New rules ‘will undermine transparency’
Lawyers for Human Rights warn new rules on what documents a person is entitled to when planning to challenge a government official’s decision in court will make it harder to hold government to account for its decisions
Franny Rabkin | Business Day | 2012/02/06 07:10:31 AM
NEW rules on what documents a person is entitled to when planning to challenge a government official’s decision in court will make it harder to hold government to account for its decisions, said Lawyers for Human Rights in court papers.
Effective judicial review is widely viewed as an essential part of ensuring the government acts lawfully when it takes administrative decisions — such as the awarding of mining rights or tenders.
The "record" of the official’s decision, the documents upon which the decision was based, is a key weapon in the arsenal of the person who wishes to challenge the decision in court. Obtaining the record is the first step of the court process to review and set aside an administrative decision.
The new rules, yet to come into force, say that before a person challenges an administrative decision, he is entitled to ask for only those documents that are "relevant" to his grounds for believing the decision to be unlawful. The decision maker decides what documents are relevant.
Lawyers for Human Rights has said in court papers that this is a massive shift from the law as it now stands, which entitles the litigant, by right, to "every scrap of paper" that the decision maker had in front of him when the decision was made.
The legal advocacy organisation said the rules breach the constitutional right to just administrative action and other constitutional rights.
This argument has been hotly disputed by the Department of Justice, which argued the point of the new rules was to make judicial review "a sharp and focused instrument", ultimately making the process more efficient. The Rules of Procedure for Judicial Review of Administrative Action, enacted under the Promotion of Administrative Justice Act, were promulgated in 2009 and are meant to bring the court procedure in line with the act.
Under the law, Rule 53 of the Uniform Rules of Court, once a person has received the full record, it is possible (and it in fact often happens, says Lawyers for Human Rights) that the record will reveal even more grounds on which to argue that the decision was unlawful.
The litigant can then amend his court papers, asking the court to set aside the decision on those extra grounds as well.
But, said Lawyers for Human Rights, the new rules defined "relevant" documentation as only documents directly related to the ground of review that the litigant had originally specified — leaving no opportunity for the applicant to supplement his grounds.
In heads of argument, counsel for Lawyers for Human Rights, Steven Budlender and Carol Steinberg, said the rules "would reduce the accountability of the public administration by facilitating a more secretive process of administrative decision".
The department said the law as it stood did not require every scrap of paper to be given to the litigant and had always required only relevant documents to be handed over. In the experience of the state attorney’s office, when huge volumes of documentation have been handed over, it has usually been only a few of these that have actually been relevant in court, said counsel for government Willie Duminy SC in his heads of argument.
The case is set for the North Gauteng High Court today.
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