Regulation: Promotion of Administrative Justice Act, 2000 |
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Government Gazette
Vol. --, No. --, 2000
Regulation Gazette, No. --
No. R. --
GOVERNMENT NOTICE
DEPARTMENT OF JUSTICE
The Minister of Justice has in terms of section 10 of the Promotion of Administrative Justice Act, 2000 (Act 3 of 2000), made the regulations set out in the Schedule.
SCHEDULE
Definitions
1. In these regulations, unless the context otherwise indicates, a word or expression to which a meaning has been assigned in the Act has the same meaning, and
"Act" means the Promotion of Administrative Justice Act, 2000 (Act 3 of 2000).
CHAPTER 1
NOTICE AND COMMENT PROCEDURE
Application of this Chapter
2. (1) This Chapter applies to administrative action which materially and adversely affects the rights of members of the public as envisaged in section 4 (1) of the Act, and must be complied with if –
(a) an administrator decides in terms of section 4 (1) of the Act to follow a notice and comment procedure; or
(b) other legislation requires particulars of the proposed administrative action to be published for comment before a decision is taken.
(2) If subregulation (1) (b) applies, the provisions of this Chapter must be complied with to the extent that those provisions are not inconsistent with such other legislation.
Publication
3. (1) Information concerning the proposed administrative action must be published by way of a notice in at least –
(a) the Government Gazette if the administrative action affects the rights of members of the public throughout the Republic;
(b) the Provincial Gazette of a province if the administrative action affects the rights of members of the public in that province only; or
(c) a newspaper which is distributed in a specific area if the administrative action affects the rights of members of the public in that area only.
(2) A notice published in terms of subregulation (1) must include –
(a) an invitation to members of the public to submit representations or objections in connection with the proposed administrative action to the administrator concerned before a date specified in the notice, which date may not be earlier than 21 days from the date of publication of the notice;
(b) the name and official title of the person to whom any representations or objections must be sent or delivered; and
(c) that person’s –
(i) postal and street address and, if available, also an e-mail address;
(ii) work telephone number; and
(iii) fax number, if any.
(3) A notice published in terms of subregulation (1) must –
(a) contain sufficient information about the proposed administrative action to enable the public to submit meaningful representations; and
(b) when appropriate, specify a place or places where, and the hours within which, further information concerning the proposed administrative action will be available for public scrutiny.
(4) If the notice specifies a place or places where further information about the proposed administrative action will be available for public scrutiny, access to such further information must–
(a) be allowed from the date on which the notice is published until the closing date for public comment, Saturdays, Sundays and public holidays excluded; and
(b) be free of charge, subject to subregulation (5).
(5) Subregulation (4) (b) does not prevent an administrator from charging a reasonable fee for copies of documents containing particulars concerning the proposed administrative action.
(6) In order to ensure that the proposed administrative action is brought to the attention of the public, the administrator may, in addition, publicise the information referred to in subregulations (1) to (5) by way of communications through the printed and electronic media, including by way of press releases, press conferences, the Internet, radio and TV broadcasts, posters and leaflets.
Language
4. (1) A notice published in terms of regulation 3 (1) must be in English and in at least one of the other official languages.
(2) A notice published in terms of regulation 3 (1) (b) or (c) must apart from English be in an official language or languages that take account of language preferences and usage in the province or area concerned.
(3) Written or oral representations and objections may be in any official language.
Special assistance
5. (1) If proposed administrative action will materially and adversely affect the rights of members of a specific community consisting of a significant proportion of people who cannot read or write –
(a) the notice must be publicised in the area of that community in a manner that will bring the proposed action to the attention of the community at large; and
(b) the administrator must take special steps to solicit the views of members of the community.
(2) Special steps in terms of subregulation (1) (b) may include –
(a) the holding of public or group meetings where the proposed action is explained, questions are answered and views from the audience are minuted;
(b) a survey of public opinion in the community on the proposed action; or
(c) provision of a secretarial facility in the community where members of the community can state their views on the proposed action.
Extension of closing date
6. (1) The administrator may extend the closing date for public comment specified in a notice published in terms of regulation 3.
