
in so far as it is envisaged in Rule 1(1) of the new rules
that the
rules should automatically apply to magistrate's court's if and when
magistrate's courts are designated as envisaged in
paragraph (b)(ii)
of the definition of "court' in section 1 of the PAJA. I am in
doubt whether it is correct to foreshadow
such a possibility in the
new rules as it is difficult to envisage at this stage exactly the
basis on, and manner in, which jurisdiction
in this regard may, if
ever, be extended to "any Court'.
In
my view it would be better to rather await the time that a
magistrate's court is designated as envisaged in paragraph (b)(ii)
of
the definition of "court' in section 1 of the PAJA and then to
consider in such an event the extension of these rules to
the
magistrate's courts and, perhaps, also an amendment to rule 65 of the
rules regulating the conduct of proceedings in the magistrate's
courts.
It
would seem to be advisable to omit subrule (1) of Rule 1 from the new
rules and to rather insert a definition of "court'
in Rule 2
defining the expression to mean a "High Court or the Labour
Court'.
[4]
Rule 1(4) of the new rules provides as follows:
"To the extent that
these rules do not provide for any matter regulated by the rules of
the court in which the proceedings
are instituted, those rules apply
in so far as they do not conflict with these rules, provided that -
(a) the rules relating to
applications and discovery apply subject to rules 8(2) and 12
respectively;
(b) Rules 53 of the
Uniform Rules of the High Court and Rule 7A of the Rules for the
Conduct of Proceedings in the Labour Court
no longer apply in
proceedings for judicial review."
[5]
Accordingly section 7(4) of the PAJA still applies which reads as
follows:
"Until the rules of
procedure referred to in subsection (3) come into operation, all
proceedings for judicial review under
this Act must be instituted in
a High Court or another court having jurisdiction".
[6]
The Applicant, Lawyers for Human Rights, represented by Mr Budlender,
together with Ms. Steinberg, now challenges the constitutionality
of
the new rules on the grounds thereof, briefly stated -
(a) that, in relation to
the manner in which the new rules amend Rule 53 of the Uniform Rules
(and also the more or less similar
provisions of Rule 7A of the Rules
for the Conduct of Proceedings in the Labour Court) the new rules are
inconsistent with sections
33, 34 and 23(1) of the Constitution; and
(b) that, furthermore,
the new rules are fatally flawed and unlawful in a series of other
respects (to which I refer below).
[7]
The application is opposed by the Second Respondent whilst the First
Respondent, except to state that its part in making the
new rules
does not amount to administrative action and is not susceptible to
review, resolved to abide this Court's decision. Notwithstanding
the
First Respondent's indication that it, subject to that limited
extent, abides the decision of this Court, Mr. Duminey SC, together
with Mr. Mphahlele, appeared, obviously in opposition to all the
relief claimed by the Applicant, on behalf of both Respondents.
[8]
In view of the aforegoing, I am called upon to consider-
(a)
firstly
, the
question whether the decisions taken by the two Respondents are
susceptible to review; and
(b) if so,
secondly
,
the question whether the new rules (or some of the new rules) are
unconstitutional for being inconsistent with the Constitution.
Question
whether the decisions of the First Respondent are susceptible to
review
[9]
It would appear that this question is triggered by the relief claimed
by the Applicant in prayers 1.1 and 1.2 of the Notice
of Motion in
which the Applicant seeks the review and setting aside of "the
decision of the first respondent to make the rules"
(prayer 1.1)
and "the decision of the second respondent to approve" the
new rules (prayer 1.2).
[10]
It is the Respondents' contention -
(a) that these decisions
do not constitute "administrative action" as defined in
section 1 of the PAJA, but are merely
steps in a process culminating
with the approval of Parliament under section 7(5) of that Act and
are not in themselves the making
of delegated legislation;
(b) that the decisions of
the Respondents plainly did not have external legal effects, nor did
they adversely affect the rights
of anyone as they were in themselves
ineffectual without the approval of Parliament in which the final
decision-making power reposes
whose legislative functions are in
terms of section 1 (dd) excluded from the definition of
"administrative action".
[11]
There was, in my view, indeed no decision, as envisaged in the
definition of "administrative action" in section 1
of the
PAJA, taken by the First Respondent to make the new rules since it is
enjoined in terms of section 7(3) if the PAJA to make
such rules.
[12]
Similarly, in the case of the Second Respondent, no decision in the
sense referred to in the definition of "administrative
action",
seems in my view to have been taken to approve the new rules since
the Second Respondent is likewise enjoined in
section 7(4) of the
PAJA to approve the new rules.
[13]
The so-called "decision" taken to make the new rules or to
approve such rules does not in itself adversely affects
the rights of
any person. It is the new rules, if and when put into operation, that
may or may not have such an effect. Whether
or not the new rules have
such an effect is in my view to be determined by considering the
effect and impact of the new rules on
any fundamental rights of any
person affected in the application of the rules.
[14]
The real question, therefore, in my view is whether the new rules,
being in effect delegated legislation made by the First
Respondent
and eventually approved by the Second Respondent and Parliament (and,
therefore, a "law" referred to in section
172(1 )(a) of the
Constitution) can be held, as provided in that section to be
inconsistent with the Constitution and, therefore,
to be
unconstitutional, unlawful and invalid to the extent of such
inconsistency, being a consideration which renders the new rules
subject to judicial review on the doctrine of legality.
[15]
I am accordingly in agreement with the submission made on behalf of
the Respondents that all I need to consider in the circumstances
is
whether or not an order should, on the principle of legality, be
granted more or less in the terms set out in prayer 3.
[16]
This brings me to the disputes on the consistency or otherwise of the
new rules with the Constitution as is claimed, particularly,
in
prayer 3 of the Notice of Motion.
[17]
In prayer 3 of the amended Notice of Motion (record p. 2a) the
Applicant claims an order in terms of which it is declared -
(a)
that Rule 4 of the new rules, read with the definition of "relevant
document in Rule 2, is inconsistent with the Constitution
and,
therefore, unlawful and invalid (prayer 3.1);
(b)
that to remedy the defects in Rule 4 (read with the definition of
"relevant documents") the definition of "relevant
documents" is to be read as though it provides as follows:
"'relevant
document' means a document that was before the administrator when the
administrator took the decision sought to
be reviewed;" (prayer
3.2);
(c) that Rules 3(5}(e),
4(4) and (7) and 7(3){e) and (f) of the new rules are inconsistent
with the Constitution and, therefore,
unlawful and invalid (prayers
3.3, 3.4, 3.5, 3.7 and 3.8);
(d) that Rule 7 of the
new rules is inconsistent with the Constitution and, therefore,
unlawful and invalid, to the extent that
it fails to make provision
for a requester to compel an administrator to grant access to a
document specified in Part 2 of Schedule
A to Form D (prayer 3.S);
(e) that the new rules
are inconsistent with the Constitution and, therefore, unlawful and
invalid, to the extent that they fail
to provide for any mechanism
whereby a private respondent (apparently one cited in addition to the
administrator or state respondent)
in an application for judicial
review can obtain access to the record of, and reasons for, the
decision in question (prayer 3.9).
[18]
These prayers call for an overview of the provisions of Uniform Rule
53 and Labour Court Rule 7A and the various provisions
contained in
the new rules.
The
provisions of Rules 53 and 7A
[19]
Uniform Rule 53 provides as follows:
" 53. (1) Save where
any law otherwise provides, all proceedings to bring under review the
decision or proceedings of any inferior
court and of any tribunal,
board or officer performing judicial, quasi-judicial or
administrative functions shall be by way of
notice
of
motion directed and delivered by the party seeking to review such
decision or proceedings to the magistrate, presiding officer
or
chairman of the court, tribunal or board or to the officer, as the
case may be, and to all other parties affected-fa) calling
upon such
persons to show cause why such decision or proceedings should not be
reviewed and corrected or set aside, and
(b)
calling upon the magistrate, presiding officer, chairman or officer,
as the case may be, to despatch, within fifteen days after
receipt of
the notice of motion, to the registrar the record of such proceedings
sought to be corrected or set aside, together
with such reasons as he
is by law required or desires to give or make, and to notify the
applicant that he has done so.
