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

Date01 January 2015
Pages379-405
Published date01 January 2015
DOI10.10520/EJC197717
AuthorChuks 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
1
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
2
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
3
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

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