DELEGATION OF LEGISLATIVE POWER

Statutory delegation to the executive

of broad law-making powers:

Whether courts approve

Introduction

This document investigates the superior courts’ jurisprudence on the separation of powers,

with particular reference to a stated imperative of the Rule of Law that the sole legitimate authority for making substantive law rests with the legislature and should not be delegated to any other entity.

The question addressed is whether the courts approve the delegation of wide law-making powers to the executive.

Summary

Separation of powers

(Separation of powers is addressed, because it has a bearing on the legislature’s control over delegated legislation made by the executive.)

The Constitution does not expressly mention a separation of legislative and executive powers. Nor does it state that the sole authority for making substantive law is the legislature, or that statutes shall not delegate the making of substantive law to the executive.

The 1993 constitutional principles stipulated that there should in the new constitution be a separation of powers between the legislature and executive (and of course judiciary).

The Constitutional Court had to certify whether the final text of the new constitution complied with the Principles.

A complaint was made that the final text of the new constitution did not provide for separation of powers, because members of the executive would be members of legislatures at all levels of government. The complaint was that Cabinet members by reason of continuing to be members of the legislature would be able to exercise powerful influence over its decisions, inconsistent with separate powers.

However, the Court ruled that there was no universal model of separation of powers. No scheme could reflect a complete separation of powers. Separation was always partial.

As the separation of powers doctrine was not fixed or rigid, the Court certified that the final text of the new constitution did indeed provide for separate legislative and executive powers, despite a failure to separate the functionaries of executive and legislature.

Indeed, the overlap provided an important check and balance on the executive, by making it more directly answerable to the elected legislature, said the Court.

The Heath case confirmed that the South African system of separation of powers was closer to the Australian parliamentary system of responsible government, where the separation between legislature and executive was not as strict as in the United States.

An Australian commentator, while confirming that the legislature must be able to delegate legislative power to the executive for reasons of practicality and convenience, observes that the values served by the Separation of Powers suggest that there must be limits on the extent to which legislative power can be transferred to the executive. This is an area where the Separation of Powers doctrine serves the ends of the Rule of Law: If persons or bodies who are not elected representatives are given power to legislate on contentious policy matters, this will jeopardise the legitimacy of law and the Rule of Law.

Delegation of legislative power to executive

The leading case is the Constitutional Court decision in Executive Council of the Western Cape Legislature v President of the Republic, which is to the effect that in a modern state detailed provisions were often required for the purpose of implementing and regulating laws, and Parliament could not be expected to deal with all such matters itself. Nothing in the Constitution prohibits Parliament from delegating subordinate regulatory authority to others. The power to do so was necessary for effective law-making. It was implicit in the power to make laws for the country, and under our Constitution parliament can pass legislation delegating such legislative functions to others.

At the same time, if Parliament is not to fail to discharge the functions entrusted to it by the Constitution, there must be some limit on the matters which it can delegate. No single formulation or criterion can be used for deciding when delegation is permissible and when not. Rather, a complex balancing of various relevant factors has to be done.

What would have to be considered, in relation to each Act of Parliament purporting to delegate law-making authority, is whether it involved a shuffling-off of responsibilities which in the nature of the particular case and its special circumstances, and bearing in mind the function of Parliament, should not be entrusted to any other agency.

This will include an evaluation of factors such as the extent to which the delegatee’s discretion is structured and guided by the enabling Act, the importance and significance of the measure (the more it touches on questions of broad public importance and controversy, the greater will be the need for scrutiny), the degree to which Parliament continues to exercise its control as a public forum in which issues can be properly debated and decisions democratically made; and the extent to which the subject matter necessitates the use of forms of rapid intervention which the slow procedures of Parliament would inhibit. Also relevant is the identity of the delegatee.

The Court observed that, even in the United States, where Congress is the body in which federal law-making power has been vested, delegation of legislative power is permissible. American courts appreciate that a legislature cannot effectively make the vast network of laws necessary to regulate life in a complex modern civilization, and so have consistently upheld the constitutionality of delegations to the Executive or Administration, provided that what is delegated is power to give effect to principles and policies in a Congressional statute, and that the delegation is not so broad that the authority to whom power is delegated makes law rather than acts in a statutory framework.

