Delegated or Subsidiary Legislation

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Legislation can be divided into–

  • primary legislation, that is legislation passed by Parliament; and
  • subsidiary or subordinate legislation, that is legislation created by bodies or individuals under powers delegated to them by Parliament. These powers empower them to create such legislation.

 

Section 134 of the Constitution has the following provisions relating to subsidiary legislation:

 

134 Subsidiary legislation

Parliament may, in an Act of Parliament, delegate power to make statutory instruments within the scope of and for the purposes laid out in that Act, but—

(a) Parliament’s primary law-making power must not be delegated;

(b) statutory instruments must not infringe or limit any of the rights and freedoms set out in the Declaration of Rights;

(c) statutory instruments must be consistent with the Act of Parliament under which they are made;

(d) the Act must specify the limits of the power, the nature and scope of the statutory instrument that may be made, and the principles and standards applicable to the statutory instrument;

(e) statutory instruments do not have the force of law unless they have been published in the Gazette; and

(f) statutory instruments must be laid before the National Assembly in accordance with its Standing Orders and submitted to the Parliamentary Legal Committee for scrutiny.

 

Types of delegated legislation

 

There are various types of delegated or subsidiary legislation. Subsidiary legislation is contained in Statutory Instruments. (The title Statutory Instrument was adopted as from SI 381 of 1979. Prior to this, what are now known as Statutory Instruments were referred to previously as Government Notices. This designation applied up to GN 380A of 1979.) “Statutory Instrument” is defined in s 3 of the Interpretation Act [Chapter 1:01] to mean “any proclamation, rule, regulation, by-law, order, notice or other instrument having the force of law, made by the President or any other person or body under any enactment.”

 

There are various particular types of subsidiary legislation that will be published as statutory instruments published in the Government Gazette –

  • . For example, the President has power to make proclamations on such matters as the proroguing of Parliament and the setting of the date of an election. These proclamations are published in the Government Gazette.
  • . For example, local authorities such as urban councils have power to make by-laws. (See, for instance, the provisions of the Urban Councils Act [Chapter 29:15].)
  • . For example, the Minister has power in terms of s 159 of the Rural District Councils Act [Chapter 29:13] to make regulations for various purposes and the Zimbabwe Electoral Commission has the power in terms of section 192 of the Electoral Act [Chapter 2:13] to make regulations on various matters pertaining to the holding of an election.
  • Orders. For example, various orders can be made by the Minister and certain other authorities in terms of the Exchange Control Act [Chapter 22:05]
  • Notices. For example in terms of s 13 of the Shop Licences Act [Chapter 14:17] the Minister has the power to issue a notice adding or removing trades or business specified in the First Schedule.
  • . For example, the courts have power to make rules governing their own procedures.

 

Section 134 of the new Constitution lays down that Parliament can, in an Act of Parliament, delegate power to make statutory instruments within the scope of and for the purposes laid out in that Act but it must not delegate its primary law-making power. This accords with the doctrine of separation of powers in terms of which Parliament is the law-making body and the executive administers the country within the confines of the powers given to it by Parliament.

 

It then goes on to lay down a series of requirements for statutory instruments. These are that a statutory instrument must be consistent with the Act of Parliament under which it is made and must not infringe or limit any of the rights and freedoms set out in the Declaration of Rights. Further a statutory instrument will not have the force of law unless it has been published in the Government Gazette and each statutory instrument must be laid before the National Assembly in accordance with its Standing Orders and submitted to the Parliamentary Legal Committee for scrutiny.

 

Reasons for delegated legislation

 

In the modern State, central government intervenes in many spheres and regulates a many different activities. Its activities will include such measures aimed at providing employment, housing, medical services, transport, food supplies, energy and rural development.. Parliament itself cannot realistically be expected to pass all the multifarious rules and regulations necessary to run the complex modern State. Thus, what often happens is that Parliament passes legislation that simply establishes broad policies and then delegates to subordinate authorities the power to pass subsidiary legislation in order to bring those broad policies into effect in detailed form. The delegate may, for instance, be a Minister who is able to call upon technical expertise within his Ministry when deciding how the broad policies can best be brought into operation, or the delegate could be a local authority which is able to decide how best to implement the policies in the light of local conditions.

