DATE DOWNLOADED: Fri Oct 9 09:21:22 2020
SOURCE: Content Downloaded from HeinOnline
Citations:
Bluebook 21st ed.
Andre Rabie & Gerhard Erasmus, When Delegated Powers Become Plenary Powers, 5 S. AFR.
J. oN HUM. Rts. 440 (1989).
ALWD 6th ed.
Rabie, A.; Erasmus, G. ., When delegated powers become plenary powers, 5(3) S. Afr.
J. on Hum. Rts. 440 (1989).
APA 7th ed.
Rabie, A., & Erasmus, G. (1989). When delegated powers become plenary powers. South
African Journal on Human Rights, 5(3), 440-449.
Chicago 7th ed.
Andre Rabie; Gerhard Erasmus, "When Delegated Powers Become Plenary Powers," South
African Journal on Human Rights 5, no. 3 (1989): 440-449
McGill Guide 9th ed.
Andre Rabie & Gerhard Erasmus, "When Delegated Powers Become Plenary Powers" (1989)
5:3 SAJHR 440.
MLA 8th ed.
Rabie, Andre, and Gerhard Erasmus. "When Delegated Powers Become Plenary Powers."
South African Journal on Human Rights, vol. 5, no. 3, 1989, p. 440-449. HeinOnline.
OSCOLA 4th ed.
Andre Rabie and Gerhard Erasmus, 'When Delegated Powers Become Plenary Powers' (1989)
5 S Afr J on Hum Rts 440
-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and
Conditions of the license agreement available at
https://heinonline.org/HOL/License
-- The search text of this PDF is generated from uncorrected OCR text.
-- To obtain permission to use this article beyond the scope of your license, please use:
Copyright Information
440
SOUTH AFRICAN JOURNAL ON HUMAN RIGHTS
WHEN DELEGATED POWERS BECOME PLENARY POWERS
Kauluma v The Cabinetfor the Interim Government of South West Africa
AD 8 November 1988, unreported.
INTRODUCTION
It is a basic ideal of democratic government that those institutions
empowered to make decisions directly affecting the public, should be
elected and representative. This ensures accountability. When
discretionary powers are conferred upon officials who are not
accountable, a democratic principle is jeopardized. Control over the
exercise of power, a basic objective of democratic government, will, as
a result, become that more difficult.
This is not only a concept found in political theory. It also relates to
the rule of law, specifically in so far as it forbids the arbitrary exercise
of power. One can go further and point out that, in addition, it has
institutional implications, as reflected by the concept of the separation
of powers. Experience has shown that concentration of power in the
hands of one branch of government, such as the executive, will
inevitably lead to abuse of that power. It is therefore incumbent upon
an elected legislature to exercise utmost caution when delegating its
power. After all, it is to the elected legislature that the electorate has
entrusted ultimate authority.
The practical needs of modern governments, however, demand that
legislative powers, such as those vested in Parliament, be delegated to
the executive. This is done through an enabling Act, which should
contain the exact framework in terms of which the delegated powers
are to be exercised.
These principles of democratic government as well as the practical
needs of government find recognition in the law, and more
specifically in the maxim delegatus non potest delegare. This rule
applies to both delegated legislative powers and to executive powers. It
is based on the idea that when an enabling statute authorizes certain
officials to perform specific functions, they themselves must do so.
They may not further sub-delegate such powers to subordinates. This
will also prevent someone less qualified or politically less responsible
from exercising such powers. A delegated power therefore does not
normally include the power of sub-delegation.
This is also the position under South African law. Lawrence Baxter
(Administrative Law (1984) 434) summarizes it as follows:
'In South Africa, Parliament is recognized to have unlimited powers of delegation.
Considerable latitude is also given to such "original" authorities as provincial
councils. But all other administrative authorities are treated as delegees, power
having been delegated to them by the original authority. Not being the direct
repositories of public trust they are not permitted the same freedom to choose who
shall exercise their powers. There is a presumption that they may not further delegate
(ie sub-delegate) their powers: delegatus non potest delegare.'