(2)
The notice of motion shall set out the decision or proceedings sought
to be reviewed and shall be supported by affidavit setting
out the
grounds and the facts and circumstances upon which applicant relies
to have the decision or proceedings set aside or corrected.
(3)
The registrar shall make available to the applicant the record
despatched to him as aforesaid upon such terms as the registrar
thinks appropriate to ensure its safety, and the applicant shall
thereupon cause copies of such portions of the record as may be
necessary for the purposes of the review to be made and shall furnish
the registrar with two copies and each of the other parties
with one
copy thereof, in each case certified by the applicant as true copies.
The costs of transcription, if any, shall be borne
by the applicant
and shall be costs in the cause.
(4)
The applicant may within ten days after the registrar has made the
record available to him, by delivery of a notice and accompanying
affidavit, amend, add to or vary the terms of his notice of motion
and supplement the supporting affidavit.
(5)
Should the presiding officer, chairman or officer, as the case may
be, or any pady affected desire to oppose the granting of
the order
prayed in the notice of motion, he shall-
(a)
within fifteen days after receipt by him of the notice of motion or
any amendment thereof deliver notice to the applicant that
he intends
so to oppose and shall in such notice appoint an address within eight
kilometres of the office of the registrar at which
he will accept
notice and service of all process in such proceedings; and
(b) within thirty days
after the expiry of the time referred to in subrule (4) hereof,
deliver any affidavits he may desire in answer
to the allegations
made by the applicant.
(6) The applicant shall
have the rights and obligations in regard to replying affidavits set
out in rule 6.
(7) The provisions of
rule 6 as to set down of applications shall mutatis mutandis apply to
the set down of review proceedings."
[20]
Labour Court Rule 7A provides as follows:
" 7A. (1) A party
desiring to review a decision or proceedings of a body or person
performing a reviewable function justiciable
by the court must
deliver a notice of motion to the person or body and to all other
affected parties.
(2)
The notice of motion must -
(a)
call upon the person or body to show cause why the decision or
proceedings should not be reviewed and corrected or set aside;
(b)
call upon the person or body to dispatch, within 10 days after
receipt of the notice of motion, to the registrar, the record
of the
proceedings sought to be corrected or set aside, together with such
reasons as are required by law or desirable to provide,
and to notify
the applicant that this has been done; and
(c)
be supported by an affidavit setting out the factual and legal
grounds upon which the applicant relies to have the decision
or
proceedings corrected or set aside.
(3)
The person or body upon whom a notice of motion in terms of subrule
(2) is served must timeously comply with the direction in
the notice
of motion.
(4)
If the person or body fails to comply with the direction or fails to
apply for an extension of time to do so, any interested
party may
apply, on notice, for an order compelling compliance with the
direction.
(5)
The registrar must make available to the applicant the record which
is received on such terms as the registrar thinks appropriate
to
ensure its safety. The applicant must make copies of such portions of
the record as may be necessary for the purposes of the
review and
certify each copy as true and correct.
(6)
The applicant must furnish the registrar and each of the other
parties with a copy of the record or portion of the record, as
the
case may be, and a copy of the reasons filed by the person or body.
(7)
The costs of transcription of the record, copying and delivery of the
record and reasons, if any, must be paid by the applicant
and then
become costs in the cause.
(8) The applicant must
within 10 days after the registrar has made the record available
either-
(a) by delivery of a
notice and accompanying affidavit, amend, add to or vary the terms of
the notice of motion and supplement the
supporting affidavit: or
(b) deliver a notice that
the applicant stands by its notice of motion.
(9)
Any person wishing to oppose the granting of the order prayed in the
notice of motion must, within 10 days after receipt of
the notice of
amendment or notice that the applicant stands by its notice of
motion, deliver an affidavit in answer to the allegations
made by the
applicant.
(10)
The applicant may file a replying affidavit within 5 days after
receipt of an answering affidavit".
[21]
The following, as is apparent from these two more or less similar
Rules, should for purposes of this matter be highlighted,
namely -
(a)
any person seeking an order reviewing and setting aside a decision or
proceedings of, inter alia, any tribunal, board or officer
performing
judicial, quasi judicial or administrative functions (or, in the case
of Rule 7A, a person or body performing reviewable
functions), being
functionaries included in the definition of "administrator"
in section 1 of the PAJA (to whom or which
I will, for the sake of
convenience, wherever I refer to Rule 53 or Rule 7A, hereinafter
refer to as "an administrator"
or "the
administrator"), shall bring an application for such an order by
way of notice of motion setting out the decision
or proceedings
sought to be reviewed and set aside, supported by an affidavit
setting out the grounds and the facts and circumstances
upon which
the applicant relies for the order sought;
(b)
such person shall call upon the administrator to dispatch within 15
days to the registrar the "record of proceedings"
sought to
be reviewed and set aside, together with such reasons as the
administrator is by law required to give and to notify the
applicant
that it has been done;
(c)
the registrar shall upon receipt of the record of proceedings make it
available to the applicant, whereupon, the applicant may
cause copies
of such portions of the record as may be necessary for purposes of
the review and shall, thereupon, furnish the registrar
and each of
the other parties of copies of the record (the costs of which shall
be borne by the applicant, but shall be costs in
the cause);
(d)
the applicant may, thereupon, within 10 days, amend, add to or vary
the terms of the notice of motion and supplement the supporting
affidavit;
(e)
thereupon, the administrator or any other party affected that wishes
to oppose the application may, within the periods specified
in the
Rule, deliver a notice of intention to oppose and affidavits in
answer to the allegations made by the applicant;
(f)
thereafter the applicant shall have the right to deliver replying
affidavits.
[22]
I deem it expedient at this stage to refer to a few decisions in
which our Courts have dealt with the purpose, need and effect
of the
provisions of, particularly, Rule 53.
In
Jockey Club of SA v Forbes
[1992] ZASCA 237
;
1993 (1) SA 649
(A) at 662F Kriegler AJA
(as he then was) remarked as follows on the purpose of Rule 53:
"The
purpose of Rule 53 is not to protect the 'decision-maker' but to
facilitate applications for review and to ensure their
speedy and
orderly presentation. Such benefits as it may confer on a respondent,
in contradistinction to those ordinarily enjoyed
by a respondent
under Rule 6, are incidental and minor. It confers real benefits on
the applicant, benefits which he may enjoy
if and to the extent
needed in his particular circumstances".
At
660D he further held as follows:
"Not infrequently
the private citizen _ is faced with an administrative or
quasi-judicial decision adversely affecting his
rights, but has no
access to the record of the relevant proceedings nor any knowledge of
the reasons founding such decision. Were
it not for Rule 53 he would
be obliged to launch review proceedings in the dark and, depending on
the answering affidavit(s) of
the respondent(s), he could then apply
to amend his notice of motion and to supplement his founding
affidavit. Manifestly the procedure
created by the Rule is to his
advantage in that it obviates the delay and expense of an application
to amend and provides him with
access to the record. ....The Rule
thus confers the benefit that all the parties have identical copies
of the relevant documents
on which to draft their affidavits and that
they and the Court have identical papers before them when the matter
comes to Court.)
More important in the present context is subrule
(4), which enables the applicant, as of right and without the expense
and delay
of an interlocutory application, to 'amend, add to or vary
the terms of his notice of motion and supplement the supporting
affidavit'.
Subrule (5) in turn regulates the procedure to be adopted
by prospective opponents and the succeeding subrules import the usual
procedure under Rule 6 for the filing of the applicant's reply and
for set down.".
In
Johannesburg City Council v The Administrator, Transvaal and Another
(1)
1970 (2) SA 89
(T), the Court described a Rule 53 "record of
proceedings" as follows at 91G - 92A:
"The
words 'record of proceedings' cannot be otherwise construed, in my
view, than as a loose description of the documents,
evidence,
arguments and other information before the tribunal relating to the
matter under review, at the time of the making of
the decision in
question. It may be a formal record and dossier of what has happened
before the tribunal, but it may also be a
disjointed indication of
the material that was at the tribunal's disposal. In the latter case
it would, I venture to think, include
every scrap of paper throwing
light, however indirectly, on what the proceedings were, both
procedurally and evidentially. A record
of proceedings is analogous
to the record of proceedings in a court of law which quite clearly
does not include a record of the
deliberations subsequent to the
receiving of the evidence and preceding the announcement of the
court's decision. Thus the deliberations
of the Executive Committee
are as little part of the record of proceedings as the private
deliberations of the jury or of the Court
in a case before it. It
does, however, include all the documents before the Executive
Committee as well as all documents which
are by reference
incorporated in the file before if."