(2) Any extension of a closing date of more than one month must be published by way of a notice as prescribed in regulations 3 (1) and 4 (1) and, when appropriate, in regulation 3 (6).
Comments received after closing date
7. The administrator –
(a) may refuse to accept representations received after the closing date for public comment; and
(b) is not obliged to grant requests for condonation of late submission of representations.
CHAPTER 2
PUBLIC INQUIRIES
Application of this Chapter
8. (1) This Chapter applies to administrative action which materially and adversely affects the rights of members of the public as envisaged in section 4 (1) of the Act, and must be complied with if –
(a) the administrator decides in terms of section 4 (1) of the Act to hold a public inquiry; or
(b) other legislation requires a public inquiry before a decision is taken.
(2) If subregulation (1) (b) applies, the provisions of this Chapter must be complied with to the extent that such provisions are not inconsistent with such other legislation.
Part 1: General
Notice of public inquiry
9. (1) The administrator must give notice of any public inquiry to be conducted in terms of section 4 (1) (a) of the Act in at least –
(a) the Government Gazette if the public inquiry affects the rights of members of the public throughout the Republic;
(b) the Provincial Gazette of a province if the public inquiry affects the rights of members of the public in that province only; or
(c) a newspaper which is distributed in a specific area if the public inquiry affects the rights of members of the public in that area only.
(2) A notice published in terms of subregulation (1) must state –
(a) whether the administrator will conduct the inquiry or whether a person or panel has been appointed in terms of section 4 (2) (a) of the Act to conduct the inquiry;
(b) if such a person or panel has been appointed –
(i) the name of the person or the names of the persons on the panel appointed to conduct the inquiry, including, in the case of a panel, the name of the person appointed as convenor of the panel; and
(ii) the period within which the inquiry must be completed; and
(c) particulars of the matter to be investigated, or if a person or panel has been appointed, the terms of reference of the person or panel.
(3) A notice published in terms of subregulation (1) must contain an invitation to members of the public to give evidence or make oral representations or to submit written representations in connection with the matter to be investigated. The notice must in addition –
(a) state the closing date for persons to register as witnesses or for written representations to be submitted, which date may not be earlier than 21 days from the date of publication of the notice;
(b) the name and official title of the person to whom any applications for registration as witnesses or any written representations must be sent or delivered; and
(c) that person’s –
(i) postal and street address and, if available, also an e-mail address;
(ii) work telephone number; and
(iii) fax number, if any.
(4) A notice published in terms of subregulation (1) must –
(a) contain sufficient information about the matter to be investigated to enable the public to submit meaningful representations; and
(b) when appropriate, specify a place or places where, and the hours within which, further information about the matter to be investigated will be available for public scrutiny.
(5) If the notice specifies a place or places where further information about the matter to be investigated will be available for public scrutiny, access to such further information must–
(a) be allowed from the date on which the notice is published until the closing date for public comment, Saturdays, Sundays and public holidays excluded; and
(b) be free of charge, subject to subregulation (6).
(6) Subregulation (5) (b) does not prevent an administrator from charging a reasonable fee for copies of documents containing particulars concerning the matter to be investigated.
(7) Persons who want to register as witnesses must submit in writing to the person referred to in subregulation (3) (b) –
(a) their names, postal address and telephone number; and
(b) a brief summary of the matter on which they wish to testify or to make oral representations.
(8) In order to ensure that the public inquiry is brought to the attention of the public, the administrator may, in addition, publicise the information referred to in subregulations (1) to (6) by way of communications through the printed and electronic media, including by way of press releases, press conferences, the Internet, radio and TV broadcasts, posters and leaflets.
Language
10. (1) A notice published in terms of regulation 9 must be in English and in at least one of the other official languages.
(2) A notice published in terms of regulation 9 (1) (b) or (c) must apart from English be in the official language or languages that take account of language preferences and usage in the province or area concerned.
(3) Written representations and objections may be in any official language.
Special assistance
11. (1) If any administrative action that may be taken as a consequence of the public inquiry will materially and adversely affect the rights of members of a specific community consisting of a considerable proportion of people who cannot read or write –
(a) the notice must be publicised in the area in a manner that will bring the matter to be investigated to the attention of the community at large; and
(b) the administrator must take special steps to solicit the views of members of the community on the matter to be investigated.