CASES AND COMMENTS
-441
Modem state practice shows that sub-delegation is sometimes
called for. A minister of a state department, for instance, will find it
impossible to perform all the functions assigned to his department.
He must be able to entrust some of these tasks to his officials. Such
sub-delegation, however, must be authorized in the relevant enabling
legislation, ie expressly or by necessary implication. Only then can
the rule against delegation be suspended.
A number of people from the northern part of Namibia have recently discovered that these considerations do not necessarily apply as far
as the administration of their territory is concerned. A certain Mr
Kauluma and others brought an action against the Interim Government, the Minister of Defence and the Administrator-General contesting the validity of a curfew. The Administrator-General (AG) for
Namibia had earlier promulgated proclamations providing for a
curfew in areas of Ovambo. He also prohibited people from driving
vehicles by night in 'Security Districts'. At stake was the precise nature
and scope of the powers of the AG. In order to understand his powers
one has to start at the top, with the relevant Act of Parliament.
LEGISLATION INVOLVED
Parliamentary legislation
Section 38(1) of the South West Africa Constitution Act 39 of 1968
empowers the State President by proclamation in the gazette to make
laws for Namibia with a view to the eventual attainment of independence, the administration of Walvis Bay and the regulation of any
other matter and he may in any such law
(a) repeal or amend any legal provision, including this Act (barring
certain provisions (subsecs (6) and (7)) that in effect give Parliament the right to veto a law made by the State President, and any
other Act of Parliament in so far as it relates to or applies in
Namibia or is connected with the administration thereof or the
administration of any matter by any authority therein; and
(b) repeal or amend any Act of Parliament, and make different provision, to regulate any matter which, in his opinion, requires to be
regulated in consequence of the repeal or amendment of any Act
in terms of paragraph (a).
Section 38(2)(a) provides that if through a law made under s 38(1)
legislative power is conferred upon any body, legislation thus
promulgated by such body shall have effect only after it has been
approved by the State President.
Legislation by the State President
Relying upon s 38(1) of the Act the State President by Proclamation
180 of 1977 established the office of Administrator-General for
442
SOUTH AFRICAN JOURNAL ON HUMAN RIGHTS
Namibia. At the same time he promulgated Proclamation 181 of 1977
which sought to empower the AG to make laws, by proclamation in
the official gazette of Namibia, for that territory and in any such law
to repeal or amend any legal provision, including any Act of Parliament in so far as it relates to or applies in that territory or is connected
with the administration thereof or the administration of any matter by
any authority therein. In other words, the State President interpreted
his (delegated) power as including the power to vest full and plenary
legislative powers also in a creature of his own making.
Legislation by the Administrator-General
Pursuant to the powers conferred on him by Proc 181 of 1977, the AG
promulgated Proc AG 9 of 1977 (the so-called Security Districts
Proclamation), whereby he empowered himself or his delegate to issue
orders imposing curfews (s 3(l)(a)(v) and (vi)). Acting by virtue of his
own authorization, he subsequently issued Orders AG 26 of 1978 and
AG 50 of 1979, which contain individual curfew provisions.
THE COURTS
DECISION
The decision of the unanimous court was delivered by Joubert JA. He
held that the powers conferred by Parliament in s 38(1) on the State
President were so-called plenary legislative powers. This, according to
Joubert JA, implied that although the exercise of the State President's
powers could be attacked as being ultra vires, it could not be
invalidated on the ground of being unreasonable or because it
involved some restriction on the liberty of the subject or of his rights
to property.
Next the court held that the State President, acting by virtue of
s 38(2) of the Act and in pursuance of Proc 181 of 1977, validly
conferred the above-mentioned full or plenary legislative powers-in
substance as extensive as those of Parliament itself-upon the
AG.
Following upon this ruling, it was held that since s 3(l)(a)(v) and
(vi) of Proclamation AG 9 of 1977 fell within the ambit of the plenary
legislative powers of the AG, it was intra vires. Moreover, its validity,
according to the court, cannot be impugned on account of its
unreasonableness or vagueness.