In
Johannesburg City Council, supra, it was also indicated at 93F that
an applicant's reliance on the record of the proceedings
before it
finalizes its grounds of review should not be construed as a "fishing
excursion", but as a legitimate endeavour
"to determine
objectively what considerations were probably operative in the minds
of the Administrator (the decision-maker)....
when they passed the
resolution in question* (see also: Afrisun Mpumalanga (Pty) Ltd v
Kunene NO
1999 (2) SA 599
(T) at 632F-G; SACCAWU v President,
Industrial Tribunal
[2000] ZASCA 163
;
2001 (2) SA 277
(SCA) at 28Qf).
[23]
From these decisions it is indisputably clear that the Courts have
regarded the provisions of Rule 53 as an important tool in
determining, on equal footing, disputes between an applicant and,
particularly, a state respondent, the lawfulness and fairness
of any
administrative action which is mostly taken, so to speak, behind
closed doors.
The
new rules
[24]
Rule 3, read with Forms A and B to the new rules, provides -
(a) for the rights of
any person (described, apparently, in accordance with the provisions
of the Promotion of Access to Information
Act, 2000 (Act 2 of 2000),
as a "requester") whose rights have materially and
adversely been affected by administrative
action, to request an
administrator to furnish written reasons for the action taken
(subrule (1));
(b) the procedure to be
followed by a requester to obtain, and the administrator to furnish,
such reasons (subrules (2), (3) and
(4);
(c) the grounds on which
an administrator may refuse a request for reasons (subrule (5)).
In
passing, I may mention that Rule 3 seems to me to be in many ways an
unnecessary (and, on the risk of creating ambiguities between
the
provisions of the Act and the rules, perhaps, wrong or an
unauthorized) re-enactment of the provisions of sections 5 and
9
of the PAJA and, furthermore, seems to overlap with the provisions of
regulations 26, 27 and 28 of the regulations made under
section 10 of
the PAJA. In terms of section 5(1) of the PAJA, as is provided in
Rule 3(1 )(a) of the new rules, any "person
whose rights have
been materially and adversely affected by administrative action"
may request that an administrator furnish
written reasons for the
action, whereupon, the administrator must, as provided in section
5(2) of the PAJA, within 90 days give
that person adequate reasons in
writing for the administrative action. In terms of section 9 of the
PAJA, as provided in Rule 3(1)(b),
the period of 90 days may by
agreement between the parties be reduced.
In
terms of Rule 3(2) an administrator is required to respond within 10
days as from the date of receipt of the request by informing
such
person whether the request is acceded to or declined. It would seem
that this is a provision which is in effect aimed at adding
an
additional obligation on an administrator in addition to the
obligations placed on an administrator in terms of section 5 of
the
PAJA. It is highly doubtful whether the First Respondent is empowered
to effect such an amendment to the PAJA and in any event
seems to be
a provision which has no legal effect.
Rule
3(5) deals with the grounds on which an administrator can refuse to
furnish any reasons which is a departure as is contemplated
in
section 5(4) of the PAJA which provides that 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.
However,
Rule 5 purports to set out grounds on which an administrator may
refuse a request for reasons. The question that can be
asked is
whether such a provision is strictly necessary. Paragraph (a) of
subrule (5) in so far as it authorizes an administrator
to refuse a
request for reasons if written reasons had already been furnish,
actually speaks for itself, it is not clear under
what circumstances
written reasons may be publicly available as envisaged in paragraph
(b) of that subrule and in any event even
if reasons are so
available, I fail to see why such reasons cannot any way be made
available by the administrator to an applicant.
Paragraph (c), in so
far as it authorizes an administrator to refuse a request for reasons
if the applicant is not a person whose
rights are materially and
adversely affected, also speaks for itself since it is indeed a
prerequisite laid down in section 5(1)
of the PAJA for the right to
reasons. Likewise paragraph (d) providing that an administrator may
refuse if it is reasonably or
justifiable to depart from the
requirement to give reasons, is an unnecessary provision as section
5(4) of the PAJA contains a
similar provision.
For
these reasons it seems to me that generally the provisions of Rule 3
is, in view of the similar nature of section 5 of the PAJA,
an
unnecessary provision which need not (and, perhaps, should not) be
contained in rules providing for judicial review.
[25]
Rule 4, read with Forms C and D to the new rules, provides for a
pre-litigation procedure in terms of which -
(a) a person intending to
institute an application for judicial review may request an
administrator to furnish a list of "relevant
documents" as
defined in Rule 2 and to agree to certain actions to either resolve
the matter or to proceed with the intended
application (subrule (1));
(b)
it is prescribed that such a request should be made in accordance
with Form C to the new rules within the period specified therein
(subrules (2) and (3));
(c)
an administrator is authorized to refuse to furnish a list of
relevant documents if there are "valid grounds for the refusal"
(subrule (4));
(d)
an administrator is called upon to furnish such list within 30 days
of receipt of the request in accordance with Form D to the
new rules
or to notify the requester of his refusal to do so, together with
reasons in accordance with Form E to the new rules
(subrule (5));
(e)
an administrator is called upon to allow a requester to inspect the
documents specified in Part 1 (and not Part 2) of Schedule
A to Form
D and to make copies of such documents at the fee prescribed under
the Promotion of Access to Information Act, 2000 (subrule
(6));
(f)
an administrator is authorized to refuse to allow a requester to
inspect and copy documents specified in Part 2 of Schedule
A to Form
D (subrule (7)).
I
may, again in passing, at this stage in relation to the overall
effect of this Rule, mention that, as was pointed out to me in
argument on behalf of the Applicant, that any person, whether he, she
or it has an interest in any information held by the State,
has, in
terms of the provisions of the
Promotion of Access to Information
Act, 2000
, subject to a few limitations, the right of access to "a
record of a public body" or, in, perhaps, the case of an
application
instituted in the Labour Court, a "private bod/
{see: inter alia,
sections 11
and
50
).
In
so far as a "requester may in terms of
Rule 4
for any reason
other than a reason provided for in Chapter 4 of that Act be refused
access to any document or information, the
Rule seems to be in
conflict with the provisions of the
Promotion of Access to
Information Act, 2000
.
In
view of the provisions of the
Promotion of Access to Information Act,
2000
, it is uncertain whether a provision such as
Rule 4
is in any
event necessary to be included in the new rules. It would appear that
there are sufficient provision in the PAJA and
the
Promotion of
Access to Information Act, 2000
, to obtain an administrator's reasons
for a decision taken and to obtain access to documents and
information held by an administrator
in relation to a decision taken
which may be the subject matter of an application for judicial
review. In this regard reference
should be made to the following
extract from a recent judgment in Industrial Development Corporation
of South Africa Limited v
PFE International Inc (BVI),
[2011] ZASCA
245
at para
[15]
:
"The
contention advanced on behalf of the respondents that PAIA was
intended to supplement the rules of court, cannot be sustained.
First,
s 7
does not express such an intention. In fact, the section
says the opposite. Second, and as has already been mentioned, and on
this
court's interpretation of
s 7
, it was the intention of the
Legislature that requests for access to information made for the
purpose of litigation, and after
litigation has commenced, should be
regulated by the applicable court rules.
Third, to create a dual
system of access to information, in terms of both PAIA and the
particular court rules, has the potential
to be extremely disruptive
to court proceedings, as is evidenced by this matter
." (My
underlining).
[26]
In terms of
Rule 5
a requester may apply to court by way of notice of
motion for the variation of the time periods specified in the new
rules in cases
where the administrator failed to respond, or refused
to agree, to a request in terms of
Rule 4(1
)(b) for the variation of
the time periods.
[27]
Rule 6
provides for applications by a requesters by way of notice of
motion for orders to compel an administrator to furnish reasons for
actions taken by him, her or it in cases where the administrator
fails to respond to a request for reasons or refused to give reasons.