The Court noted that courts of Commonwealth countries that follow the English Parliamentary system take a broader view of the power to delegate legislative authority than courts of the United States: In those countries there is no clear separation between legislature and executive, and the Prime Minister as head of the executive and members of her cabinet sit in Parliament, are answerable to it for their actions, and requires its support to govern.

The Australian courts decline to follow the United States cases, holding that in Australia there is the British system of an Executive which is responsible to Parliament, and this close relationship between legislature and executive agencies must be kept in mind in examining any contention that the Legislature alone may lawfully exercise legislative power.

In Canada, the close link between the executive and legislature entailed by the British system is inconsistent with any separation of executive and legislative powers, and delegation of legislative power short of complete abdication by parliament to the executive is permitted.

(Executive Council Western Cape Legislature v President was decided under the 1993 Constitution but has been cited and relied on in cases under the 1996 Constitution.)

In Constitutionality of Mpumalanga Petitions Bill, the Constitutional Court observed that regulations are a category of subordinate legislation framed and implemented by a functionary or body other than the legislature. Such functionaries are usually members of the executive branch of government, but not invariably so.

Although the delegation by the Civil Aviation Act of power to the Minister of Transport and director of civil aviation to make regulations and technical standards might not have been assessed by the courts, this legislation is referred to, as an example of a statute which sets out in some detail the matters regarding which the Minister may make regulations, and as an example, extreme perhaps, where delegated legislation runs to thousands of pages.

Separation of powers

Constitution

The Constitution[1] does not expressly refer to a separation of legislative and executive powers.

Its founding provision[2] states that the Republic is a[3] democratic state founded on stated values.[4] These do not include a formal separation of legislative and executive powers.

Legislative authority

The Constitution does not in so many words state that the sole legitimate authority for making substantive law rests with the legislature.

The Constitution states[5] that the legislative authority of the national sphere of government is vested in Parliament.[6]

The national legislative authority as vested in Parliament confers on the National Assembly the power inter alia to pass legislation with regard to any matter.[7]

The national legislative authority vested in Parliament confers on the National Council of Provinces the power to pass legislation with regard to any matter within a functional area of concurrent national and provincial legislative competence, or with regard to other stated matters.[8]

Executive authority

Nor does the Constitution expressly provide that statutes shall not delegate the making of substantive law to a person or body in the executive.

The Constitution states[9] only that the executive authority of the Republic is vested in the President.[10] It states that the President exercises the executive authority, together with the other members of the Cabinet, by:[11]

“implementing” national legislation except where the Constitution or an Act of Parliament provides otherwise,[12] and

“performing any other executive function” provided for in the Constitution or in national legislation.[13]

Tlouamma v Mbethe, Speaker of National Assembly 2015 (WCC)

The Constitution does not explicitly mention the principle of separation of powers, “but the constitutional design clearly embraces and entrenches it.”[14]

First Certification case 1996 (CC)

The Interim Constitution of 1993[15] stated that the National Assembly and Senate sitting jointly would be the Constitutional Assembly.[16] The Constitutional Assembly had to draft and adopt a new constitutional text,[17] by a majority of at least 60 per cent of all the members of the Constitutional Assembly.[18]

A new constitutional text adopted in accordance with these provisions would be assented to by the President, and would on its promulgation be the Constitution.[19]

A new constitutional text had to comply with the Constitutional Principles contained in a schedule[20] to the Interim Constitution,[21] and be passed by the Constitutional Assembly.[22]

Constitutional Principle VI stipulated that there would be a separation of powers between the legislature, executive and judiciary.[23]

The new constitutional text passed by the Constitutional Assembly[24] would not be of force and effect unless the Constitutional Court had certified that all the provisions of such text complied with the Constitutional Principles.[25] Its decision would be final and binding.[26]

