Ultra vires action

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Introduction

 

All administrative powers (other than those exercised by domestic tribunals) derive from statute and the nature and extent of those powers are to be found in the statutory provisions granting these powers. Such powers are not unlimited: the Legislature will not grant unlimited power but instead it will give powers for certain purposes only, or subject to special procedures or with some other kinds of limits. In other words, the limits upon the power are to be discovered by examining the statutory provisions in order to decide what powers the Legislature has expressly or impliedly granted. The exercise of a power by an administrative official or body will be invalid unless the official or body is authorised to exercise that power. If an administrator purports to exercise a power he or she does not have, or acts in excess of a power he or she possesses, his or her action will be invalid on the basis that it is ultra vires.

 

This proposition is illustrated in the case of B-Sky Energy (Pvt) Ltd v Minister of Energy & Anor 2009 (2) ZLR 241 (H) The second respondent, an official in the Ministry of Energy, prevented the applicant from importing a load of diesel fuel into the country. The reasons given were that the sulphur content was above the standards determined for Zimbabwe. His actions were subsequently supported by the first respondent, the responsible Minister. The applicant was one out 15 importers of fuel of the same quality, which came from the same source in South Africa, but the other importers were not prevented from importing their consignments. In justifying his actions, the Minister claimed that he was exercising his constitutional mandate to give general direction and control over his Ministry and departments in terms of s 31D of the Constitution. He also claimed cabinet authority and directives as justification of his conduct. Finally, he sought to argue that as a government Minister he placed the embargo on the diesel in the public interest because it constituted a harmful substance in terms of the Environment Management Act [Chapter 20:27].

 

The court held that while it was correct for the Minister to say that, as the minister, he had a constitutional duty to exercise general direction and control over his Ministry or departments, that constitutional mandate must be exercised within the strictest confines of the law. It cannot and must not be used as a vehicle to act outside those confines. All administrative powers (other than those exercised by domestic tribunals) derive from statute and the nature and extent of those powers are to be found in the statutory provisions whereby these powers have been granted. Such powers are not unlimited. The legislature gives power for specific purpose only, or subject to special procedures or with some other kinds of limits. The exercise of a power by an administrative official or body will be invalid unless the official or body is authorized to exercise that power. If an administrator purports to exercise a power he does not have or acts in excess of a power he possesses, his action will be invalid on the basis that it is ultra vires. The Minister’s resort to cabinet authority and directives as justification of his unlawful conduct was equally misplaced and without merit because the cabinet has no legislative authority. Laws are made in Parliament and not in cabinet.

 

The Environmental Management Act defines “Minister” as the minister of Environment and Tourism or any other minister to whom the President, may from time to time, assign the administration of the Act. As the first respondent was not the Minister of Environment and Tourism, nor had the administration of the Act been assigned to him, his conduct in assuming responsibility over the Act without presidential authority was unconstitutional and unlawful. In any event, neither the Act nor regulations made under it authorized any minister to place an embargo on any fuel on the basis that its specifications constituted a hazardous substance or was harmful to motor vehicles.

 

The court held further that although the second respondent was acting in the course of duty as a civil servant, he was not entitled to act unlawfully. A civil servant who acts unlawfully in the course of duty attracts personal liability for the simple reason that he is not employed to discharge his duties contrary to law. He could therefore not object to being sued in his personal capacity.

 

The action can be ultra vires if the administrative official or body acts in any of the following ways.

 

Does wrong thing

 

If the purported action is not within the scope of the powers granted by the enabling statute, it will be ultra vires. Section 5(b) of the Administrative Justice Act provides in deciding whether administrative action is lawful the High Court may have regard to whether or not “the enactment under which the action has been taken authorises the action.”

 

In order to determine whether the administrative authority has acted ultra vires, the court will obviously have to interpret the statutory powers in question to ascertain what powers have been allocated, expressly or impliedly by the empowering legislation. The courts will, for instance, imply certain ancillary powers where these are necessary in order for the express powers to be exercised. See JCI Co v Marshalls Township Syndicate Ltd 1917 AD 662 and Johannesburg Municipality v Davies 1925 AD 395

 

If the administrative authority assumes jurisdiction where it has none, it will also be acting ultra vires its powers. Section 5(a) of the Administrative Justice Act provides in deciding whether administrative action is lawful the High Court may have regard to whether or not “the administrative authority has jurisdiction has jurisdiction in the matter.”