[28]
Rule 7
-
(a) provides for
applications by way of notice of motion to compel, in cases where the
administrator failed to respond to a request
to furnish a list of
"relevant documents" or refused to furnish such a list or
failed or refused to grant access to a
document specified in
Part 1
of Schedule A to Form D (subrules (1) and (2));
(b)
deals with the grounds on which a court may grant any such
application, namely, where it is satisfied -
(i) that the applicant
has legal standing (subrule (3)(a));
(ii) that the applicant
has exhausted his, her or its internal remedies (subrule (3){b));
(iii)
that he, she or it has made a request in terms of
Rule 4(1)
(subrule
(3)(c));
(iv) that the application
has been made within 15 days of the notification or refusal (subrule
(3}{d));
(v)
that there are prima facie grounds for the intended review (subrule
(3)(e));
(vi)
that the documents are necessary for the intended review (subrule
(3)(f)).
I
may, once again in passing, in relation to the application of this
Rule, read with
Rules 4
and
8
, mention the following which, in
comparison with
Rule 53
(and
Rule 7A)
, occurred to me in the course
of argument.
On
the one hand
Rule 53
(and
Rule 7A)
provide for the disclosure or
dispatching by an administrator of the "record of proceedings"
and the furnishing of reasons
within 15 days (or, in the case of
Rule
7A
,
10
days) after receipt of the notice of motion.
On
the other hand,
Rules 4
and
7
of the new rules, being the Rules which
are the subject of the Applicant's main attack, deal with the
disclosure of so-called "relevant
documents" at a
pre-litigation stage. It is actually
Rule 8
which deals with the
stage when judicial review proceedings are actually initiated which
contains no reference to "relevant
documents". The
provisions of
Rules 4
and
7
(and
Rule 3)
make it in most cases
virtually impossible for an applicant to bring an application under
Rule 8
, before he, she or it invoked the provisions of those Rules -
(a)
by first requesting in accordance with
Rule 3
an administrator's
reasons for the administrative action taken;
(b)
thereafter or, perhaps, simultaneously in accordance with
Rule 4
requesting (setting out any grounds on which he, she or it intends to
bring an application for judicial review) the administrator
to
furnish him, her or it with a list of documents that "relate
direct!/' to any ground of review upon which he, she or it
intends to
rely in proceedings for judicial review (which may be instituted in
terms of
Rule 8)
; and
(c)
then to request an opportunity to inspect and copy the documents
contained in the list, limited to the documents specified in
Part 1
of Form D.
Apart
from the delays in following this procedure and, in so far as the
administrator may fail or refuse to comply, to first bring
an
application to compel, it is unimaginable as to how an applicant will
ever be able to bring, as so often happens, an application
for
judicial review as a matter of urgency.
As
opposed to this cumbersome procedure, the procedure provided by
Rule
53
(or
Rule 7A)
has over the years rendered no difficulties in this
regard in that an applicant may approach the Court by way of a Rule
nisi with
interim relief calling upon the administrator to dispatch
in due course the record of the proceedings and to furnish his, her
or
its reasons for the decisions subjected to review.
[29]
Rules 8
and
9
, read with Form F to the new rules, provide for a
procedure in terms of which an applicant may bring by way of notice
of motion
in accordance with the said Form F an application for
judicial review of an administrative action and the opposition to any
such
application and the filing of opposing and replying affidavits.
[30]
Rule 10
provides for the form in which affidavits should be drafted.
[31]
Rule 11
provides for the attendance of conferences in chambers of
judicial officers.
[32]
Rule 12
provides for the discovery of documents during proceedings in
accordance with the rules of court.
[33]
Rule 13
provides for the preparation of bundles of documents.
[34]
Rule 14
provides for directions which may be given by the court.
[35]
Rule 15
provides for the commencement of the new rules on a date to
be fixed by the Second Respondent by notice in the Gazette.
(I
may mention that no such date has, as yet, been fixed and that it
would appear that the Second Respondent agreed not to fix such
a date
until such time as this matter is finally disposed of)
[36]
As far as the general impact of the new rules is concerned, it seems
to me that the new rules seem to have lost sight of the
fact that
judicial review applications are limited to applications under the
PAJA.
[37]
As is apparent from the definition of "administrative action"
in section 1 of the Act the new rules will obviously
not apply in
relation to -
(a)
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;
(b)
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;
(c) the executive powers
or functions of a municipal council;
(d)
the legislative functions of Parliament, a provincial legislature or
a municipal council;
(e)
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;
(f) a decision to
institute or continue a prosecution;
(g)
a decision relating to any aspect regarding the nomination, selection
or appointment of a judicial officer or any other person,
by the
Judicial Service Commission in terms of any law;
(h)
any decision taken, or failure to take a decision, in terms of any
provision of the
Promotion of Access to Information Act, 2000
; or
(i)
any decision taken, or failure to take a decision, in terms of
section 4
(1).
[38]
The fact that these actions do not constitute "administrative
action" in the defined meaning of the expression, does
not mean
that such actions are not reviewable.
They
may still be reviewable under the rule of law or the principle of
legality where the functionary, inter alia, acts in bad faith,
misconstrues the nature of its powers or acts arbitrarily or
irrationally (President of the RSA v Hugo
1997 (4) SA 1
(CC) at 17G,
para [29]).
[39]
Rule 53
(and, perhaps,
Rule 7A)
was at all times applicable to the
review of "administrative action" as defined as well as the
review of the actions
excluded by the definition under the rule of
law or the principle of legality.
[40]
l fail to understand the need for the differentiation created by the
new rules in respect of the review of "administrative
action"
as provided in the PAJA, on the one hand, and the review of the
actions excluded from the definition on te principle
of legality, on
the other.
[41]
In an article by Geo Quinot entitled "New procedures for the
judicial review of administrative action" published
in (2010) 25
South African Public Law, 646 at
651
the learned author said the following in this regard:
"For
PAJA reviews an applicant will be obliged to follow the PAJA
procedure and
Rule 53
will not be available, while for non-PAJA
reviews
Rule 53
will stilt be available and the PAJA rules obviously
not. The
Rule 53
route will ostensibly be the one to follow in
reviews based on legality as opposed to strict PAJA reviews, eg when
reviewing policy
conduct of high executive official that do not
qualify as 'administrative action' under the PAJA.
This
state of affairs may create some practical problems. It is now fairly
common to find applicants relying on constitutional legality
and the
PAJA in the alternative when bringing review applications. This is
especially the case when it is not clear at the outset
whether the
action under the action under scrutiny amounts to administrative
action or where a range of public actions are challenged
some of
which may qualify as administrative action as defined while others
may not. Applicants can hardly be faulted for such an
approach given
the complexities and uncertainty surrounding the definition of
administrative action. Legality has as a result been
described as a
kind of 'safety net' that captures exercises of public power, which
do not qualify as administrative action, but
are nevertheless subject
to judicial review. In a number of judgments, judges have also
adopted such an approach. The problem that
now emerges from the
creation of the new rules of review applications solely on either
legality or the PAJA. Since the procedure
for bringing review
applications on these distinct bases will differ, it becomes
considerably more difficult to use them in the
alternative.".
[42]
I can now turn to the Applicant's attacks against the new rules and
the Respondents' response to those attacks, as set out
in the
answering affidavit filed on behalf of the Second Respondent.
Applicant's
main attack on the new rules
[43]
The Applicant's concern in this regard is, as is apparent from
prayers 3.1 and 3.2 of the amended Notice of Motion, that the
new
rules, read with the definition of "relevant documents",
are inconsistent with sections 32, 33, 34 and 23(1) of the
Constitution in that -
(a)
they removed the right of an applicant to request, and the duty of an
administrator to provide, the full or complete "record
of the
proceedings" to an applicant;
(b)
having removed the rights and obligations provided for in Rule 53
(and in Rule 7A), the new rules now provide that a person
intending
to bring an application
for
judicial review must, in order to obtain documents directly relevant
to his, her or its grounds of review, first, at a pre-litigation
stage, set out his, her or its grounds of review in Form D;
(c)
thereby the applicant is deprived of the right of obtaining any other
documents that were before the administrator which may
disclose
further grounds of review of which the applicant would, because of
the manner in which administrative actions are ordinarily
taken, not
otherwise have been aware;
(d)
as opposed to an applicant's rights in terms of Rule 53 (or Rule 7A),
the applicant will, after having obtained a list of the
so-called
"relevant documents" be bound to finalize his, her or its
notice of motion and founding affidavit and to then
run the case as a
whole without the full record;
(e)
an administrator is, furthermore, even in respect of "relevant
documents", not obliged to accede to an applicant's
request for
the relevant documents;
(f)
in such an event an applicant has, if he, she or it deems such
documents to be relevant to its case, no other option than to
approach the Court with an application to compel the administrator to
provide him, her or it with such documents.