The Constitutional Assembly started deliberations[27] and adopted the new text.[28]  The Assembly’s chairman[29] certified[30] that the text complied with the Constitutional Principles and had been adopted by the requisite majority, transmitted the text to the Constitutional Court and requested the Court to certify it.[31]

Objections, written representations and oral argument were submitted to the Court by five political parties. Objections were lodged by 84 private parties. The political parties, the Constitutional Assembly and 27 other parties were given a right of audience.[32]

The Court observed that the Constitutional Principles should not be interpreted with technical rigidity: While the new text could not transgress them, the issue as to which of several permissible models within the space created by the Constitutional Principles should have been adopted was not an issue for adjudication by the Court.[33]

The Court noted that an objection had been taken to the new text’s provisions which were said to violate Constitutional Principle VI’s stipulation that there should be a separation of powers between the legislature and executive. The principal objection was directed at the provisions of the new text which provided for members of the executive government also to be members of legislatures at all three levels of government. The complaint was that members of the Cabinet continued to be members of the legislature and were thereby able to exercise a powerful influence over its decisions, inconsistent with the separation of powers.

The Court declared that there was, however, no universal model of separation of powers. In the United States and France members of the executive could not continue to be members of the legislature, but this was not required in the German separation of powers. No constitutional scheme could reflect a complete separation of powers: the scheme was always one of partial separation.

As the separation of powers doctrine was not fixed or rigid, it could not be said that failure to separate completely the functionaries of executive and legislature was destructive of the doctrine. Indeed, the overlap provided an important check and balance on executive power, by making the executive more directly answerable to the elected legislature.

The Court held that there was nothing to suggest that Constitutional Principle VI imposed upon the Constitutional Assembly an obligation to adopt a strict separation such as that found in the United States or France. Constitutional Principle VI was wide to cover the type of separation required by the new text, and the objection that the Principle had not been complied with had to be rejected.[34]

(The Court held however that the new text could not be certified, because[35] the Constitutional Principles had not been complied with in other respects.[36] An amended text was then passed by the Constitutional Assembly, and the Court subsequently certified the amended text as complying with the Constitutional Principles.[37])

South African Assoc of Personal Injury Lawyers v Heath 2001 (CC)

In the United States the President is head of government and head of state. The President is popularly elected,[38] and neither the President nor the cabinet are members of Congress. The President is, however, vested with the power to veto legislation passed by Congress.

In South Africa the President is head of government and head of state. The President is elected by parliament from amongst its members but ceases to be a member of parliament after having been elected. Cabinet Ministers are appointed by the President from amongst members of parliament, remain members of parliament after their appointment, and are directly answerable to it. There is accordingly not the same separation between the legislature and the executive as there is in the United States.

In this respect, the South African system of separation of powers is closer to the Australian system. There, the head of state is the Queen, represented in Australia by the Governor General. The Commonwealth government is headed by the Prime Minister, and the Prime Minister and cabinet are members of parliament. Under this system of responsible government the separation between the legislature and the executive is not as strict as it is in the United States.[39]

Separation of powers and Rule of Law

An Australian academic declares it to be obvious that the legislature must be able to delegate legislative power to the executive for reasons of practicality and convenience.

No doubt there is no total separation of legislature and executive in a parliamentary system of government, but the values served by the separation of powers suggest that there must be limits on the extent to which legislative power can be transferred to the executive.

The conferral of unfettered power on the executive to make law creates the danger of the concentration of power in one branch of government, a danger which it is a primary purpose of the separation of powers doctrine to guard against.

This is an area in which the doctrine of the Separation of Powers serves the ends of the Rule of Law, because the separation of powers speaks likewise against the unrestricted delegation of legislative power.

