Judicial review of executive power : legality, rationality and reasonableness (part 1)

• Author: Chuks Okpaluba
• DOI: 10.10520/EJC197701
• Published date: 01 January 2015
• Date: 01 January 2015
• Pages: 122-152

Judicial review of executive power:

Legality, rationality and reasonableness

(Part 1)

Chuks Okpaluba*

Abstract

Early in the life of the South African democratic dispensation, the 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 a 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 p residential appointment of the Director of the

National Pros ecuting 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 made 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 c ode of

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

1 Introduction

It is well-known in contempo rary constitutional jurisprudence that the institution

among the organs of state created by the Constitution as the independent

machinery ‘vested with the power of judicial review to determine the legality of

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

*

Judicial review of executive power: Legality, rationality and reasonableness 123

executive [conduct] and the validity of legislation passed by the legislature’ is the

1

judicial branch. In the discharge of this arduous task, the courts employ the

2

constitutional principle of legality which, when coupled with that of the supremacy

of the Constitution, enables them to ensure that both the legislature and the

executive act within the authority of the Constitution and in compliance with the

rule of law.

It is thus the province of the court to dete rmine whether, in any given

circumstance, the limits of constitutional authority have been transgressed by any

organ of State and, where such act or conduct is inconsistent with the

Constitution, to declare that act or conduct unconstitutional and invalid.

3

‘Constitutionality’ refers to the testing powers of the courts thr ough judicial

review as to whether the acts of the legislature or the conduct of the executive

conform to the letter and spirit of the powers conferred upon them by the

Constitution. The Constitutional Court of South Africa somehow prefers the term

‘legality’ to embrace the issues of constitutionality which rightly belongs to the

enquiry based on the ascertainment of the validity of power exercised on the

strength of the constitutional mandate. The term ‘legality’ has its roots at common

law having supplanted the traditional ultra vires doctrine as a ground for

impugning executive decisions and administ rative actions within the

administrative law sphere.4

Bhagwati J in Minerva Mills Ltd v Union of India AIR (1980) SC 1789 at 1825 and Bhagwati CJ in

1

Sampath Kumar v Union of India AIR (1987) SC 386 at 388.

Quite apart from the provisions c onferring upon the courts the jurisdiction to enforce the

2

fundamental rights in the Constitutions, eg s 38 of the Constitution of the Republic of South Africa,

1996 (19 96 Constitution); art 25 of the Constitution of the Republic of Namibia, 1990 and the

remedies provis ions of s 172(1)(a) of the South Afri can Constitution, the sheer wording of the

fundamental rights provisions in themselves constitute an im perative to the executive and the

legislature and a command to the courts such that even in the absence of the said enforceme nt

provisions, each and every right thereby entrenched could be enforced in the courts without more

ado. In contrast to the foreg oing proposition is the wording of the socio-economic righ ts of ss 26

and 27. This marks a clear exception to the directive and mandatory nature of these rights, hence

the difficulties encountered by the courts in directly enforcin g the rights to access to hea lth care

services in Soobramoney v Minister of Health, KwaZul u-Natal 1997 12 BCLR 1696 (CC)

(Soobramoney); and the provision of free nevirapine, the anti-retroviral drug, to prevent mother-to-

child transmission of HIV/AIDS in President of the Republic of South Africa v Treatment Action

Campaign 2002 10 BCLR 1033 (CC) (TAC); as well as housing and shelter in Government of the

Republic of South Africa v Grootboom 2000 11 BCLR 1169 (CC) (Grootboom).

See, eg, ss 2 and 172(1) of the Constitution. Even in Constitutions where no provisions similar to

3

those in the South African Constitution exist, such as the United States and Australia, the courts

have assumed jurisdiction to exercise powers of judicial review over the leg islation of parliament

and executive conduct – Marbury v Madison 5 US 137, 2 L Ed 60 (1803); Australian Communist

Party v Commonwealth (1951) 83 CLR 1 and O’Toole v Charles David Pty Ltd (199 0) ALJ 618.

See, eg, Council for Civil Service Unions v Minister for the Civil Service [1985] AC 374 (HL).

4