 

In the case of Witham v Director of Civil Aviation 1983 (1) ZLR 52 (H) the civil aviation authorities were empowered to impose limitation on a pilot’s licence but it was not permitted to impose a condition that prevents the person from flying at all unless pilot meets a particular requirement

In Union Government & Anor v West 1918 AD 556 the disciplinary body had no jurisdiction to deal with the matter in question.

In Roberts & Letts v Fynn 1920 AD 23 a poundmaster wrongly sold an ox that had not been properly impounded.

In Durban North Estates v Durban Corporation 1935 NPD 558 the corporation had tried to impose rates on  land exempt from rates.

In Rent Control Board v SA Breweries 1943 AD 456 the rent board had set rental levels for property over which it did not have control.

 

In Sigugu v Minister of Lands & Anor 2013 (1) ZLR 48 (H) the court said the general rule was that there can be no power without the requisite authority, but administrative practices evolved through directives, circulars and the like, though without specific statutory authority, are permissible-even desirable- as long as they do not conflict in any way with the empowering legislation under which the public authority acts nor infringes legally protected rights and interests.

 

See also White & Collins v Minister of Health [1939] 2 KB 838.

 

 

Acts in wrong manner

 

If it is laid down that certain procedural steps must be taken before certain action is taken, then the taking of the action without having followed the prescribed procedures will mean that the action is ultra vires. Section 5(o) of the Administrative Justice Act provides in deciding whether administrative action is lawful the High Court may have regard to whether or not “the procedures specified by law have been followed.”

However, if an administrative authority fails to follow a procedure which is not mandatory or if it departs from laid down procedures in a minor or insignificant manner and this does not affect the outcome this should not result in the invalidation of the action taken.

In BMG Mining (Pvt) Ltd v Mining Commissioner, Bulawayo & Ors HB-11-05 the applicant had pegged and registered certain mining claims. The third respondent’s holding company complained to the first respondent, the Mining Commissioner for the Bulawayo District, alleging that claims already registered by the third respondent had been over-pegged by the applicant. The first respondent then purported to cancel the applicant’s claims. She claimed to be acting in accordance with s 50 of the Mines and Minerals Act [Chapter 21:05], which allows cancellation where the site pegged was reserved against prospecting and pegging. The applicant sought a declaration that it was the lawfully registered owner of the claims.

 

The court held that if the cancellation was in breach of the Act, such cancellation was void ab initio because anything done by an official in excess of the powers conferred upon him or without following the procedure for such cancellation is null and void.  Section 50(2) requires the mining commissioner, inter alia, to give at least 30 days’ notice to the affected party of the intention to cancel the registration. Even if the section applied (which was unlikely, given that the area was not reserved against prospecting and pegging under ss 31 or 35, and s 258(3) has no bearing and the pegging method has not been questioned), the first respondent had not complied with the procedure for cancellation set out in subss (2) and (3) of s 50. This therefore meant that her actions not only offended the audi alteram partem principle but also that failure to comply with the mandatory procedural requirements renders her decision ultra vires s 50.  If the first respondent had reason to believe that the registration of applicant’s claims was questionable or that there might have been a case of overpegging, her duty was to investigate the matter thoroughly and act in accordance with the provisions of the Act. Overpegging complaints should be dealt with in terms of ss 353 and 354 Act, which had not been followed. She appeared to have acted simply on the basis of the complaint made on behalf of the third respondent and did not conduct any meaningful investigation, let alone commission a survey in terms of s 353. The application would therefore be granted.

 

See Cluff Mineral Exploration Ltd v Union Carbide Management Services (Pvt) Ltd 1989 (3) ZLR 38 (S) where an administrative authority had failed to comply with peremptory provisions of a statute. See also Hooper v Superintendant, Johannesburg Gaol (1) 1958 (2) SA 152 (W); R v Agricultural Land Tribunal [1955] 2 QB 140; Musson v Rodriques [1953] AC 530.

 

The South African Promotion of Administrative Justice Act makes this clear in section 6(2)(b). This provides that there can be judicial review where “a mandatory and material procedure or condition was not complied with.”

 

Acts on wrong grounds

 

Improper purpose

 

Section 5 (d) of the Administrative Justice Act provides that in deciding whether administrative action is lawful the High Court may have regard to whether or not “a power has been exercised for a purpose other than that for which the power was conferred.”

