Revised Rules made under THE PROMOTION OF ADMINISTRATIVE JUSTICE ACT, 2000 (ACT 3 OF 2000)

1. Revised Rules made under THE PROMOTION OF ADMINISTRATIVE JUSTICE ACT, 2000 (ACT 3 OF 2000) RULES BOARD FOR COURTS OF LAW

2. PAJA Rules of procedure A. Background • Section 33 of the 1996 Constitution reads as follows: 33 Just administrative action “(1) Everyone has the right to administrative action that is lawful, reasonable and procedurally fair. (2) Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons.”

3. PAJA Rules of procedure Background continued “(3) National legislation must be enacted to give effect to these rights, and must- (a) provide for the review of administrative action by a court or, where appropriate, an independent and impartial tribunal; (b) impose a duty on the state to give effect to the rights in subsections (1) and (2); and (c) promote an efficient administration.”

4. PAJA Rules of procedure Background continued • The Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000) (“the Act”) gives effect to the rights under section 33 of the Constitution. • Section 7(3) of the Act provides that: “The Rules Board for Courts of Law established by section 2 of the Rules Board for Courts of Law Act, 1985 (Act 107 of 1985), must, before 28 February 2009, subject to the approval of the Minister, make rules of procedure for judicial review.”

5. PAJA Rules of procedure Background continued • Section 7(5) of the Act provides that: “Any rule made under subsection (3) must, before publication in the Gazette, be approved by Parliament” - Annexure A of the Briefing Note (page 8). • Section 6 of the Rules Board Act empowers the Rules Board to review the existing rules of court on a regular basis and make, amend or repeal the rules of court - Annexure B of the Briefing Note (pages 9 to 12). • The review of rules is informed by judicial pronouncements, role-players’ submissions, internal discussions or observations from the

6. PAJA Rules of procedure Background continued Rules Board and its Secretariat. • Pursuant to its mandate, the Rules Board made the first PAJA Rules which were approved in February 2009. These are contained in Annexure C of the Briefing Note (pages 13 to 45). • In the matter of Lawyers for Human Rights v Rules Board for Courts of Law and the Minister of Justice and Constitutional Development (2012) BCLR 754 (GNP), [2012] 3 All SA 153 (GNP) the court declared certain provisions of PAJA Rules unconstitutional.

7. PAJA Rules of procedure B. Review of PAJA Rules • Subsequent to judgment in the cited court case, the PAJA Rules Committee of the Rules Board (“PRC”) revisited the rules and concluded that they should be abandoned and new rules drafted. • New PAJA Rules (“2013 draft”) were drafted and sent out to role-players for comments, with the Board’s approval - Annexure D of the Briefing Note (pages 46 to 50). • Comments thereto were received from Judge BM Griesel, Judge AA Landman and the Legislative Development unit of DoJ.

8. PAJA Rules of procedure Review of PAJA Rules continued • The comments were considered by the PRC, particularly at its meeting of 7 August 2013, culminating in a further revised 2013 draft – Annexure E of the Briefing Note (pages 51 to 56). • These draft rules were subsequently approved by the Board on 13 September 2013, with an endorsement to send same to the Office of the Chief State Law Adviser (“OCSLA”) for scrutiny. • OCSLA approved the draft and proposed certain amendments regarding format and style. These were effected and the draft was prepared for send off to the Minister for

9. PAJA Rules of procedure Review of PAJA Rules continued approval. • Due to the change in government leadership the applicable memo had to be revised for the attention of the new Minister, who ultimately approved the rules on 22 January 2015. • The revised PAJA Rules approved by the Minister are contained in Annexure F of the Briefing Note (pages 57 to 62). • A further memo was sent to the Ministry requesting the tabling of the revised rules in Parliament for approval– (Section 7(5)).

10. PAJA Rules of procedure • C. Underlying Principles • The pertinent underlying principles are: • Retention of the existing review procedure embodied in High Court Rule 53; • Non-adoption of a special procedure for PAJA reviews; • Alignment with existing procedural rules in both the High Court and Lower Courts; and • Addressing shortcomings identified in the stated Pretoria High Court judgment.

11. PAJA Rules of procedure • Annexure A – Section 7 of PAJA page 8 (of the Briefing Note) • Annexure B – Section 6 of Rules Board Act pages 9 – 12 • Annexure C – First PAJA Rules of 2009 pages 13 – 45 • Annexure D – 2013 Draft PAJA Rules pages 46 – 50 • Annexure E – Further Revised 2013 PAJA Rules pages 51 – 56 • Annexure F – Final PAJA Rules pages 57 – 62

12. PAJA Rules of procedure Thank you paulfarlam@law.co.za rajdaya@justice.gov.za dneke@justice.gov.za