If persons who are not elected representatives are given the power to legislate on contentious policy matters, the legitimacy and authority of law are jeopardised.[40]

Delegation of legislative power to executive

Executive Council of Western Cape Legislature v President [1995] (CC)

The Local Government Transition Act, 1993[41] authorised the President to amend the Act itself, by proclamation,[42] which proclamation could provide that it would commence on a date prior to the date of its publication.[43]

No such proclamation could be made unless it had been approved by the select committees of the National Assembly and Senate responsible for constitutional affairs. The Minister had to submit a copy of any such proclamation to Parliament within 14 days after its publication. If Parliament by resolution disapproved of any such proclamation or a provision thereof, the proclamation or provision would cease to be of force and effect, without prejudice to the validity of anything done or to any right or liability acquired or incurred in terms thereof before it ceased to be of force and effect.[44]

The Constitutional Court observed that the legislative authority vested in Parliament was expressed in wide terms, to make laws in accordance with the Constitution.

There was, however, a difference between delegating authority to make subordinate legislation within the framework of a statute under which the delegation is made, and assigning plenary legislative power to another body, including (as the provision in question did[45]) the power to amend the Act under which the assignment is made.

In a modern state, detailed provisions were often required for the purpose of implementing and regulating laws, and Parliament could not be expected to deal with all such matters itself. Nothing in the Constitution prohibits Parliament from delegating subordinate regulatory authority to others. The power to do so was necessary for effective law-making. It was implicit in the power to make laws for the country, and under our Constitution parliament can pass legislation delegating such legislative functions to others.[46]

At the same time, if Parliament is not to fail to discharge the functions entrusted to it by the Constitution, there must be some limit on the matters which it can delegate.

It would not be helpful to attempt to find a single formulation or criterion for deciding when delegation is permissible and when not. Rather, a complex balancing of various relevant factors has to be done, against a background of what Parliament is there for in the first case. There would seem to be a continuum between forms of delegation that are clearly impermissible at the one extreme, and those that are manifestly permissible at the other. Parliament can, within the framework of clearly established criteria, delegate to other authorities or persons law-making power to regulate the implementation of its laws. There is however a large amount of delegation in between these two extremes that might or might not be permissible.

No hard and fast rule or simple formula can be used to find a point on the continuum that automatically distinguishes between the two classes of case. What would have to be considered, in relation to each Act of Parliament purporting to delegate law-making authority, is whether or not it involved a shuffling-off of responsibilities which in the nature of the particular case and its special circumstances, and bearing in mind the specific role, responsibility and function that Parliament has, should not be entrusted to any other agency.

This will include an evaluation of factors such as[47] the extent to which the delegatee’s discretion is structured and guided by the enabling Act, the importance and significance of the measure (the more it touches on questions of broad public importance and controversy, the greater will be the need for scrutiny), the degree to which Parliament continues to exercise its control as a public forum in which issues can be properly debated and decisions democratically made; and the extent to which the subject matter necessitates the use of forms of rapid intervention which the slow procedures of Parliament would inhibit.[48]

Conceptually, it is possible to adopt different approaches to the application of the Constitution’s provision which vests legislative authority in Parliament: The first approach is to say that, because legislative authority vests in Parliament, it, and it alone, must make the laws of the country it therefore cannot delegate that function to another authority, however eminent. The second approach would contend that, precisely because Parliament is the ultimate legislative authority with the power to make laws, it must have the power, in appropriate circumstances, to authorize other organs to exercise law-making powers if it considers such delegation to be necessary for the proper discharge of its own functions.

The competence of a democratic Parliament to delegate its law-making function cannot be determined in the abstract. It depends inter alia on the nature and ambit of the purported delegation, the subject-matter to which it relates, the degree of delegation, the control and supervision retained or exercisable by the delegator over the delegatee, the circumstances prevailing at the time when the delegation is made and when it is expected to be exercised, the identity of the delegatee, and practical necessities generally.[49]

(In the past our courts gave effect to Acts of parliament which vested wide plenary power in the executive. They were in conformity with English law under which it was accepted that parliament could delegate power to the executive to amend or repeal acts of parliament. Those decisions were, however, given at a time when the Constitution was not entrenched and the doctrine of parliamentary sovereignty prevailed.