 

As Baxter points out at p 507, every grant of powers is expressly or impliedly aimed at achieving some purpose or objective and cannot be used to achieve an entirely different or unauthorised purpose or no purpose at all. The problem is that the Legislature will seldom spell out the purposes for which the power was conferred and it thus becomes a matter of statutory interpretation to discover the permissible purposes. If a public authority acts to achieve some unauthorised purpose, its action will still be ultra vires despite the fact that it was acting in good faith to try to advance the public interest.

 

In Minister of Justice, Law & Order v Musarurwa 1964 RLR 298; 1964 (4) SA 209 (SRA) the court pointed out that it is not permissible to use statutes in combination to achieve purpose otherwise illegal.

 

In Minister of Information v Mackeson 1980 ZLR 76 (G); 1980 (1) SA 747 (R) a person declared prohibited immigrant sought to prevent his deportation to Britain claiming that it was an improper purpose for the immigration authorities to deport him to that country so that he could stand trial in that country on criminal charges. The court held that the authorities were entitled to deport the person to his country of origin, even if criminal proceedings were pending against him.

 

In van Eck v Etna Stores 1947 (2) SA 984 (A) wartime food regulations giving power to confiscate food as evidence of breaches of regulations were improperly used to take food as part of a food distribution scheme.

 

In University of Cape Town v Ministers of Education and Culture 1988 (3) SA 203 (C) the power to subsidise university to advance higher education was used to impose conditions on university to prevent boycotts, unlawful gatherings and other disruptive conduct on campuses. The court found that the conditions imposes on receiving subsidies were invalid as the purpose behind the conditions were not in accordance with the purpose of the Act which was simply to promote higher education.

 

See also Haruperi & Ors v Minister of Home Affairs HH-258-84; Ismail & Anor v Durban City Council 1973 (2) SA 362 and Municipal Council of Sydney v Campbell [1925] AC 338

 

It should be noted that section 5 of the Administrative Justice Act does not provide for the reviewing of action on the grounds of improper motive, whereas s 6(2)(e)(ii) of the South African Promotion of Administrative Justice Act provides that the court can review administrative action on the grounds that the administrative action was “taken for an ulterior purpose or motive.” Thus in South Africa even if the purpose for which the administrative authority is a permissible one in terms of the enabling legislation, the action in question can be impugned if the administrative authority is utilizing the power because of some bad motive.

 

In the case of LF Boshoff v CT Municipality 1969 (2) SA 256 (C) a municipality expropriated property for municipal purpose but the reason why it expropriated the property prematurely was a desire to acquire property at lower price, avoid certain obligations and to punish the complainant. The motive behind the expropriation was held to be irrelevant. Baxter argues that this case is wrongly decided. He maintains that the Court should intervene if power notionally within purpose but motive spite or ill-will or to take unfair advantage of power. But see contra 1994 Vol 6 No 2 Legal Forum 11 & 13.

 

Relevant and irrelevant considerations

Administrative action may be ultra vires if the administrator either takes into account irrelevant considerations or does not take into account relevant considerations when deciding to adopt a particular course of action. This is provided for in s 5(l) and (m) of the Administrative Justice Act.

 

The Legislature may have structured the discretion that an administrator is to exercise by stipulating the considerations that the decision-maker is to take into account before arriving at his or her decision. (See, for example, the considerations applicable to the registration of a bank in terms of s 8 of the Banking Act [Chapter 24:20].)

 

When relevant considerations are spelled out, it will have to be decided whether this is an exhaustive list of factors. In other words, the question will be is it permissible to take into account only these considerations and no others, or can additional matters be taken into account?

 

On the other hand, officials are sometimes given wide discretionary powers in terms of which they are entitled to take into account such factors as they see fit. Even here, however, the courts may conclude that the official took into account a consideration that was patently not germane to this type of decision. Thus, all relevant factors must be taken into account (although the weight to be attached to these factors is a matter for judgment by the administrator). Conversely, no manifestly irrelevant considerations may be taken into account. Where the administrator arrives at his or her decision on the basis of some relevant and some irrelevant considerations, the vital question will be: did the bad grounds substantially influence the decision arrived at? If they did, the decision will be set aside.

 

See Troake v Salisbury Bookmakers’ Licensing Committee 1971 (2) RLR 118; (A) 1972 (2) SA 40 (RA) where the licensing committee failed to take into account relevant statutory provisions.