[44]
in response to the Applicant's attack in this regard, it is the
Respondents' contention -
(a) that, taking into
consideration experience gained in, particularly, the State
Attorney's office in relation to review applications,
the First
Respondent sought to provide in the new rules a procedure that would
in the great majority of cases provide an aggrieved
applicant with a
relatively easy and simple way of gaining pre-litigation access to
reasons for a disputed administrative action
(as provided in Rule 3)
and the documents relevant to the cause of dissatisfaction (as
provided in Rule 4) and would put such an
applicant in a position to
decide whether to persist with bringing an application for review or
not to proceed;
(b) that the Second
Respondent, in, I assume, approving the new rules, endeavoured to
render judicial review as an efficient and
cost-effective tool for
achieving administrative justice on the principle that relevant
documents should all be made available,
but that the wasting of time
and costs in dealing with unnecessary documents should be
discouraged;
(c) that the Applicant's
case, in so far as it is based on the notions (a) that the record
under Rule 53 (or Rule 7A) includes every
"scrap of paper"
throwing light on what the proceedings were; and (b) that under those
Rules the entire record is put
before the Court, is exaggerated and
incorrect since the full record does not always go to the Court in
terms of Rule 53 (or Rule
7A) as the record is in terms of those
Rules made available to the applicant who may select the portions he,
she or it considers
necessary and only those go to the Court and the
other parties;
(d) that the Applicant's
case that limiting the duty of disclosure under the new rules is
unconstitutional and unlawful, is also
not valid or justified since,
if there is a genuine issue about the disclosure of a document that
cannot be resolved under the
new rules, the ordinary rules of
discovery, in the case of applications, particularly, Rule 35(13)
(or, I assume, Labour Court
Rule 6(4)(b)), remain in reserve.
Applicant's
attack on specific provisions of the new rules
[45]
In this regard, referring to Rules 3(5)(e), 4(4), 4(6) and 7 and
7(3)(e) and (f), it s contended -
(a) in relation to Rule
3(5)(e) which provides that an administrator may, in addition to four
grounds the nature of which is clearly
spelled out in paragraphs (a)
to (d) of that Rule, refuse a request to furnish reasons for a
decision taken "on any other
valid ground', that it provides no
guidance to an administrator as to what may or may not be a "valid
ground' and that it
is otherwise impermissibly vague;
(b) in relation to Rule
4(4) which provides that an administrator may refuse to furnish a
list of "relevant documents"
if there are "valid
grounds" for the refusal, that similarly it provides no guidance
to an administrator as to what may
or may not be a "valid
ground' and that it is otherwise impermissibly vague;
(c) in relation to
(i) Rule 4(7) which
provides that an administrator may refuse to allow an applicant to
inspect and copy documents specified in Part
2 of Schedule A to Form
D, that no provision is made as to when documents may legitimately be
placed in Part 2 of the said Schedule
A;
(ii) Rule 7 which
provides for applications by an applicant to apply for an order
compelling an administrator, inter alia, to grant
access to a
document specified in Part 1 of Schedule A to Form D, that no
provision is made for a similar application in respect
of documents
specified in Part 2, being documents placed, as I have already
indicated, by an administrator in his, her or its own
discretion in
that Part;
(d) in relation to Rule
7(3)(e) and (f) which provides for a court to order an administrator
to furnish a list of relevant documents
or access to a document
specified in Part 1 if it is satisfied, inter alia, that there are
prima facie grounds for the intended
review of the administrative
action (paragraph (e)) and that the documents are necessary for the
intended review (paragraph (f)),
that (a) a requirement that an
applicant must show prima facie grounds for the intended review
before obtaining documents; and
(b) a requirement that an applicant
must show that certain documents are necessary for an intended review
without having had sight
of the documents are inconsistent with
sections 32, 33, 34 and 23 of the Constitution.
[46]
In response to these attacks it is the Respondents' response -
(a) in relation to the
Applicant's objections against Rule 3(5){e), that it is patently
incorrect to submit that the provision violates
sections 33,34 and
23(1) and even section 195(1 )(f) of the Constitution as an
administrator is authorized to refuse reasons for
a "valid
reason" and that there is no requirement that a provision of
this nature must give guidance on determining the
validity of other
grounds and that ultimately there is judicial control over the
process;
(b) in relation to the
Applicant's objections against Rule 4(4), that the requirement that
the grounds for refusal must be valid,
refutes the objection raised
by the Applicant since an applicant is in any event entitled to bring
in terms of Rule 7 an application
to compel the administrator to
furnish the list and that, in so far as this would slow down the
judicial review process, it is
regrettable, but does not render the
provision unconstitutional;
(c)
in relation to the Applicant's objections against Rule 4(7) -
(i) that the objection
overlooks the provisions of Rule 12 providing for the continuance of
the rules relating to discovery of documents
in motion proceedings;
and
(ii) that the position is
no different to those of an applicant under Uniform Rule 35 (and
Labour Court Rule 6(4)) where documents
are listed in the
confidential section of a discovery schedule and where there is an
application to compel production;
(d) in relation to the
Applicant's objections against Rule 7, that, as submitted in the case
of Rule 4(7), that the objection overlooks
the provisions of Rule 12
providing for the continuance of the rules relating to discovery of
documents in motion proceedings;
(e) in relation to the
Applicant's objections against Rule 7(3)(e) and (f), that (a) the
Applicant's argument seeks to shore up
a right to institute unfounded
review applications which are somehow to be justified subsequently by
delving through the record;
and (b) the Applicant's objection also
overlooks the provisions of Rule 12 that keeps the rules of court
relating to discovery
in tact.
The
Applicant's attack relating to the private respondent
[47]
In this regard it is the Applicant's concern -
(a)
that no provision is made for the private respondent as he or she is,
like the applicant, in no position to consider the record
to defend
the validity of the decision and may in certain scenarios even be
worse off than the applicant; and
(b)
that, if the rights of another member of the public were involved,
he, she or it may even be worse off than the applicant in
that he,
she or it may, for example, find himself, herself or itself at the
mercy of the state decision-maker if he, she or it
chooses to abide
by the review proceedings and will have to defend a decision of which
he, she or it was not the author and of
which he, she or it has no
knowledge.
[48]
In response to the Applicant's attack it is the Respondents'
contention that Rule 53 (or Rule 7A) also makes no such provision
and
that the Applicant identified no right or constitutional principle
which is infringed by not making provision for the proposed
mechanism
in the new rules.
Evaluation
of the submissions made on behalf of the parties
[49]
in considering the issues involved in this matter, I will deal with
the submissions in the same order as the matter was approached
by the
parties.
Firstly
,
Applicant's main attack on the new rules
[50]
As is apparent from what I have already indicated, it leaves no doubt
that the new rules effected a dramatic and drastic change
to the
procedure as provided in Rule 53 (and, of course, also Rule 7A).
[51]
The question is, however, whether this change constitutes an
infringement of any of the relevant fundamental rights.
[52]
The new rules obviously deviate from Rule 53 (and Rule 7A) in various
material respects, namely -
(a) it removes the right
of an applicant, as provided in Rule 53 (and Rule 7A) to request an
administrator, at the institution of
an application for judicial
review of administrative action taken, to furnish the full record of
the proceedings relating to the
decision sought to be reviewed,
together with the reasons for such action;
(b) instead in terms of
the new rules an applicant may, at a pre-litigation stage, request an
administrator to furnish reasons for
administrative action taken
(Rule 3) and to furnish a list of "relevant documents"
(Rule 4) (which, per definition, are
only those documents which
directly relates to a ground of judicial review and which must be
specified in Form C requesting the
list of relevant documents).