Finally, in like fashion, the court ruled that Orders AG 26 of 1978
and AG 50 of 1979, in spite of a slight textual variance and the
introduction of an exemption, were not ultra vires, and that, like their
respective enabling provisions (i e s 3(l)(a)(v) and (vi) of Proc AG 9 of
1977), they cannot be invalidated on the grounds of unreasonableness
or vagueness.
443
CASES AND COMMENTS
DELEGATION OF LEGISLATIVE POWERS TO ADMINISTRATIVE
BODIES
The principle
Parliamentary supremacy, evidenced therein, inter alia, that no court
of law may invalidate an Act of Parliament (s 32(3) of the Republic of
South Africa Constitution Act 110 of 1983), implies that Parliament
may freely vest legislative powers in any other body. Such body need
not even be another legislature. For instance, the judiciary is
sometimes vested with legislative power, eg the authorization of the
chief justice to issue rules for the regulation of the Supreme Court
(s 43(2)(a) of the Supreme Court Act 59 of 1959). But the authority to
legislate is most frequently conferred upon administrative (executive)
bodies such as ministers or the State President. Indeed, measured by
volume, administrative legislation far outweighs parliamentary
legislation.
The general principle applicable to delegation is that the delegatee
may not further delegate his authority unless permission has been
granted thereto in the enabling legislation. The South West Africa
Constitution Act, which confers authority on the State President to
legislate, further seems to determine-if only indirectly or by
implication-that he may authorize another body to exercise legislative powers (s 38(2)(a)). Indeed, this is what the State President has
done through the promulgation of Proc 181 of 1977, whereby he
delegated his full power under s 38(1) to the AG. In other words, one
executive body hereby authorizes yet a further administrative body to
make laws. Moreover, s 38(2)(b) by implication provides for a further
delegation of the above-mentioned power by a body like the AG to yet
another body. The only condition attached to the valid exercise of the
delegated powers in question is that, in the first instance, the approval
of the State President is required (s 38(2)(a)), while in the second
instance, the approval of the delegator (such as the AG) is
required (s 38(2)(b)).
While the principle that legislative functions should be conferred
upon administrative bodies may be justified (cf Baxter at 194-5), the
sub-delegation by an administrative body of such power to yet a
further administrative or other body gives rise to grave concern,
especially where the power is as extensive as in the above instances.
This may lead to a further multiplication of bodies which exercise
legislative functions, but which have been selected for this important
task by an administrative body and not by Parliament. Moreover, if
the contention is accepted that the State President exercises plenary
powers (explained infra), it would imply that each of these bodies
likewise exercise such powers, with its attendant consequences,
particularly the immunity from full control by the courts (cf page 447).
This particular case illustrates that 'plenary' powers are interpreted to
include the power to confer the same power to officials in perpetuity,
that is up to the level of the local clerk. And if the existing officialdom
444
SOUTH AFRICAN JOURNAL ON HUMAN RIGHTS
is not attractive enough, new officials may be created and given that
power-also to sub-delegate as they wish.
Scope
(i) Effect of legislative acts
While executive (or purely) administrative acts establish an individual
relationship whereby usually only a particular individual is affected,
legislative administrative acts bring about a general relationship
which is impersonal and usually affects the public generally, thereby
necessarily ignoring specific circumstances that may prevail in respect
of particular individuals (cf M Wiechers Administrative Law (1985)
57ff; Baxter at 523). Moreover, the relationship endures for as long as
the legislation remains in force, with the result that its application
often has only a tenuous connection, if any, with the original decision
by the body to enact the particular legislation. In principle, therefore,
legislative powers are of a more extensive nature than other administrative powers, implying that the need for control is correspondingly greater.
(ii) The concept of plenary legislative power
'Plenary' means of full scope or extent; complete or absolute in force
or effect. Plenary legislative power, in the full sense of the phrase,
would be the power enjoyed by Parliament. The Republic of South
Africa Constitution Act (s 30) determines that Parliament, as the
sovereign legislative authority for the Republic, has full power to
make laws for the peace, order and good government of the
Republic.
Apart from s 38(l) of the South West Africa Constitution Act, other
statutes confer upon the State President powers which, likewise,
appear to be about as extensive as can be imagined, being comparable
to the plenary power of Parliament.
