Overview of Legality - 1

Introduction to the concept of legality.
1. Section 1(c) of the Constitution states that the Republic of

South Africa is one, sovereign, democratic state founded
amongst other values on the supremacy of the Constitution
and the rule of law. Section 1(d), commits government to
democracy and to accountability, responsiveness and
openness.
2. The Court in President of the RSA v SARFU1 (“SARFU”)

concluded that the power to appoint a commission of inquiry
in terms of section 84(2)(f) of the Constitution, was not
administrative action. The court analysed the various
subsections of section 84(2). Section 84(2)(a) to (d) dealt
specifically with decisions relating to the legislative process.
Section 84(2)(e) relates to constitutional obligations of the
President. The Court went on to hold that the other powers in
section 84(2), including the pardon power, are closely related
to policy, and that none are concerned with the
implementation of legislation. The court concluded that most
of these decisions would not suitably be subject to the right of
administrative justice in section 33 of the Constitution.
3. In Pharmaceutical Manufacturers Association of SA &

another: In re Ex parte President of the Republic of South
1
2000 1 SA 1 (CC).
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Africa 2000 (2) SA 674 (CC) (2000 (3) BCLR 241) para 84-85 the
following is stated:
‘In S v Makwanyane Ackermann J characterised the new
constitutional order in the following terms:
“We have moved from a past characterised by much which
was arbitrary and unequal in the operation of the law to a
present and a future in a constitutional State where State
action must be such that it is capable of being analysed and
justified rationally. The idea of the constitutional State
presupposes a system whose operation can be rationally
tested against or in terms of the law. Arbitrariness, by its very
nature, is dissonant with these core concepts of our new
constitutional order.”
Similarly, in Prinsloo v Van der Linde and Another this Court
held that when Parliament enacts legislation that
differentiates between groups or individuals it is required to
act in the rational manner:
It is a requirement of the rule of law that the exercise of

public power by the Executive and other functionaries should
not be arbitrary. Decisions must be rationally related to the
purpose for which the power was given, otherwise they are in
effect arbitrary and inconsistent with this requirement. It
follows that in order to pass constitutional scrutiny the
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exercise of public power by the Executive and other
functionaries must, at least, comply with this requirement. If
it does not, it falls short of the standards demanded by our
Constitution for such action.’
4. In Affordable Medicines Trust v Minister of Health 2006 (3) SA

247 (CC) the Constitutional Court, referring to Fedsure Life
Assurance Ltd v Greater Johannesburg Transitional
Metropolitan Council 1999 (1) SA 374 (CC) (1998 (12) BCLR
1458) para 58, stated the following (para 49):
‘The exercise of public power must therefore comply
with the Constitution, which is the supreme law, and the
doctrine of legality, which is part of that law. The
doctrine of legality, which is an incident of the rule of
law, is one of the constitutional controls through which
the exercise of public power is regulated by the
Constitution. It entails that both the Legislature and the
Executive “are constrained by the principle that they
may exercise no power and perform no function beyond
that conferred upon them by law”. In this sense the
Constitution entrenches the principle of legality and
provides the foundation for the control of public power
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5. In Masetlha v President of the RSA, para 81, in dealing with
the power of the President to dismiss the head of the National
Intelligence Agency and implicitly with the power to appoint,
the Constitutional Court said:
‘It is therefore clear that the exercise of the power to

dismiss by the President is constrained by the principle
of legality, which is implicit in our constitutional
ordering. Firstly, the President must act within the law
and in a manner consistent with the Constitution. He or
she therefore must not misconstrue the power
conferred. Secondly, the decision must be rationally
related to the purpose for which the power was
conferred. If not, the exercise of the power would, in
effect, be arbitrary and at odds with the rule of law.’
6. Pharmaceutical Manufacturers – The CC held that it was a

requirement of the rule of law that the exercise of public
power by the executive must be rational and this required
that the decisions must be rationally related to the purpose
for which the power is granted.
7. Masetlha v President - Importantly, the majority held that the

duty to act procedurally fairly was not a requirement with
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which the exercise of executive power had to comply. The
rationale was that the President, in the exercise of this
executive authority, should not be constrained beyond the
principle of legality and rationality, as it would impose
unjustifiable constraints on the exercise of executive power.
As the relationship of trust had broken down between the
President and the applicant – one of his key security advisors
– it was, in the opinion of the court, not irrational for him to
terminate the latter’s employment
8. In Masetlha, Ngcobo J2 in a dissent – consistent with his
commitment to participatory democracy3 and to procedural
fairness generally – required the President to consult with Mr
Masetlha on the central issue regarding the amendment of his
contract. According to Ngcobo J, when exercising public
power, the executive and functionaries have a duty to act
fairly. He traces the source of the duty to the rule of law and
the requirement not to act arbitrarily. According to Ngcobo J,
the inherent flexibility of procedural fairness will allow it to
adapt to the specific circumstances, and balance the demands
of the executive for expeditious action, and the right of Mr
Masetlha to be treated fairly. According to Ngcobo J, the
principle of rationality has both substantive and procedural
2
Masetlha v President of the RSA 2008 1 BCLR 1 (CC) para 105.
3
Doctors for Life International v Speaker of the National Assembly 2006 12 BCLR 1399
(CC).
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components. The decision must be rationally related to the
stated objectives, and the decision must be made in a
procedurally fair fashion.4 Ngcobo J points out that it would
be incongruent with the basic premises of our Constitution, to
permit the procedurally unfair exercise of public power to be
unreviewable
9. In Minister of Justice and Constitutional Development v
Chonco (“Chonco”), the court held that the exercise of
executive power must be rational, be made in good faith, and
accord with the principle of legality. The Court held that the
power to pardon is the exercise of a public power, and one
which vests in the President. The court found that it was
unacceptable that it had taken longer than six months to
finalise the pardon applications.
4
. Para 179-180
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Introduction to the concept of legality.

1. Section 1(c) of the Constitution states that the Republic of

2. The Court in President of the RSA v SARFU1 (“SARFU”)

3. In Pharmaceutical Manufacturers Association of SA &

It is a requirement of the rule of law that the exercise of

4. In Affordable Medicines Trust v Minister of Health 2006 (3) SA

‘It is therefore clear that the exercise of the power to

6. Pharmaceutical Manufacturers – The CC held that it was a

7. Masetlha v President - Importantly, the majority held that the

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