See also Evans & Anor v Chairman, Review Tribunal & Anor HH-485-84; Mukarati v Director of Housing and Community Services & Anor HH-281-90; Wing Lee Ltd v Johannesburg City Council 1931 AD 45 and Vandayar v Port Elizabeth Municipality 1957 (2) SA 67 (E)

 

 

 

Failing to exercise discretion or exercising discretion wrongly

 

If the administrator fails to apply his mind at all to the decision he has to make but simply makes the decision on the basis of whim, caprice, or complete irrationality, the decision will be set aside. Section 5 of the Administrative Justice Act provides a variety of criteria that the court may have regard to in this regard. These include

  • that the action taken is so unreasonable that no reasonable person would have taken it; [s5(j)]
  • that there is any evidence or other material which provides a reasonable or rational foundation to justify the action taken; [s 5(k)]
  • that a power has been exercised in a manner which constitutes an abuse of that power. [s 5(i)].

 

If an official has to make the decision himself, he or she cannot pass the buck by leaving it to, say, a junior official to make that decision.

 

If it is his decision to make alone, it is wrong for him to allow a superior to dictate the decision that he makes. Section 5(g) of the Administrative Justice Act provides that in deciding whether administrative action is lawful the High Court may have regard to whether or not “a discretionary power has been improperly exercised at the direction, behest or request of another person.” See Leach v Secretary for Justice 1965 (3) SA 1 (ECD) and Simms Motor Units Ltd v Minister of Labour [1946] 2 All ER 201

 

It is permissible for administrative bodies to formulate certain policy guidelines to assist them in their decision-making process, providing these guidelines are consistent with the terms of the empowering legislation. These guidelines must not, however, become hard and fast rules, which the body in question applies regardless of whether the facts of the particular case demand that the guidelines be not applied in that case. Section 5(h) of the Administrative Justice Act provides that in deciding whether administrative action is lawful the High Court may have regard to whether or not “a discretionary power has been exercised in accordance with a direction as to policy without regard to the merits of the case in question.”

 

See Chotabhai v Union Government 1910-11 AD 301; Edwards & Sons Ltd v Stumbles & Anor 1963 (2) SA 140 (SR); Hayes v Director of Security Manpower GS-102-79; Maruta & Ors v Minister of Home Affairs HH-3-84 and Struben v Minister of Agriculture 1910 TPD 903

 

Mistakes of law and fact

 

Section 5(c) of the Administrative Justice Act provides that a determining factor in deciding whether the administrative authority has breached the duty to act lawfully is whether or not a material error of law or fact has occurred.

 

This makes it clear that only a material error of law or fact will suffice. Thus if the decision is still supportable despite the error of law or is still supportable on a correct version of the facts, the error will not be a material one. If on the other hand, a different decision would have been reached if the error of law or of fact had not been made then the error is material.

 

An administrative authority makes a mistake of law where it misinterprets the enabling Act in terms of which it is purporting to exercise its powers. It makes a mistake of fact for instance certain conditions have to exist in order for an application to succeed and the facts of the case in question actually satisfy all these requisite conditions but the authority misunderstands the facts and wrongly believes that the facts do not satisfy the conditions.

 

Before the Administrative Justice Act there was case law in Zimbabwe and South Africa which laid down that not all mistakes of fact and law will constitute reviewable irregularities. In the case of Kambasha Bros & Anor v Thompson NO & Anor 1970 (2) RLR 97 (G) the court ruled that mistakes of law will amount to reviewable irregularities if they lead the following consequences–

     (i)     they lead the official or body to assume jurisdiction when they do not have such jurisdiction;

     (ii)    they lead the official or body to decline jurisdiction where clearly they possess jurisdiction;

     (iii)   the mistakes badly distort the understanding of the nature of the discretion to be exercised or prevent the exercise of the discretion, e.g., by misreading the enabling legislation, the administrator completely fails to comprehend the nature of his discretion.

 

In the South African case of Hira v Booysen 1992 (4) SA 69 (A) the court decided that reviewability of the administrative matter depends on whether legislature intended the administrative authority to have exclusive authority to decide the question of law concerned. It set out the following guidelines–

  • If the question is of a purely judicial nature (i.e. falls within defined and objectively ascertainable statutory criterion) the courts will be reluctant to conclude that the administrative authority had exclusive jurisdiction to interpret that provision;
  • The materiality of error. If the decision is still supportable on the facts despite the error of law, the court will not interfere unless there is some other reviewable ground;
  • Where the administrative authority is entitled to take into account considerations of policy or desirability in public interest, the position might be different.