For instance, the Black Administration Act 38 of 1927 (s 25), read
with the Republic of South Africa Constitution Act (s 93) vests the
control and administration of black affairs in the State President,
who, for this purpose, may even amend or repeal Acts of Parliament
by proclamation. Legally, he may therefore be regarded as the
Isupreme chief' of the black population in certain black areas (cf
F Venter 'Die Staatspresident se posisie in die Bantoestaatsreg' (1972)
35 THRHR 330). In like fashion, the Public Safety Act 3 of 1953
(s 3(l)(a)) authorizes the State President to make regulations which he
considers necessary or expedient, inter alia, for providing for public
safety or the maintenance of public order.
The above-mentioned powers are so extensive that they seem to
rival those of Parliament; indeed, at one point they were described as
being equal with the powers of Parliament (cf R v Maharaj
1950 (3) SA 187 (A) at 194D; R v Maphumulo 1960 (3) SA 793 (N) at
CASES AND COMMENTS
44)
798G-799B; Binga v Cabinetfor South West Africa 1988 (3) SA 155 (A)
at 183G-184A). The Appellate Division in Staatspresident v United
Democratic Front 1988(4) SA830(A) at 848E-851J referred to
decisions in which such a view was held but went on to reject the
contention that the State President's legislative power can be equated
with that of Parliament.
It is submitted that the only body which is vested with plenary
legislative power is Parliament. Even if the position is considered
purely according to the scope of the respective powers, it is evident
that Parliament's power, as defined in the Republic of South Africa
Constitution Act, is all-embracing, whereas the State President's
powers, awesome though they undoubtedly are, are limited to a
specific subject or field, ie Namibian independence, black affairs or.
public order and safety. (For further limitations upon the wide legislative powers of the State President, see G C Kachelhoffer Die Betekenis
van Ondergeskikte Wetgewing vir die Administratiefreg in Suid-Afrika
(unpublished LLD thesis UNISA (1972) 180-7.) However, there are
more fundamental reasons why his powers cannot, like those of
Parliament, be regarded as being of a plenary nature. These reasons
are connected with the subordinate status of the State President's and
the AG's legislation.
Subordinate status of the State President's and Administrator-General's
legislation
The true nature of legislation enacted by the State President and the
AG is fully understood only when the various forms of control over
such legislation are considered.
(i) Control by Parliament and the concept of original legislative
power
In the first place, legislation enacted by the State President and the
AG is subordinate legislation in the sense that it is subordinate to
Parliament. In fact, all legislation other than parliamentary legislation
constitutes subordinate legislation in the above sense. This applies
even to provincial ordinances.
It is true that the erstwhile provincial councils were labelled as
original legislatures, but this was due, first, to the fact that their
legislative power, like that of Parliament, was drawn from the South
Africa Act of 1909, which was an Act of the British Parliament (cf
Middelburg Municipality v Gertzen 1914 AD 544 at 550; Bloemfontein
Municipality v Bosrand Quarries(Prop)Ltd 1930 AD 370 at 378). In other
words, their authority was not derived, initially, from the South
African Parliament and may in that sense be labelled 'original',
although this label has since been imposed upon all provincial
ordinances, also those deriving their validity from South African
parliamentary legislation (cf Pretoria City Council v South African
SOUTH AFRICAN JOURNAL ON HUMAN RIGHTS
Organ Builders (Pty) Ltd 1953 (3) SA 400 (T) at 408B-C). Nevertheless,
there is no doubt that they always stood in a subordinate position as
far as Parliament is concerned. This subordinate status is reflected
therein, inter alia, that an ordinance may not be repugnant to an Act
of Parliament and that Parliament may repeal any ordinance. In any
case, Parliament has demonstrated its power in a definitive manner
by abolishing the provincial councils.