 

Need for controls

 

Although it is now accepted that in the modern State delegated legislation cannot be avoided, there is nonetheless concern that the exercise of delegated legislative powers be properly controlled to ensure that they are not abused to the detriment of citizens.

 

Types of control

 

Parliamentary controls

 

One of the most effective controls is for Parliament in the first place carefully to spell out the limits of the delegate’s law-making powers so that there can be no doubt when the delegate is exceeding his powers. If the provisions in the enabling legislation that set out the powers of the delegate are vague or ambiguous then the limits of the powers of the delegate will be unclear and control over the exercise of these powers will be made more difficult.

 

The primary legislation should also spell out clearly–

  • which person or body is to exercise the power to create subsidiary legislation;
  • for what purposes such delegation may be created and the factors the delegate is to take into account when creating the legislation.

 

There are also certain controls that are applied after subsidiary legislation has been passed. In terms of s 36 of the Interpretation Act [Chapter 1:01], copies of all delegated legislation must be laid before Parliament on one of the thirty days on which Parliament next sits after publication of such delegated legislation in the Gazette.

 

Given the many other calls upon the time of Parliamentarians, it is unlikely that they will scrutinise much of the huge amount of delegated legislation that is laid before the House. Presently, there is no specialist Parliamentary sub-committee tasked with examining delegated legislation to ensure that the delegated authority has not been abused. What we have is the Parliamentary Legal Committee. This Committee is required to scrutinise all statutory instruments published in the Gazette, and any draft statutory instruments referred to it, to determine whether any of their provisions would contravene any of the provisions of the Constitution. If it considers that that is a contravention of the Constitution, it must report this Parliament or to the Vice-President, Minister or authority (See s 152(3) of the Constitution.) it If the Parliamentary Legal Committee considers that a statutory instrument is ultra vires the enabling Act or the draft statutory if enacted would be ultra vires the enabling Act it must report this to Parliament or to the Vice-President, Minister or authority concerned (See s 152 (4) of the Constitution.)

Section 9 of the Fifth Schedule to the Constitution deals with what happens after the Parliamentary Legal Committee has reported that a provision of a statutory instrument contravenes the Constitution.

 

Firstly, the Committee may withdraw the report if it is satisfied that the provision has been repealed or amended in such a way as to remove the contravention. (s 9(1) )

 

Secondly, if after considering the report of the Committee, the Senate or National Assembly resolves that the provision does contravene the Constitution, the Clerk of Parliament must report the resolution to the authority which enacted the instrument. The authority must then within 21 days of the notification either

  • repeal the statutory instrument; or
  • apply to the Constitutional Court for a declaration that the statutory instrument is in accordance with the Constitution.

If the authority applies to the Constitutional Court for such a declaration, the statutory instrument is suspended pending the Court’s decision.

 

As regards a report by the Parliamentary Legal Committee that a provision in statutory instrument is ultra vires the enabling Act, if after considering such a report the Senate or the National Assembly resolves that the statutory instrument is ultra vires the enabling Act, the provision will cease to have effect. The Clerk of Parliament must then without delay publish a notice in the Gazette notifying the public of the resolution and its effect.

 

The Constitution in s 152(5) also provides that an Act of Parliament or Standing Orders may confer further functions on the Parliamentary Legal Committee. Paragraph 201 of the Standing Rules and Orders of Parliament provides that in addition to the functions set out in the Constitution, the Parliamentary Legal Committee will have the additional functions of ensuring that no statutory instrument–

  • contains matters more appropriate for parliamentary enactment;
  • makes the rights and liberties of persons unduly dependent upon administrative decisions which are not subject to review by a judicial tribunal; and
  • changes an Act of Parliament.

 

The Committee is also given powers in terms of the Standing Orders–

  • to call for the correction of any error or omission in a statutory instrument or a Bill;
  • to ensure that no bill derogates from the exercise of legislative power;and
  • to review existing law and interact with the Law Development Commission.