(2) Special steps in terms of subregulation (1) (b) may include –
(a) the holding of public or group meetings where the matter to be investigated and the possible consequences are explained, questions are answered and views from the audience are minuted;
(b) a survey of public opinion in the community on the matter to be investigated; or
(c) provision of a secretarial facility in the community where members of the community can state their views on the matter to be investigated.
Extension of closing date
12. (1) The administrator may extend the closing date specified in the regulation 9 notice for persons to register as witnesses or for written representations to be submitted.
(2) Any extension of a closing date for an significant period must be published by way of a notice as prescribed in regulations 9 (1) and 10 (1) and, when appropriate, in regulation 9 (8) .
Applications and comments received after closing date
13. The administrator or the person or panel conducting the inquiry –
(a) may refuse to accept any applications for registration as witnesses or any representations or objections received after the closing date; and
(b) is not obliged to grant requests for condonation of late registration as a witness or of late submission of representations and objections.
Special provisions applicable to both persons and panels appointed to conduct public inquiries
14. If a person or panel has been appointed in terms of section 4 (2) (a) of the Act to conduct a public inquiry, that person or panel must –
(a) conduct the inquiry –
(i) in accordance with their terms of reference;
(ii) with the administrative resources provided by the administrator; and
(iii) within a time and financial framework determined by the administrator;
(b) regularly or on request by the administrator report to the administrator on progress with the completion of the task; and
(c) immediately report to the administrator any administrative or other obstacles impeding progress with the task.
Special provisions applicable to panels only
15. (1) The convenor or another panel member designated by the convenor presides at meetings of the panel.
(2) When a panel reports in terms of section 4 (2) (b) (iii) of the Act on the inquiry, it must also report any minority view.
Part 2: Public hearings
Commencement of public hearings
16. (1) The administrator or the person or panel conducting a public inquiry must start and complete the public hearing required by section 4 (2) (b) (i) (aa) of the Act without unreasonable delay.
(2) The administrator or the person or panel conducting the public inquiry must give notice of the public hearing –
(a) in a newspaper which is distributed, or in newspapers which collectively are distributed, throughout the Republic, if the public inquiry affects the rights of members of the public throughout the Republic;
(b) in a newspaper which is distributed, or in newspapers which collectively are distributed, throughout a particular province, if the public inquiry affects the rights of members of the public in that particular province only; or
(c) in a newspaper which is distributed in a specific area, if the public inquiry affects the rights of members of the public in that specific area only.
(3) A notice published in terms of subregulation (2) must –
(a) state particulars of the matter that is being investigated;
(b) state the venue of the hearing and the time and date on which the hearing will commence; and
(c) invite members of the public to attend the hearing.
(4) In order to ensure that the public hearing is brought to the attention of the public, the administrator or the person or panel conducting the public hearing may, in addition, publicise the information referred to in subregulations (2) and (3) by way of communications through the printed and electronic media, including by way of press releases, press conferences, the Internet, radio and TV broadcasts, posters and leaflets.
(5) The administrator or the person or panel conducting the public inquiry must inform every person who registered as a witness in terms of regulation 9 (3) and whose evidence or representations may in the opinion of the administrator or the person or panel be valuable for the inquiry, of the venue of the public hearing and the date on which that person will be heard.
Procedure at public hearings
17. (1) The administrator or the person or panel conducting the public inquiry determines the procedure at a public hearing, subject to the Act and the other provisions of these regulations.
(2) The law regarding privilege as applicable to a witness summoned to give evidence in a criminal case in a court applies to the questioning of a person in the course of an inquiry.
Person presiding at public hearings
18. (1) The administrator or, if a person or panel has been appointed to conduct the public inquiry, that person or the convenor of the panel or another panel member designated by the convenor, presides at a public hearing.
(2) The person presiding at a public hearing, either in person or through a representative, must explain the issues the administrator or the person or panel has to consider, and the person presiding may –
(a) allow a person present at the proceedings and who registered as a witness in terms of regulation 9 (3) to give evidence, to make oral representations or to produce a document;
(b) call any other person present at the proceedings to give evidence or to produce a document in that person’s custody;
(c) administer an oath or solemn affirmation to that person;
(d) question that person, or have that person questioned by a person designated by the person presiding; and
(e) retain for a reasonable period any document produced in terms of paragraph (a) or (b).