A further reason why provincial ordinances were regarded as
original enactments, as was indicated in Middelburg Municipality v
Gertzen (supra at 550), may be ascribed to provincial councils' characteristic of being deliberative legislative bodies. However, if this should
be the only qualification, the bylaws of town councils would also have
had to be regarded as original enactments (cf Lourens du Plessis &
H J Erasmus (1988) 105 SALJ 763 at 767). There is, none the less, no
doubt that such bylaws constitute subordinate legislation, although
the fact that local authorities qualify as deliberative legislative bodies
has served as the basis for the courts' application of the doctrine of
benevolent interpretation, when reviewing the validity of bylaws
(Baxter at 490-4).
The third factor which has featured in the labelling of provincial
ordinances as original or plenary enactments is the wide scope of the
legislative powers which had been entrusted to provincial
councils.
It is only this latter feature which the proclamations of the State
President and the AG to some degree have in common with the
provincial ordinances. However, this has not deterred our courts on
occasion to attach the adjective 'original' to such enactments. In
enacting Proc 181 of 1977, the very subject of the instant case, the State
President was thus described as an original legislator in Beukes v
Administrateur-Generaal,Suidwes-Afrika (1980 (2) SA 664 (SWA) at
675A-D). Although the powers of the State President and of the AG
were described in Kauluma as 'plenary', rather than as 'original', the
same meaning was obviously intended and their effect as being
largely immune to judicial review was upheld, as has been
shown above.
Although the State President, unlike the former provincial councils,
is empowered by the South West Africa Constitution Act to amend or
repeal even parliamentary legislation, his legislative power, nevertheless, is subordinate, as already appears from the provisions of s 38(6)
and (7) of the South West Africa Constitution Act, as well as from the
fact that Parliament can at any time amend or repeal any proclamation by him, or, for that matter, may repeal the Act-in which the
State President's authorization is contained-itself. What has been
said of the State President's powers, applies equally to those of the AG
or any other delegate.
It is true, as D A Botha ('Aliquando Delegatus Delegare Potest'
CASES AND COMMENTS
44/
(1980) 13 De Jure 398) contends, that the AG exercises his legislative
powers in his own right and thus does not promulgate his proclamations in the name of the State President. However, it is submitted that
this is no justification for his conclusion that the AG and the State President on this account enjoy original legislative powers. His contention is
based upon a distinction between different relationships arising in the
context of the delegation of administrative powers (cf Wiechers at 51 ff).
It is submitted that Parliament's ultimate legislative supremacy renders
inappropriate the identification of a relationship between Parliament
and any other body as being one of decentralization, with the implication that Parliament has transferred its original or plenary legislative
power. Only Parliament enjoys such power and this has never been
delegated. In any case, the above relationships have been identified only
between different administrative bodies, not between Parliament, or
another legislature, and an administrative body.
Botha wants to determine the question of the nature of the AG's
powers solely in terms of an investigation into the scope of his powers.
He even argues that in such cases the delegatus non potest delegare
rule does not apply. This view cannot be supported. Both the State
President and AG are creatures of statute. They enjoy no inherent
legislative powers. Their powers in this regard are derived from an Act
of Parliament and remain delegated and subordinate in nature. By
limiting the whole discussion, as he does, to a question of whether the
action taken was intra vires the rather wide powers as created by a
compliant legislature, the delegatus rule becomes redundant.
(ii) Control by the courts
There is no doubt that the State President's legislation, like provincial
ordinances, but unlike Acts of Parliament, may be invalidated on
account of its being ultra vires in the narrow sense of going beyond
the vires-wide though their scope may be- which have been entrusted to the State President's legislative jurisdiction. This is
acknowledged by Joubert JA.
The crucial issue, however, is whether the State President's
proclamation-and proclamations by the AG or other bodies to
whom legislative power has been sub-delegated in terms of the South
West Africa Constitution Act-may be impugned on the traditional
grounds upon which subordinate legislation may be invalidated, i e
those of unreasonableness and vagueness. As has been noted above,
the court in Kauluma refused to regard the above proclamations as
being subject to such control.
The court for this view relied upon Binga's case (supra) in holding
that the State President's powers under s 38(1) of the South West
Africa Constitution Act were of a full and plenary nature and
considered such powers as being analogous to the powers possessed
by provincial councils before their demise. It is submitted, with
448
SOUTH AFRICAN JOURNAL ON HUMAN RIGHTS
reference to the previous two paragraphs, that the State President's
legislative powers cannot be regarded as plenary and certainly are not
as wide as those entrusted to Parliament. Moreover, they cannot be
put on a par with the powers enjoyed by the erstwhile provincial
councils. Those powers were 'original' only in a rather technical sense,
as has been explained. The State President's powers are not original
in that sense.