 

Court controls

 

For subsidiary legislation to be valid, it must satisfy a number of requirements. If these requirements have not been satisfied, a person who is directly affected by the subsidiary legislation, or who is being prosecuted under that legislation, can challenge the validity of the legislation. The court must then make a ruling on whether or not the legislation is valid. The requirements for validity of delegated legislation are these–

 

Promulgation

Both under common law and in terms of s 51(5) of the Constitution of Zimbabwe all legislation becomes binding, unless otherwise specified, only when it is promulgated, that is, published in the Government Gazette. This requirement is also laid down in s 20 of the Interpretation Act [Chapter 1:01].) See also R v Gluck1923 AD 149 at 151.

 

In the case of Hayes v Baldachin & Ors (2) 1980 ZLR 422 at 427(S); 1981 (1) SA 749 (ZS) at 754, Fieldsend CJ said this–

 

It is a recognised principle in Zimbabwe that no law becomes effective until it has been published in the Gazette. But the general rule that before a law or any regulation or by-law having the force of law can become operative it must be duly promulgated, must be read subject to the qualifications that the word ‘law’ in the rule must not be given too wide a connotation and that the enabling enactment must be looked to in order to see whether the necessity for promulgation is or is not excluded.

 

The court went on to rule that an administrative direction did not have to be promulgated before it became operative.

 

Section 134(e) and (f) of the Constitution now provides thata statutory instrument will not have the force of law unless it has been published in the Government Gazette and each statutory instrument must be laid before the National Assembly in accordance with its Standing Orders and submitted to the Parliamentary Legal Committee for scrutiny.

 

Follow prescribed procedures

Prescribed procedures laid down in the enabling Act for the passing of such subordinate legislation must be fully observed Thus for instance, the procedures laid down for the passing of by-laws in terms of s 228 of the Urban Councils Act [Chapter 29:15] must be fully adhered to otherwise by-laws will be invalid. See R v Kahn 1945 NPD 304 at 307 and R v Carto 1917 EDL 87 at 92.

 

Consistent with general law

Delegated legislation cannot make unlawful something that is lawful under the general law and cannot make lawful something that is unlawful under general law. It must also not interfere with the administration of justice. See van Heerden NO v Queen’s Hotel (Pty) Ltd 1972 (2) RLR 472; 1973 (2) SA 14 (RA); de Villiers v Pretoria Municipality 1912 TPD 626 and Gentel v Rapps [1902] 1 KB 160.

 

There is a presumption against alteration in the common law by statute law, unless the words of the statute are plain and unambiguous and an intention to alter the common law is evident from the wording of the enactment. It is therefore doubtful that subsidiary legislation can be employed to effect an alteration to the common law. See Hama v National Railways of Zimbabwe1996 (1) ZLR 664 (S).

 

Certain and positive

Delegated legislation must indicate with reasonable clarity the act required or prohibited; if it does not do this it may be struck down as being void for vagueness. See Zacky v Germiston Municipality 1926 TPD 380; R v Dembo 1952 (2) SA 244 (T); Naidoo v Pretoria Municipality 1927 TPD 1013; R v Jopp 1949 (4) SA 11 (N); R v Pretoria Timber Co (Pty) Ltd 1950 (3) SA 163 (A); PF ZAPU v Minister of Justice (1) 1985(1) ZLR 261 (H) (Prohibition contained in regulations both ultra vires and void for vagueness); PF-ZAPU v Minister of Justice (2) 1985 (1) ZLR 305 (S); Natural Stone Export Co (Pvt) Ltd & Anor v Director of National Parks and Wildlife Management & Ors 1997 (2) ZLR 215 (H).

 

Delegated legislation must also be positive in the sense that it must contain a clear prohibition or command leaving no doubt that it is to be obeyed; it should not be merely an expression of desire that a certain act should be done or a state of affairs be achieved.

 

Ultra vires

 

The delegate can only create legislation on matters upon which it has been empowered to legislate. If it creates legislation on matters upon which it has not been given power to legislate it is acting ultra vires (beyond or in excess of its powers).

 

See van Heerden NO v Queen’s Hotel 1972 (2) RLR 472 (A); 1973 (2) SA 14 (RA); S v Delta Consolidated (Pvt) Ltd & Ors 1991 (2) ZLR 234 (S) and S v Dube 1977 (2) RLR 108 (G).

 

In Minister of Justice, Law and Order & Anor v Musarurwa 1964 RLR 298 (A); 1964 (4) SA 209 (SRA) the court found there had been improper use of powers delegated under two different Acts to achieve a combined result which is unlawful.

