Administrative Justice Act [Chapter 10:28]

 

Chapter 10:28

Administrative Justice Act

Act 12/2004

ARRANGEMENT OF SECTIONS

Section

1. Short title.
2. Interpretation and application.
3. Duty of administrative authorities.
4. Relief against administrative authorities.
5. Determining factors.
6. Application for and issue of order to supply reasons.
7. Discretion to entertain applications.
8. Discretion to refuse or to restrict supply of reasons.
9. Intervention by Attorney-General.
10. Minister may make regulations.
11. Application of Act to certain administrative authorities or actions limited or excluded.

SCHEDULE

Administrative Actions in Respect of which Application of Sections 3(1)(c), 3(2) and 6 Excluded or Qualified.

AN ACT to provide for the right to administrative action and decisions that are lawful, reasonable and procedurally fair; to provide for the entitlement to written reasons for administrative action or decisions; to provide for relief by a competent court against administrative action or decisions contrary to the provisions of this Act; and to provide for matters connected with or incidental to the foregoing.

[Date of commencement: 3rd September, 2004.]

1    Short title

This Act may be cited as the Administrative Justice Act [Chapter 10:28].

                       2    Interpretation and application

• In this Act—

“administrative action” means any action taken or decision made by an administrative authority and the words “act”, “acting” and “actions” shall be construed and applied accordingly;

“administrative authority” means any person who is—

• an officer, employee, member, committee, council, or board of the State or a local authority or

parastatal; or

• an committee, or board appointed by or in terms of any enactment; or
• a Minister or Deputy Minister of the State; or
• any other person or body authorised by any enactment to exercise or perform any administrative power or duty; and who has the lawful authority to carry out the administrative action concerned;

“empowering provision” means a written law or rule of common law, or an agreement, instrument or other document in terms of which any administrative action is taken;

“Minister” means the Minister of Justice, Legal and Parliamentary Affairs or any other Minister to whom the President may from time to time assign the administration of the Act;

“parastatal” means a body established under an enactment for special purposes specified in the enactment;

“uniformed force” means—

• the Defence Forces as defined in subsection (1) of section 2 of the Defence Act [Chapter 11:02];
• the Police Force as defined in section 2 of the Police Act [Chapter 11:10]; or (c) the Prison Service as defined in section 2 of the Prisons Act [Chapter 7:11].

• The provisions of this Act shall be construed as being in addition to, and not as limiting, any other right to appeal against, bring on review or apply for any other form of relief in respect of any administrative action to which this Act applies.

                       3    Duty of administrative authority

(1) An administrative authority which has the responsibility or power to take any administrative action which may affect the rights, interests or legitimate expectations of any person shall—

• act lawfully, reasonably and in a fair manner; and
• act within the relevant period specified by law or, if there is no such specified period, within a reasonable period after being requested to take the action by the person concerned; and
• where it has taken the action, supply written reasons therefor within the relevant period specified by law or, if there is no such specified period, within a reasonable period after being requested to supply reasons by the person concerned.

(2) In order for an administrative action to be taken in a fair manner as required by paragraph (a) of subsection (1), an administrative authority shall give a person referred to in subsection (1)— (a) adequate notice of the nature and purpose of the proposed action; and

(b) a reasonable opportunity to make adequate representations; and (c) adequate notice of any right of review or appeal where applicable.

(3) An administrative authority may depart from any of the requirements referred to in subsection (1) or (2) if—

• the enactment under which the decision is made expressly provides for any of the matters referred to in those subsections so as to vary or exclude any of their requirements; or
• the departure is, under the circumstances, reasonable and justifiable, in which case the administrative authority shall take into account all relevant matters, including
  • the objects of the applicable enactment or rule of common law;
  • the likely effect of its action;
  • the urgency of the matter or the urgency of acting thereon; (iv) the need to promote efficient administration and good governance; (v)        the need to promote the public interest.

                       4    Relief against administrative authorities

• Subject to this Act and any other law, any person who is aggrieved by the failure of an administrative authority to comply with section three may apply to the High Court for relief.
• Upon an application being made to it in terms of subsection (1), the High Court may, as may be appropriate—
• confirm or set aside the decision concerned;
• refer the matter back to the administrative authority concerned for consideration or reconsideration;
• direct the administrative authority to take administrative action within the relevant period specified by law or, if no such period is specified, within a period fixed by the High Court;
• direct the administrative authority to supply reasons for its administrative action within the relevant period specified by law or, if no such period is specified, within a period fixed by the High Court;
• give such directions as the High Court may consider necessary or desirable to achieve compliance by the administrative authority with section three.
• Directions given in terms of subsection (2) may include directions as to the manner or procedure which the administrative authority should adopt in arriving at its decision and directions to ensure compliance by the administrative authority with the relevant law or empowering provision.
• The High Court may at any time vary or revoke any order or direction given in terms of subsection (2).

                       5    Determining factors

For the purposes of determining whether or not an administrative authority has failed to comply with section three the High Court may have regard to whether or not—

• the administrative authority has jurisdiction in the matter;
• the enactment under which the action has been taken authorises the action;
• a material error of law or fact has occurred;
• a power has been exercised for a purpose other than that for which the power was conferred; (e) fraud, corruption or favour or disfavour was shown to any person on irrational grounds; (f) bad faith has been exercised;
• a discretionary power has been improperly exercised at the direction, behest or request of another person;
• a discretionary power has been exercised in accordance with a direction as to policy without regard to the merits of the case in question;
• a power has been exercised in a manner which constitutes an abuse of that power; (j) the action taken is so unreasonable that no reasonable person would have taken it;
• there is any evidence or other material which provides a reasonable or rational foundation to justify the action taken;
• an irrelevant matter has been taken into account;
• a relevant matter has not been taken into account;
• a breach of the rules of natural justice, where applicable, has occurred;
• the procedures specified by law have been followed;
• any departure from the requirements of section three is in the circumstances reasonable and justifiable.