[53]
The new rules are obviously based on an assumption or understanding
that an applicant will or should be in a position to know
exactly on
what grounds any application for judicial review can be instituted
before having had sight of any documents or information
on which the
administrative action has been taken. Such an assumption or
understanding is obviously in many, if not in the majority,
of cases
clearly wrong. It is common knowledge that administrative action is
more than often taken, so to speak, behind closed
doors. An applicant
for a request for a list of relevant documents will in those cases
have to second-guess all the grounds on
which the administrative
action in question can be subjected to judicial review. It will then
be on that basis that an administrator
will have to determine what
documents are directly relevant to the grounds so second-guessed by
the applicant (and not, as is currently
provided in Rule 53 *and Rule
7A, relevant to the decision taken), no matter whether there are any
other documents that may disclose
any further grounds of judicial
review of which the applicant can impossibly be aware of. In the
result such documents or information
will remain unfairly and
unjustifiably in a veil of secrecy
In
this regard I can refer to President of the Republic of South Africa
vM &G Media Ltd
[2011] ZACC 32
at para 10 in which it was held as
follows:
"The constitutional
guarantee of the right to access to information held by the state
gives effect to accountability, responsiveness
and openness as
founding values of our constitutional democracy, it is impossible to
hold accountable a government that operates
in secrecy. The right to
access to information is also crucial to the realisation of other
rights in the Bill of Rights".
[54]
The result is, apart from in effect suppressing transparency of
actions taken by administrators -
(a) that an applicant is
deprived of a right of access to all information held by an
administrator entrenched in section 32 of the
Constitution (and duly
provided for in the provisions of the Promotion to Access of
Information Act, 2000), and instead the administrator
is given the
sole discretion to decide what is to be provided to the applicant as
being relevant to his, her or its grounds of
review formulated at a
stage before he, she or it has had sight of any documents or
information relating to the decision taken;
(b) that an applicant is,
not having granted access to documents relating to the decision
taken, denied a right to fair administrative
justice entrenched in
section
33 of the Constitution;
(c) that, in relation to
the right to institute an application for judicial review in the
Labour Court, an applicant is denied the
right to fair labour
practices in so far as he or she had not been provided with all the
documents and information held by either
the state or private body
concerned.
[55]
The next question is whether the Respondents' actions in having made,
and having approved of, the new rules can be justified
under section
36 of the Constitution.
[56]
As already indicated, the Respondents defend this aspect of the new
rules primarily on the basis -
(a)
that they would render the process of judicial review more efficient
and less costly;
(b)
that the entire record does not always go to the court under Rule 53;
(c)
that if there is a genuine dispute about the disclosure of a document
the ordinary rules relating to discovery remain in tact.
[57]
These contentions cannot in my view serve as justification for the
infringement of an applicant's rights under section 32,
33 or 23 of
the Constitution.
[58]
With regard to the contention that the new rules are aimed at
effecting an efficient and cost-effective tool for achieving
administrative justice, our courts, as well as foreign courts, have
recognized, particularly, the principle that administrative
convenience or the lack or need of resources is not a proper basis
for avoiding constitutional obligations.
In
S v Jaipal
[2005] ZACC 1
;
2005 (4) SA 581
(CC) the Constitutional Court held at
602B, para [55] and [56] in this regard as follows:
Y557
For the State to respect, protect, promote and fulfil the rights in
the Bill of Rights, resources are required. The same applies
to the
State's obligation to assist and protect the courts to ensure their
independence, impartiality, dignity, accessibility and
effectiveness.
The right to a fair trial requires considerable resources in order to
provide for buildings with court rooms, offices
and libraries,
recording facilities and security measures and for adequately trained
and salaried judicial officers, prosecutors,
interpreters and
administrative staff.
[56]
Few countries in the world have unlimited or even sufficient
resources to meet all their socio-political and economic needs.
In
view of South Africa's history and present attempts at transformation
and the eradication of poverty, inequality and other social
evils,
resources would obviously not aIways be adequate. However, as far as
upholding fundamental rights and the other imperatives
of the
Constitution is concerned, we must guard against popularising a lame
acceptance that things do not work as they ought to,
and that one
should simply get used to it. .... Responsible, careful and creative
measures, born out of a
consciousness of the values and
requirements of our Constitution, could go a long way to avoid
undesirable situations..... ".
In
Singh etal v Minister of Employment and Immigration etal
[1985] 14
CRR 13
at 57 (quoted with approval in Bel Porto School Governing Body
v Premier, WC
[2002] ZACC 2
;
2002 (3) SA 265
(CC) at 318A, para [170) the Supreme
Court of Canada has taken the same approach, emphasizing, as follows,
that administrative
convenience is not a proper basis for failing to
comply with fundamental rights:
"(T)he guarantees of
the Charter would be illusory if they could be ignored because it was
administratively convenient to do
so. No doubt considerable time and
money can be saved by adopting administrative procedures which ignore
the principles of fundamental
justice but such an argument, in my
view, misses the point of the exercise under s 1. The principles of
natural justice and procedural
fairness which have long been espoused
by our courts, and the constitutional entrenchment of the principles
of fundamental justice
in s 7, implicitly recognize that a balance of
administrative convenience does not override the need to adhere to
these principles.".
[59]
Even if it were constitutionally permissible to limit rights by
making the process of judicial review more efficient and costly
this
is not the effect of the new rules. There is certainly no reason why
the approach in the new rules could not be combined with
allowing an
applicant sight of the full record instead of the limited record
envisaged in Rule 4. There is also no reason to say
that the new
rules would reduce the work load and costs of the State and would
promote efficiency as some administrators will have
to work through
all the documents that were before him, her or it at the time of the
decision in order to determine which of those
documents are relevant
to the applicant's intended grounds of review. In terms of Rule 53
(or Rule 7A) such an exercise would be
unnecessary. The administrator
is merely required to make all documents relevant to the decision
taken available to the applicant
without any administrative burden to
separate from those documents all documents which are in his, her or
its sole discretion relevant
to such grounds of review (and not to
the decision taken).
The
following extract from the article by Geo Quinot, supra, at 659
addresses this problem in no uncertain terms:
" The core of the
problem with the new disclosure mechanism here is that the
administrator is given the sole discretion to
decide what is
relevant, what will be provided to the applicant and in what manner.
It seems anomalous, even unfair, to leave such
matters to the sole
discretion of one of the parties to the dispute and in particular the
state party, given the fact judicial
review is a key form of
constitutional control over the exercise if public power. The
position becomes particularly objectionable
when the courts' powers
of supervision over the exercise of this administrative discretion
are significantly curtailed. It is furthermore
unrealistic to think
that administrators will generally have the capacity to accurately
gauge the relevance of documents in relation
to grounds of review.
Such an exercise requires expert knowledge of administrative law.".
See
also: Hoexter, Administrative Law in South Africa, p. 531
[60]
The fact that the entire record does not always go to court is no
justification since an applicant is in terms of Rule 53 (or
Rule 7A)
at least allowed free access to the full record.
[61
] In relation to the contention that the ordinary rules relating to
discovery remained in tact and can be utilized to obtain
sight of any
documents not covered by the definition of "relevant documents"
is in my view no justification for depriving
an applicant access to
the full record of proceedings sought to be reviewed and set aside.
The
provisions of Rule 35(13) is in any event not generally applicable to
application proceedings. In order to use discovery to
obtain the full
record, an applicant for judicial review would have to launch an
application to court which will only be considered
after all the
legal issues have been established and only if all the affidavits
have been filed.
[62]
In so far as this procedure is, as contended on behalf of the
Respondents, available to an applicant, the question arises why
an
applicant cannot in any event be allowed access to the whole record
and why it should first be necessary for the applicant to
bring an
application under Rule 35(13).
[63]
In view of the aforegoing, I find it difficult to understand why the
Respondents elected to introduce this dramatic and drastic
change in
the existing and tested situation.
In
would appear that the new rules have been preceded by various drafts
from which it is notable that at least two drafts produced
in 2006
and 2007 (Annexures JVG 4, record p. 81, and JVG 5, record p. 100)
preserved the essential elements of Rule 53.
It
is difficult to understand the Respondents' persistence, as the only
voices in favour of the new rules, to still proceed with
its
opposition against the Applicant's application, notwithstanding the
many voices against the new rules by practising attorneys
(Glen
Ronald Penfold (record p. 117), Andre Pieter Vos (record p. 124)
Pieter Abraham Lodewyk Bester (record p. 251)) and academics
such as
Professors Quinot and Hoexter, and the collective wisdom expressed,
as I already indicated, by prominent Judges of the
Supreme Court of
Appeal and our High Courts on the purpose, need and effect of the
provisions of, particularly, Rule 53.