(In the United States of America, delegation of legislative power to the executive is dealt under the doctrine of separation of powers. Congress as the body in which all federal law-making power has been vested must take legislative decisions in accordance with the procedure laid down by the US Constitution. Yet delegation of legislative power within prescribed limits was permissible because, as the United States Supreme Court has said,[50]

Without capacity to give authorizations of that sort we should have the anomaly of legislative power which in many circumstances calling for its exertion would be but a futility.

(The delegation must not be so broad or vague that the authority to whom the power is delegated makes law rather than acting within the framework of law made by Congress.[51]

(The federal courts have appreciated that a national legislature cannot effectively make the vast network of laws necessary to regulate life and living in a complex modern civilization and for that reason have consistently upheld the constitutionality of delegations to the Executive or the Administration, subject to the proviso that what is delegated is the power to give effect to the principles and policies which are contained in the statute itself.

(The courts of some Commonwealth countries seem to take a broader view of the power to delegate legislative authority than the courts of the United States, and to permit parliament to delegate plenary law-making powers to the executive, including the power to amend Acts of parliament. In part this is due to the influence of English law and decisions of the Privy Council, and in part to the form of government in such countries. In the United States there is a clear separation of powers between the legislature and the executive. In Commonwealth countries there is usually a clear separation as far as the judiciary is concerned, but not always as clear a separation between the legislature and the executive. Many of the Commonwealth countries have followed the English system of executive government under which the head of the government is the Prime Minister, who sits in parliament and requires its support to govern. Although there is a separation of functions, the Prime Minister and the members of his or her cabinet sit in parliament and are answerable to parliament for their actions.

(The Australian High Court[52] has declined to follow the United States cases. The Court drew attention to the differences in the form of government of Commonwealth countries and that of the United States, saying:

In dealing with the doctrine of “separation” of legislative and executive powers, it must be remembered that, underlying the [Australian federal] frame of government, there is the notion of the British system of an Executive which is responsible to Parliament. That system is not in operation under the United States Constitution. …

This close relationship between the legislative and executive agencies of the [Australian federation] must be kept in mind in examining the contention that it is the Legislature of the [Australian federation], and it alone, which may lawfully exercise legislative power.

(In Canada it seems accepted that parliament has wide powers of delegation, due to Canada’s retention of the British system of responsible government. The close link between the executive and the legislative branches entailed by the British system is utterly inconsistent with any separation of executive and legislative functions. Delegation of legislative power, short of complete abdication, by parliament to the executive is permissible in Canada.)

The South African Constitutional Court noted that the offending provision of the Local Government Transition Act (authorising the President to amend the Act by proclamation[53]) was authorised by Parliament, and proclamations under that provision were issued in consultation with and had the approval of the relevant committees of both houses of Parliament. The proclamations were tabled in Parliament and could have been invalidated by resolution, but no such resolution had been passed.

Nevertheless, what was done was inconsistent with the Constitution. Constitutional cases cannot be decided on the basis that Parliament or the President acted in good faith or on the basis that there was no objection to action taken at the time that it was carried out.

The Court was unanimous[54] that, by virtue of its inconsistency with the Constitution, the provision was invalid, and accordingly proclamations made under it were also invalid.[55]

The case was decided under the Interim Constitution, but has been cited as authority, and its principles have been relied on, in cases decided under the 1996 Constitution.[56] (See, for example the immediately following case.[57])

Constitutionality of Mpumalanga Petitions Bill [2001] (CC)

The Mpumalanga Petitions Bill, 2000 contained a clause stating that “the Speaker” must make regulations required for carrying out the provisions of the Act.[58]

The Premier referred the Bill to the Constitutional Court for a decision on the constitutionality of that clause.[59]

The Premier contended that in terms of the Constitution and by virtue of the doctrine of separation of powers, the power to make regulations was a power that could only be vested in the Premier or other member of the executive.

The Court found that there was no merit in that argument:  The Constitution does not provide that only members of the executive should make regulations.  Neither the provision of the Constitution which deals with provincial legislative authority[60] nor the provision which provides for the provincial executive authority[61] regulates the framing of regulations, nor does the latter require that legislative power be delegated to the executive only.

