Sub-Delegation

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Whether or not it is permissible for the delegate to further delegate a law-making power granted to it will depend upon whether the Legislature intended the delegate to exercise the power itself. Sub-delegation will thus be impermissible where the legislature did not expressly or impliedly intend that the power be delegated.

 

Various criteria will be taken into account in deciding whether sub-delegation is permissible. For instance, sub-delegation would not have been envisaged where the legislature had delegated the power to create subordinate legislation to a person or body with special expertise in that field. On the other hand, if the subordinate legislation required was purely mechanical or of a petty nature and many such regulations needed to be passed, the court may decide that sub-delegation was envisaged.

 

In the case of Cargo Carriers (Pvt) Ltd v Zambezi & Ors 1996 (1) ZLR 613 (S) the court said that while it is normal for Ministers, to whom statutory powers and duties are given, to delegate the exercise of those powers and duties to responsible officials in their departments, this does not apply where the Minister is given responsibility of exercising a discretion which nature of the subject matter and the language of the Act show can only be properly exercised in a judicial spirit.

 

See also S v Seedat 1977(1) RLR 102 (A) and Arenstein v Durban Corporation 1952 (1) SA 279 (A).