Persons appearing at public hearing
19. (1) A person appearing at a public hearing may, with the approval of the person presiding at the public hearing and at own expense, be assisted by a representative.
(2) A person appearing at a public hearing, including such person’s representative, must observe the directions of and conform to the procedures determined by the person presiding at the public hearing.
Access to public hearings
20. (1) Public hearings are open to the public, including the media, and the person presiding at the public hearing may not exclude the public, including the media, from the hearing, except when –
(a) legislation applicable to the hearing provides for the hearing to take place in closed session; or
(b) the matter that is being considered is –
(i) of a private nature that is prejudicial to a particular person;
(ii) privileged in terms of the law;
(iii) confidential in terms of legislation; or
(iv) of such a nature that its confidential treatment is for any other reason reasonable and justifiable in an open and democratic society.
(2) The administrator or the person or panel conducting the public inquiry may take reasonable measures –
(a) to regulate public access, including access of the media, to the place where the hearing is held;
(b) to prevent and control misconduct by members of the public attending the hearing; and
(c) to provide for the voluntary searching of any person, and, where appropriate, for the refusal of entry to, or the removal of any person from the place where the hearing is held.
(3) The person presiding at a public hearing may –
(a) order a member of the public, including the media, to leave the place where the hearing is held –
(i) when the public is excluded from the hearing in terms of subregulation (1); or
(ii) whenever this is necessary to give effect to the measures taken in terms of subregulation (2); or
(b) order a person referred to in regulation 19 (2) to leave the hearing if that person does not comply with a direction of the person presiding.
(4) When instructed by the person presiding at a public hearing, a peace officer present at the hearing must remove a person –
(a) who disrupts the proceedings or causes a nuisance; or
(b) does not leave when ordered to leave in terms of subregulation (3).
Adjournment of public hearings
21. (1) The administrator or the person or panel conducting the public inquiry may –
(a) adjourn a public hearing; or
(b) at any time after the adjournment, change the date for the resumption of the hearing.
(2) Regulation 16 (2) does not apply to an adjournment of a public hearing.
CHAPTER 3
REQUESTS FOR REASONS
Application of this Chapter
22. (1) This Chapter applies to administrative action which materially and adversely affects the rights of a person, and must be complied with if –
(a) a request for reasons for administrative action is made in terms of section 5 (1) of the Act; or
(b) other legislation provides for reasons for administrative action to be given.
(2) If subregulation (1) (b) applies, the provisions of this Chapter must be complied with to the extent that these provisions are not inconsistent with such other legislation.
Formal requirements
23. (1) A request in terms of section 5 of the Act for reasons for administrative action which materially and adversely affected a person’s rights must be –
(a) in writing;
(b) addressed to the administrator concerned; and
(c) sent to the administrator by registered post, fax or electronic mail or delivered to the administrator by hand.
(2) If a request for reasons is transmitted by fax or electronic mail, the original of the fax or a printed copy of the electronic mail must be sent to the administrator by certified post.
(3) If an administrator receives an oral request for reasons from a person who cannot write, the administrator or a person designated by the administrator must give reasonable assistance to that person to submit such request in writing.
(4) A request for reasons must –
(a) in sufficient detail describe –
(i) the administrative action which affected the rights of the person making the request; and
(ii) how that person’s rights are materially and adversely affected by the administrative action;
(b) state –
(i) the date on which that person became aware of the administrative action;
(ii) the full name and postal and, if available, electronic mail address of that person; and
(iii) telephone and fax numbers where that person may be contacted.
Administrator’s duties
24. (1) An administrator to whom a request for reasons is made must either comply with the request and furnish the reasons or refuse the request.
(2) If an administrator refuses a request, the administrator must give reasons in writing to the person who made the request why the request was refused.
Short title and commencement
25. These regulations are called the Regulations on Fair Administrative Procedures, 2000, and take effect on a date to be determined by the Minister of Justice by notice in the Government Gazette.
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