[64]
In conclusion I find the following extract from the article by Geo
Quinot, supra, at 665 of particular significance:
".... the new rules
replace existing mechanisms with new ones that will chip away at the
constitutional commitment to administrative
justice in
South Africa, rather than
enhance it. This is particularly critical in relation to transparent
government. By removing a key element
of the procedure of the
procedure of judicial review, viz., the right to obtain the full
record of the decision, the new rules
narrow down citizens' ability
to shine a bright light on state conduct".
[65]
T his brings me to the next attack of the Applicant
Secondly
,
the other flaws in the new rules
[66]
As already indicated, the Applicant's attack is directed at Rules
3(5)(e), 4(4), 4(7), 4(6) and 7 and 7(3)(e) and (f) ofthe
new rules.
[67]
I deal seriatim with each of these attacks.
Rule
3(5)(e)
[68]
Before dealing with the real objection against Rule 3(5)(e), I need
to point out that it is badly drafted in that it does not
make
grammatical sense if read together with the preceding words in
subrule (1), namely,"... may refuse a request for reasons
if
-.... (e) on any other valid ground' instead of, for example, "any
other valid ground exists".
[69]
I am in respectful agreement with the Applicant's objections that
this paragraph is legally objectionable.
[70]
It is so objectionable for at least three reasons.
[71]
Firstly
, it purports, as I have already indicated, to extend
the provisions of section 5(4) of t he PAJA by the addition of an
additional
ground on which an administrator may depart from the
requirement to furnish reasons. In so far as it is aimed at adding
such an
additional ground, it seems to be an intrusion on the powers
of the Legislature.
[72]
Secondly
, in so far as it may otherwise be permissible to
extend the provisions of the PAJA, it fails to provide any guidance
to an administrator
to determine what other grounds might exist for
the exercise of this discretion or powers (Dawood and Another v
Minister of Home
Affairs and Others; Shalabi and Another v Minister
of Home Affairs and Others; Thomas and Another v Minister of Home
Affairs and
Others
[2000] ZACC 8
;
2000 (3) SA 936
(CC) at 969C, paras 54-56; Janse
van Rensburg NO and Another v Minister of Trade and Industry and
Another NNO 2001(3) SA 29 (CC)
at 42B, para [25]).
[73]
Thirdly
, the paragraph is in my view impermissibly vague as
neither administrator nor the applicant is in a position to know what
may a
valid ground be (Affordable Medicines Trust v Minister of
Health
[2005] ZACC 3
;
2006 (3) SA 247
(CC)at 2881, para 110811
Rule
4(4)
[74]
Apart from the fact that Rule 4 as a whole is, as I have already
indicated, constitutionally objectionable in so far as it,
as read
with the definition of ''relevant documents", infringes an
applicant's right to access to information and, therefore,
also to
fair administrative justice, subrule (4) is in particular, for the
same reasons as in the case of Rule 3(5)(e), constitutionally
objectionable.
Rules
4(7) and 7
[75]
in terms of Rule 4(6) an administrator is empowered to classify,
apparently in his, her or its own discretion,"relevant
documents" in two Parts, namely, Part 1 and Part 2 of Schedule A
to Form D.
[76]
In terms of Rule 4(7) an administrator may refuse to allow the
requester to inspect and copy the documents in Part 2.
[77]
In terms of Rule 7 a requester may, if an administrator refuses to
grant him, her or it access to a document in Part 1 of Schedule
A to
Form D, apply to court for an order compelling an administrator to
grant access to documents on the list in the said Part
1, but not in
relation to documents in Part 2 of that Schedule.
[78]
The Applicant's objections against these Rules are twofold, namely -
(a) that there is no
guidance as to which documents are to be placed in Part 2 of that
Schedule; and
(b)
that a requester is simply prevented from approaching the court for
an order granting him, her or it access to any document
in the said
Part 2.
[79]
As far as the first of these objections is concerned, we are here
faced with a similar situation with which 1 have already
dealt with
in relation to the objections against Rule 3(5)(e) which I have
already held to be legally objectionable.
[80]
As far as the second of these objections is concerned, a requester
is, not only deprived of his, her or its right to access
to
information entrenched in section 32 of the Constitution, but, as is
apparent from Rule 7(1), is also effectively, contrary
to the
provisions of section 34 of the Constitution, deprived of his or her
right of access to the court in relation to a refusal
to grant him
access to a documents specified in Part 2.
Rule
7{3)(e) and (f)
[81]
Rule 7(3) governs applications by a requester for an order compelling
an administrator to furnish a list of relevant documents
or to grant
access to a document listed in Part 1 of Schedule A of Form D.
[82]
Rule 7(3)(e)'and (f) provides that a Court may grant an application
for the furnishing of a list of relevant documents or granting
access
to a document in Part 1 if it is satisfied -
(a)
that there are prima facie grounds for the intended review (para
(e)); and
(b)
that the documents are necessary for the intended review (para (f)).
[83]
These provisions are problematic in various respects.
[84]
Firstly
, they constitute, as already indicated in relation the
Applicant's main attack against the new rules, an infringement of a
requester's
right of access to information envisaged in section 32 of
the Constitution and the right against fair administrative justice
envisaged
in section 33 thereof.
[85]
Secondly
, and, perhaps, linked to the first consideration, the
provision places a requester in an impossible position and thereby
rendering
his, her or its aforesaid rights for all practical purposes
ineffective in that it is hardly imaginable how a requester can show
that there are prima facie grounds for review or that the documents
sought to be are necessary without having had sight of those
documents.
The
position of the private respondent
[86]
We are here concerned with a situation where an applicant has in a
review application, apart from the administrator, cited
another party
having an interest in the relief claimed who is often a so-called
private respondent.
[87]
In terms of Rule 53(3) (and Rule 7A) an applicant, having obtained a
record of proceedings and having caused copies to be made
of the
record, is required to furnish copies to all other parties cited in
the application that will include the private respondent.
[88]
This is well illustrated in the decision of South African Football
Association v Stanton Woodrush (Pty) Ltd t/a Stan Smidt
& Sons
2003 (3) SA 313
(A), being a matter where an application was launched
which was primarily review proceedings, but the applicant elected not
to
bring the application in terms of Rule 53. The result was that a
private respondent cited in the matter was not afforded an
opportunity
of seeing the record of the proceedings which was sought
to be reviewed and set aside.
At
319F Harms JA (as he then was) remarked in this regard as follows:
"[5] Since the
present proceedings are primarily review proceedings, SAFA should
have utilised the provisions of Uniform Rule
53. SAFA chose not to do
so. A failure to follow Rule 53 in reviewing a decision of an
administrative organ is not necessarily
irregular because the Rule
exists principally in the interests of an applicant, and an applicant
can waive procedural rights. An
applicant is not, however, entitled,
by electing to disregard the provisions of the Rule, to impinge upon
the procedural rights
of a respondent. If, as is the usual case, the
proceedings are between the applicant and the organ of State
involved, the latter
can always, in answer to an ordinary
application, supply the record of the proceedings and the reasons for
its decision.
On the other hand, as in this instance, if the
rights of another member of the public are involved, and the organ of
State, hiding
behind a parapet of silence, adopts a supine attitude
towards the matter since the order sought will not affect it (no
costs were
sought against the Registrar if the latter were to remain
inactive), the position is materially different. Stanton was entitled
to have the full record before the Court and to have the Registrar's
reasons for the impugned decisions available.
As a respondent in
an ordinary application it does not have those rights." (my
underlining).
[89]
In so far as the new rules purports to do away with Rule 53 (and Rule
7A) the private respondent's right to be served with
a record of the
proceedings as prepared by the applicant, has also fallen by the
wayside.
Conclusion
[90]
As I have indicated, the new rules seem to be objectionable in
various respects which may, if 1 am correct, call for the new
rules
as a whole to be reconsidered (hopefully in consultation with
interested parties), but since I did not hear argument in relation
to
some of those respects, I cannot undertake to express any firm view
on those respects.