The Premier’s complaint was also directed at the delegation of the legislature’s legislative or rule-making authority to the Speaker.

The Court observed that regulations are a category of subordinate legislation framed and implemented by a functionary or body other than the legislature for the purpose of implementing a valid statute. Such functionaries are usually members of the executive branch of government, but not invariably so.

A legislature has the power to delegate the power to make regulations to functionaries when such regulations are necessary to supplement the primary legislation. Ordinarily the functionary will be the President or the Premier or the member of the executive responsible for the implementation of the law.

The factors relevant to a consideration of whether the delegation of a law-making power is appropriate are many. They include the nature and ambit of the delegation, the identity of the person or institution to whom the power is delegated, and the subject matter of the delegated power.

The Court noted that the Bill concerned petitions to the legislature. It was being enacted to give substance to the legislature’s responsibility for oversight of the executive and to facilitate public involvement in the legislative and other processes of the legislature.

The Bill, if and when it becomes a provincial Act, would be implemented by the provincial legislature, including the Speaker, and not by the provincial executive. It would be inappropriate for the executive to regulate the former function, but wholly appropriate for the legislature to regulate both functions itself through its Speaker who by virtue of his or her office should have the necessary expertise and is fully accountable to the legislature.

The Court ruled that there was no merit to the objection against this power being delegated to the Speaker.[62]

Endnote: Civil Aviation Act, 2009 and its prescribed regulations and standards

The Civil Aviation Act, 2009[63] states that it is a statute to provide for the control and regulation of aviation in the Republic, and for[64] the establishment of a Civil Aviation Authority with safety and security oversight functions.[65]

The Act states[66] that it applies to every aircraft, aerodrome, air navigation facility, aviation facility, designated airport, operators, passengers or any person boarding an aircraft or entering an aerodrome, air navigation facility, aviation facility or designated airport and registered owners of aircraft in the Republic.[67]

The Act[68]covers only about[69] 60 to 70 pages.[70]

The Act’s enabling provision relating to the making of regulations[71] states that the Minister may make regulations regarding the carrying out of or the giving effect to the Act.[72]

This enabling provision also sets out in some detail matters regarding which the Minister may make regulations[73] (see Annexure).

(These include a paragraph that the Minister may make regulations regarding generally any matter which the Minister may consider necessary or expedient to prescribe in order that the objects of this Act[74] may be achieved, the generality of this paragraph not being limited by the preceding paragraphs.[75])

The Minister made the Civil Aviation Regulations, 2011[76] as  amended.[77] The Regulations contain 59 separate and extensive Parts,[78] and in all cover some 1,200 pages.[79]

(The Regulations have not[80] been investigated in order to determine if they prescribe matters beyond those required to bring the Act into operation, or indeed if they go beyond matters regarding which the enabling provision envisages regulations may be made.)

The Civil Aviation Act also states that the Director of Civil Aviation may issue technical standards for civil aviation on such matters as may be prescribed by regulation.[81]

But the Regulations do not formally prescribe matters on which technical standards may be issued.

Instead, the Regulations take the approach of stating that the requirements for a particular matter dealt with in the Regulations are contained in a specific Technical Standard:

For example, the Regulations state that a standard certificate of airworthiness may be issued to aircraft in the specific airworthiness design standard “as prescribed in technical standard 21.02.3” for the category of aircraft concerned.[82]

This is equivalent to stating that the Director may issue technical standards on airworthiness design for each aircraft category defined in the Regulations.

The Director has issued technical standards for each[83] Part of the Regulations.

It appears that the Director issues a specific technical standard at about the same time that the Minister makes a Regulation which governs a matter that the Regulation states is dealt with in that specific technical standard.

The Technical Standards together cover approximately 3,000 pages.

(The Technical Standards have not been assessed to determine if they go beyond the matters regarding which the Regulations envisage that technical standards should be issued.)