 

If only part of the subsidiary legislation is ultra vires, the court may strike down that part, provided that what is left can stand on its own.

 

In deciding whether the delegated legislation is intra vires the enabling Act, the courts will have to decide whether the power to make that type of legislation was expressly or impliedly delegated to the subordinate authority by Parliament. See S v Delta Consolidated (Pvt) Ltd & Ors 1991 (2) ZLR 234 (S). It will, for instance, consider whether the power was impliedly necessary for or reasonably ancillary to the full and effective exercise of the powers expressly conferred by the enabling statute. See Middleburg Municipality v Gertzen 1914 AD 544 which dealt with the situation when a power is impliedly necessary for or reasonably ancillary to the full and effective exercise of the powers expressly conferred by the enabling statute.

 

Gross unreasonableness

Delegated legislation can be declared ultra vires if it is grossly unreasonable. As laid down in the English case of Kruse v Johnson [1898] 2 QB 91, pieces of legislation can be ruled to be invalid on the grounds of their unreasonableness–

 

... if, for instance, they were found to be partial and unequal in their operation as between different classes; if they were manifestly unjust; if they disclosed bad faith; if they involved such oppressive and gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men, the court may well say, ‘Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires.

 

Baxter at 522-533 argues that gross unreasonableness is present when the provisions are discriminatory or disproportional or are vague and uncertain.

 

The test enunciated in Kruse v Johnson has been adopted in our law in cases such as R v Jeremiah 1956 (1) SA 8 (SR); R v Campbell (Pty) Ltd 1956 (1) SA 256 (SR); Caterers & Entertainers (Pvt) Ltd v City of Salisbury 1974 (2) RLR 65 (G); PF-ZAPU v Minister of Justice, Legal & Parliamentary Affairs1985 (1) ZLR 305 (S); S v Nyamapfukudza 1983(2) ZLR 43 (S) and S v Delta Consolidated (Pvt) Ltd & Ors 1991 (2) ZLR 234 (S).

 

In S v Delta Consolidated (Pvt) Ltd & Ors 1991 (2) ZLR 234 (S) the court ruled that it has inherent jurisdiction to declare null and void subsidiary legislation on the ground that it is ultra vires if it cannot be construed so as to accord with the intention of a reasonable legislature. It is presumed that Parliament, which is the maker of primary legislation, intended that regulations should be imposed only where reasonably necessary to further the objects of the primary legislation.

 

In Marufu v Minister of Transport & Ors2009 (2) ZLR 458 (H) the facts were that the applicant lived in a suburb within the Bulawayo City Council’s area of jurisdiction. The respondent Minister had promulgated the Roads Toll (Regional Trunk Road Network (Amendment) Regulations 2009 (SI 39 of 2009). These regulations declared the Bulawayo-Victoria Falls Road to be a toll road in terms of the Tolls Roads Act [Chapter 13:13] and had fixed a point within the Council’s area of jurisdiction to be a tolling point. The effect of this was that the applicant would have had to pay a toll to access the city, to take his children to school, to go shopping, and so on. The court held that the Minister was an administrative authority in terms of s 2(1)(c) of Administrative Justice Act and as such was enjoined by s 3(1) to act lawfully, reasonably and fairly. The Regulations were partial and unequal in their operation as between people who are ratepayers and residents of the City of Bulawayo. The objective of the location of this toll point, that is, to enhance traffic catchment, was disproportionate to the financial oppression it is causing to residents of the same suburb as the applicant. The declaration was partial and unequal in its operation as between different groups of Bulawayo ratepayers. Delegated legislation can be declared ultra vires the primary legislation if it is grossly unreasonable. Gross unreasonableness is present when the provisions of an enactment entail discrimination, are disproportionate, vague or uncertain, as these regulations were.

 

The onus of proving that regulations are ultra vires on the ground of unreasonableness is on the person who seeks to prove their unreasonableness. See S v Delta Consolidated (Pvt) Ltd & Ors 1991 (2) ZLR 234 (S).

 

The courts, however, cannot review on the grounds of unreasonableness regulations made by a body that has been given direct power in terms of the Constitution to create regulations. See Chairman of the PSC & Ors v Zimbabwe Teachers Association & Ors 1996 (1) ZLR 91 (S).