 

 

Fraud, corruption, nepotism, favouritism and bad faith

 

Section 5 of the Administrative Justice Act provides that in deciding whether administrative action is lawful the High Court may have regard to whether or not

  • fraud, corruption or favour or disfavour was shown to any person on irrational grounds [s 5(e)
  • bad faith has been exercised [s 5(f)].

These various grounds overlap with one another. Bad faith refers to a dishonest intention or corrupt motive on the part of the public authority. Bad faith would be present where the authority acted dishonestly, e.g. where he or she claims to be acting for one purpose but knows that he or she knows full well that he or she is acting to obtain private gain for himself or his relatives. This overlaps with the ground of corruption. Another manifestation of bad faith is where the administrative authority takes the action on the basis of animosity, spite or vengeance. This overlaps with the showing of disfavour to any person on irrational grounds.

 

See Rushwaya v Minister of Local Government and Town Planning S-6-87 and Adams Stores (Pty) Ltd v Charlestown Board 1951(2) SA 508 (N).

 

On irrationality see Austin & Anor v Minister of State (Security) & Anor 1986 (2) ZLR 28 (S); Rushwaya v Minister of Local Government and Town Planning 1987 (1) ZLR 15 (S) and Mutambara v Minister of Home Affairs 1989 (3) ZLR 96 (H).

 

 

Sub-delegation

 

Where the Legislature did not expressly or impliedly authorise sub-delegation, action taken by a sub-delegate will amount to ultra vires action.

 

Where the legislature delegates the power to take action to an administrative official or body the question arises whether that official or body is entitled to sub-delegate this power to some other administrative official or body. In order to discover the answer to this question, the legislation in question will need to be examined in order to discover the intention of the legislature. The question will be: did or did not the Legislature intend that the power be sub-delegated? Usually, the intention in this regard will not be expressly stated and here the implied intention of the Legislature will have to be discovered. 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 a power requiring special expertise to an administrative official who had that expertise. If the action requires a decision to be made that is complex and will have far-reaching consequences, it will probably be implied that no 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 the nature of the subject matter and the language of the Act show can only be properly exercised in a judicial spirit.

 

See R v Nyandoro 1959 (1) SA 639 (SR); S v Seedat 1977 (1) RLR 102; Whaley & Ors v Cone Textiles 1989 (1) ZLR 54 (S); Lenton Ranch Safaris (Pvt) Ltd v Minister of Natural Resources & Tourism S-179-89; Shidiack v Union Government 1912 AD 642; Arenstein v Durban Corporation 1952 (1) SA 279 (A) and Ellis v Dubowski [1921] 2 KB 621.

 

Action that court will take when action ultra vires

 

What will the review court do if it finds that the action taken was ultra vires? Usually, the court will set aside any action that was ultra vires because the illegal action is a nullity.

 

In Zvobgo v City of Harare & Anor 2005 (2) ZLR 164 (H) the applicants challenged the legality of actions taken by a Commission set up by the Minister to replace the Harare City Council after the Minister had dismissed the Councillors. The Urban Councils Act permitted such a Commission to operate for a maximum period of six months, after which there had to be fresh elections to elect a new city council. The Commission had continued to operate after the six-month period. Legal counsel for the Council had conceded that the operations of the Commission after six months were illegal, but he argued that the vacuum had had to be filled pending the election of a new council and therefore, on the basis of necessity, the actions taken by the Commission after the six months should be validated. Makarau J rejected this argument, saying:

 

A commission was allowed to remain in office past its legal mandate, thereby creating the fictional vacuum. It is my view that to legitimise the clearly illegal in the circumstances of this matter would be to offend against the clear letter of the law as contained in the Urban Councils Act and to usurp the functions of Parliament and seek to legislate from the bench by excusing that which Parliament has decreed illegal.

 

She pointed out that the vacuum could have easily have been filled by holding an election for a new council in accordance with the Act.

 

See also Combined Harare Residents Association & Anor v Registrar General HH-210-01;Chideya v Makwavarara 2007 (1) ZLR 115 (H).

 

However, with subordinate legislation if only a portion of it is ultra vires it may be possible to annul the bad portion only and leave intact the valid portion.

 

If the ultra vires action has caused damage, the person affected may not only want an annulment of the action but may very well also want to claim damages. On this matter, see later under the section “Remedies”.