Judicial review of executive power : legality, rationality and reasonableness (2)

• Date: 01 January 2015
• Pages: 379-405
• Published date: 01 January 2015
• DOI: 10.10520/EJC197717
• Author: Chuks Okpaluba

Judicial review of executive power:

Legality, rationality and reasonableness

(2)

Chuks Okpaluba*

Abstract

For the sak e of context, the abstract of this contribution is repeated below (see (2015)

30(1) SAPL for Part 1 of this article).

Early in the life of the South African democratic dispensation, t he Constitutional Court

distinguished the conduct of the President as the head of the executive branch of

government from an administrative action. However, it held that executive conduct was,

like all exercise of public power, constrained by the constitutional principles of legality and

rationality. So, as a necessary incident of the rule of law, the executive may not exercise

powers or perform duties not conferred upon it by the Constitution and the law. The cases

decided since then demonstrate in practical and theoretical terms the democratic aphorism

that no one is above the law and everyone is subject to the Constitution and the law. In the

process, the Constitutional Court has entertained appeals for the review of executive

powers such as where, inter alia, the President had acted on wrong advice or terminated

the appointment of the head of the National Intelligence Agency; the legality of Ministerial

Regulations and of the rationality of the presidential appointment of the Director of the

National Prosecuting Authority. The role of reasonableness as a ground of review of

executive conduct rather than administrative action has been demonstrated in the many

cases where the distinction has been m ade between the rationality test and the

reasonableness test. The conclusion, therefore, is that, through their interpretation of the

Constitution and review of executive powers, the courts have developed a code of

principles regarding the rule of law, good government, and democracy.

5 Illegality on other grounds

The principles of legality, rationality and reasonableness and their links to

procedural fairness with particular reference to executive conduct and the

LLB, LLM (London), PhD (West Indies), Visiti ng Professor of Law, University of South Africa.

*

380 (2015) 30 SAPL

instances where the right to be heard has been upheld or denied in respect of

executive conduct is discussed is discussed in part 1 of this article. In this second

and final part, the other aspects of the challenges of the unconstitutionality of the

executive conduct not yet discussed are brought tog ether.

5.1 Presidential function and constitutional responsibility

It has already been observed that the executive power of the Republic of South

Africa is vested in the President by the Constitution. Section 84 of the Constitution

relates to the functions of the President as both Head of State and Head of the

National Executive. The executive authority of the Republic – which the President

exercises together with the members of his Cabinet – is set out in section 85. The

Constitutional Court has had occasion to draw a distinction between these two

provisions in Minister for Justice and Constitutional Development v Chonco. The

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applicants for presidential pardon had alleged that the Minister failed to process

their applications made under section 84(2)(j) and the question was whether that

failure amounted to a breach of a constitutional obligation of the Minister in her

capacity as m ember of the national executive under section 85(2)(e) of the

Constitution. It was contended that the Minister had no constitutional obligation

to process the applications for pardon, since the function was vested exclusively

in the President as the Head of State in terms of section 84(2)(j). In the

alternative, it was averred that the failure by the Minister to take a decision

regarding each of the applications constituted administrative action and was

reviewable under section 6(2)(g) of PAJA.

It was held that the final decision to grant or not to grant a pardon and the

constitutional responsibility for that decision rested with the President as the head

of State; and that what separated the President’s exercise of powers and

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functions under section 84 from the exercise of executive powers by the

President, together with other members of his Cabinet in terms of section 85(2),

was that the former were perf ormed collectively by the President and members

of his Cabinet. In the present case, there was no collective action and as with the

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President’s unrestricted power to initiate the preliminary process, the President

had the power to make a final decision that did not have to bear any reference to

the recommendation made during the preliminary process. Langa CJ held that if

the preliminary process were to be treated as a collective action, then, the result

would be to ‘prevent the President from exercising a function and power accorded

solely to him or her, so frustrating his or her powers as Head of State. The

President must accordingly retain the sole ability to remove his or her instructions,

2010 4 SA 82 (CC).

1

Id para 35.

2

Id para 37.

3