[91]
In so far as the concerns of the Applicant on which I did hear
argument, I came by way of summary to the following conclusions:-
[92]
Firstly
, in relation to the attack on the new rules to the
effect that Rule 4, read with the definition of "relevant
document' in
Rule 2, i am of the opinion that the new rules are to
that extent inconsistent with the Constitution in that they infringe
the
right of an applicant (requester) and a private respondent
entrenched in -
(a)
section 32 of the Constitution to obtain, as opposed to the rights
secured in Rule 53 (and Labour Court Rule 7A), access to
all
documents and information which were before the administrator at the
time the decision sought to be reviewed, was taken (or
which
documents or information are relevant to the decision taken);
(b)
section 33 of the Constitution to fair administrative justice, being
a right which cannot be achieved unless ail such documents
and
information are made available to the applicant concerned;
(c)
section 34 of the Constitution to have, particularly, a dispute
concerning access to a document specified in Part 2 of Schedule
A to
Form D, be resolved in the Court;
(d)
section 23(2) of the Constitution to fair labour practices in so far
as an applicant for judicial review is, as opposed to Labour
Court
Rule 7A, deprived of the right to have access to all documents and
information held by an administrator and, in the absence
of such
documents and information, to a fair adjudication of any dispute
between such applicant and the administrator.
[93]
Secondly
, in relation to the attack on specific provisions
contained in the new rules, I am of the opinion that the following
rules are
unfair and a violation of the protection afforded by,
particularly, section 33 of the Constitution -
(a)
Rules 3(5)(e) and 4(4) because of their vagueness and, in the case of
Rule 3(5)(e), because of an unauthorized apparent attempt
to amend
the provisions of the PAJA and, furthermore, because of the fact that
no guidance is provided to an administrator as to
how it should be
determined what should be held to be a "valid ground' for
refusal of a request for reasons or to furnish
a list of relevant
documents;
(b)
Rules 4(7) and 7 because (apart from, in the case of Rule 4(7), the
lack of guidance as to how the administrator should exercise
his, her
or its discretion in refusing to allow an applicant to inspect and
copy a document specified in Part 1 of Schedule A to
Form D) of the
fact that it deprives an applicant of the right of access to Court on
any dispute relating to access to a document
specified in Part 2 of
that Schedule;
(c)
Rule 7(3)(e) and (f) because of the almost impossible burden placed
upon an applicant to show, without having had sight of any
relevant
documents, that there are prima facie grounds for the intended review
and that the documents are necessary for the intended
review.
[94]
Furthermore, as far as the private respondent is concerned, the rules
deprive such a respondent of the right, as is the position
under the
current Rule 53 (and Rule 7A), to obtain a copy of at least the
portion of the record prepared by the applicant.
Order
and costs
[95]
As is apparent from the reasons set out in this judgment I am
satisfied (although I am inclined to think that the new rules
ought,
with due regard to my obiter remarks, as a whole be reconsidered),
that, on at least the considerations raised by the Applicant,
the new
rules are inconsistent with the Constitution, unlawful and invalid.
[96]
On that basis i considered the relief sought in the Notice of Motion
and was somewhat concerned on whether I am empowered to
grant an
order in terms of which it is declared that the new rules can be
remedied by a formulation set out in the order as it
may be regarded
as in an intrusion on the powers of the First Respondent to itself
draft the rules.
[97]
However, in Mkhize v Umvoti Municipality and Others
2012 (1) SA 1
(SCA) at 7D, para [12] the learned Judge of Appeal, referring with
approval to the judgment a quo in Mkhize v Umvoti Municipality
2010
(4) SA 509
(K2P) at 524B, para [30], remarked in this regard as
follows:
"In considering
whether the order in Jaftha was unconstitutional, Wailis J discussed
the purposes of the constitutional remedies
of reading in, reading
down, severance or notional severance and concluded that it always
took place within the context of the
separation of powers:
'Under
the Constitution responsibility for legislation lies with the
legislative bodies established in terms of the Constitution.
Where a
court interferes with legislation it does so within the ambit of its
own constitutional responsibility for determining
whether legislative
provisions comply with the Constitution. Whether it applies a remedy
of severance or one of reading-in, or
a combination of the two, its
sole aim and function are to render the legislation compliant with
the provisions of the Constitution.
It is not vested with any general
legislative capacity merely by virtue of the fact that it has found a
particular statutory provision
not to comply with the Constitution.
Its function is to frame an appropriate order that remedies the
constitutional defect. It
i s for this reason that stress is laid on
the court's obligation to endeavour to be faithful to the legislative
scheme.'
The
dominant inquiry, he continued, is whether the chosen remedy is an
unconstitutional intrusion into the domain of the legislature.
Reading in must conform and be consistent with the Constitution and
its fundamental values, and should interfere as little as possible
with the laws adopted by the legislature. Words should not be read in
unless a court can define with sufficient precision how the
statute
ought to be extended. Deference to the legislature and restraint are
called for to avoid a court's engagement in lawmaking.
".
[98]
On this basis it seems to me to be in order to adhere to the
Applicant's claim for an order set out in prayer 3.2 of the amended
Notice of Motion.
[99]
i realize that the order I intend making will affect the provisions
of section 7(3) of the PAJA providing for these rules to
have been
made before 25 February 2009, but I accept that the delay in making
these rules can be remedied by an appropriate amendment
of section
7(3).
[100]
As far as costs are concerned, the Applicant claims costs against all
parties opposing the application.
[101]
Although the First Respondent has indicated that it will abide by the
Court's decision there was appearance on its behalf
in circumstances
where it clearly appears that the First Respondent joined forces with
the Second Respondent in his opposition
to the application.
[102]
I accordingly see no reason why the First Respondent should not also
be held liable for the Applicant's costs.
In
te result I make the following order-
1. THAT it be declared
that Rule 4, read with the definition of "relevant document' in
Rule 1, of the Rules of Procedure for
Judicial Review of
Administrative Action made under section 7(3) of the Promotion of
Administrative Justice Act, 2000 (Act 3 of
2000), and published in
Government Gazette No. 32622 by Government Notice R. 966 of 9 October
2009 ("the new rules"),
to be inconsistent with the
Constitution, unlawful and invalid, to the extent that it deprives,
contrary to the provisions of sections
32, 33, 34 and 23(2) of the
Constitution, a person intending to institute an application for
judicial review from access to all
documents and information which
were before an administrator at the time the decision which may be
sought to be reviewed, was taken.
2.
THAT it be declared that the inconsistency, unlawfulness and
invalidity referred to in paragraph 1 of this order to be remedied
by
the substitution for the
definition of "relevant document in
Rule 2 of the new rules of the following definition:
'"relevant
documents' mean every document that was before or available to the
administrator when the administrator took the
decision sought to be
reviewed;".
3.
THAT it be declared Rules 3(5)(e), 4(4) and (7) and 7(3)(e) and (f)
of the new rules are inconsistent with the Constitution and,
therefore,
4.
THAT it be declared the new rules for judicial review to be
inconsistent with the Constitution, unlawful and invalid to the
extent that they fail to provide for a mechanism whereby a private
respondent in an application for judicial review can obtain access
to
the record and reasons for a decision which is sought to be reviewed
and set aside.
5.THAT
the Respondents to be ordered to pay, jointly and severally, the one
paying the other to be absolved, the Applicant's costs.
P
C VAN DER BYL
ACTING
JUDGE OF THE HIGH COURT
ON
BEHALF OF APPLICANT:ADV S BUDLENDER
ADV
C STEINBERG
On
the instructions of:: LAWYERS FOR HUMAN RIGHTS
JOHANNESBURG
LAW CLINIC
Ref:
Ms. Gina Snyman
c/o
LAWYERS FOR HUMAN RIGHTS PRETORIA LAW CLINIC Kutlwanong Democracy
Centre 357 Visagie Street
PRETORIA
Ref:
Cote/PAJA
Tel:
012 320 2949
ON
BEHALF OF THE RESPONDENTS:ADV W R E DUMINY SC
ADV.
M S MPHAHLELE
On
the instructions of: THE STATE ATTORNEY (PRETORIA)
Manaka
Heights 8
th
Floor
167
Andries Street
PRETORIA
Ref: Mrs J L de Lange
Tel:
012 309 1565 or 072 366 7707
DATE
OF HEARING: 6 February 2012
JUDGMENT
DELIVERED ON:11 April 2012