An even more fundamental reason why his position cannot be
equated with that of the former provincial councils relates to the
different nature of the respective bodies: The provincial councils were
elected legislatures and their legislation was preceded by deliberations
held in public. Neither of these conditions -which served as political
controls -applies to the State President. Political accountability and
legitimacy in the form of an electoral mandate, as Baxter (at 494)
points out, does provide some justification for the judicial restraint
which our courts tend to exercise in respect of representative and
accountable legislatures. No such deference should be accorded to
legislation made by an executive body such as the State President. In
short, his proclamations, as true subordinate legislation, should be
subject to the normal control by the courts over such legislation. It is
submitted
-contrary
to the decision in Kauluma- that the State
President's Proc 181 of 1977 should be susceptible to control, not only
on the grounds of ultra vires in the narrow sense, but also on account
of its unreasonableness or vagueness. The same position should
prevail also with regard to the AG's Procs AG 9 of 1977 and orders
AG 26 of.1978 and AG 50 of 1979, all of which constitute subordinate
legislation. S v Werner 1980 (2) SA 313 (W) at 321A-C and Omar v
Minister of Law and Order 1987 (3) SA 859 (A) at 892G-H provide
authority to refute the proposition that merely because Parliament
conferred wide legislative powers upon an administrative body, the
exercise of those powers in the form of the enactment of
proclamations or regulations should be immune to judicial review.
On the contrary, they should, as subordinate legislation, be subject to
the traditional scope of judicial review, as was demonstrated in the
above-mentioned cases. In fact, the vast scope of legislative powers
exercised by an administrative body renders effective control
imperative.
The very fact that executive organs have been endowed with such
wide legislative powers, should result in the courts being rather more
critical of the manner in which they are exercised. It is submitted that
the absence of a truly legislative character on the part of both the State
President and the AG should be taken into account. The true nature
of the body involved is of direct importance when it comes to a determination of the validity of its actions. This is, after all, part of the
justification for drawing a distinction between legislative, executive
and judicial branches of government.
449
CASES AND COMMENTS
Perhaps it should also be recalled that it was exactly this point, the
nature of the organ involved and not the formal bestowing of a power
through an Act of Parliament, which formed the basis of a former
famous judgment of the Appellate Division. In Minister of the Interior v
Harris 1952 (4) SA 769 (A) it was ruled that the High Court of Parliament was no court of law. This conclusion was reached inter alia by
looking at the substance and not merely the form of the Act, whether
the High Court of Parliament is in fact a Court of Law. 'The Courts
are bound by a definition in a legislative enactment in so far as that
enactment falls within the powers of the Legislature, but when the
question is whether or not those powers have been exceeded, the
definition itself is in issue along with the whole enactment, and the
enactment must be judged by its substance and not by the nomenclature it uses' (per Centlivres CJ at 783C-D).
When the rationale for allowing delegation is the fact that administrative experts should implement general policy as laid down by the
legislature, it cannot really be faulted. When, however, too much
discretion is delegated, as happened in the Kauluma case,
Parliament's basic legislative function is forfeited. The just and acceptable exercise of a delegated power fundamentally depends on the
extent to which the legislature has established objectives and
standards before allowing implementation by the executive. In terms
of such a test, the practical dictates of the modem state on the one
hand and of democratic government and respect for the separation of
power on the other, may be reconcilable. Kauluma'scase confirms that
Parliament in effect has abdicated its primary legislative function in
favour of administrative bodies. Likewise, the Appellate Division
failed to apply a well-established principle of administrative law. It
thereby relinquished its responsibility of serving as an effective buffer
between administrative bodies and individuals. As Mr Kauluma
discovered.
ANDRI
RABIE
Professor of Law
University of Stellenbosch
GERHARD ERAsMus
Professor of Law
University of Stellenbosch