ATTACHMENT

Civil Aviation Act 13 of 2009:

Section 155 (Regulations)

Regulations

155. (1) The Minister may make regulations regarding—

(a) the carrying out of, or the giving effect to this Act, the Convention and Transit Agreement;

(b) the powers or the duties of the Director, including the issue, the amendment or the withdrawal of technical standards for civil aviation, and the determination of the matters in respect of which such standards may be issued;

(c) the qualifications, the powers or the duties of authorised officers, inspectors and authorised persons;

(d) the designation of medical examiners for the purposes of this Act, including—

(i) the manner in which, and the person by whom, such designation may take place;

(ii) the suspension or the withdrawal of such designation;

(iii) the conditions, the requirements or the qualifications for such designation; and

(iv) the certificates issued by the said examiners and the conditions or the requirements for such issue;

(e) the designation of one or more bodies or institutions for the purposes of this Act—

(i) to exercise control over medical examinations and tests and to exercise control over the persons performing such examinations or tests;

(ii) to determine standards for such examinations and tests and to determine standards for the training of such persons;

(iii) to issue, amend, suspend or withdraw medical certificates and to keep all books or documents regarding such examinations or tests;

(iv) to advise the Director on any matter connected with such examinations, tests or persons and on the training of the persons specified in the regulations and any other medical matters as the Director may require; and

(v) in the absence of such designation such duties to be the responsibility of the Director or any authorised officer designated as such by the Director;

(f) the designation of one or more bodies or institutions for the purposes of this Act—

(i) to exercise control over the training courses specified in the regulations, over the tests or the verifications of skill or proficiency specified in the regulations, and over the persons conducting such courses, tests or verifications;

(ii) to determine standards for such courses, tests or verifications and for the training of such persons;

(iii) to issue or confirm certificates for the successful completion of such courses, tests or verifications, to suspend or to withdraw such certificates, and to keep all books or documents regarding such courses, tests or verifications; and

(iv) to advise the Director on any matter connected with such courses, tests, verifications or persons;

(g) the designation of one or more bodies or institutions for the purposes of this Act—

(i) to exercise control over the aviation recreational activities specified in the regulations;

(ii) to determine standards for the airworthiness or the operation of aircraft engaged in aviation recreational activities; and

(iii) to advise the Director on any matter connected with the airworthiness or the operation of aircraft engaged in aviation recreational activities and on the licensing of persons involved in aviation recreational activities;

(h) the designation of one or more bodies or institutions for the purposes of this Act—

(i) to promote aviation safety or to reduce the risk of aircraft accidents or aircraft incidents; and

(ii) to advise the Director on any matter connected with the promotion of aviation safety or the reduction of the risk of aircraft accidents or aircraft incidents;

(i)    the reporting or the investigation of aircraft accidents or incidents, including—

(i) the persons by whom or to whom such accidents or incidents must be reported;

(ii) the procedure to be followed in reporting such accidents or incidents or in investigating such accidents or incidents;

(iii) the imposition of a prohibition, pending investigation, of access to or interference with any aircraft involved in an accident or an incident and the granting of authorisation to one or more persons, in so far as it may be necessary for the purposes of the investigation, to have access to such aircraft, to examine or to remove such aircraft, to take steps for its preservation or to deal with it otherwise; and

(iv) the investigation of any other accident or incident reported in respect of the provision of any air traffic service;

(j) the exercising of control over the conveyance in aircraft of dangerous goods specified or defined in the regulations, including—

(i) the imposition of a prohibition of the conveyance of such goods; and

(ii) the issue of licences or certificates to persons specified in the regulations and engaged in the consigning or acceptance of such goods;

(k) the requirements to be complied with or the steps to be taken in connection with the conveyance in aircraft of any animal as defined in section 1 of the Animals Protection Act, 1962 (Act No. 71 of 1962), or any fish as defined in section 1 of the Marine Living Resources Act 1998 (Act No. 18 of 1998);

(l) the delimitation, the designation or the restriction of airspace, including—

(i) the designation of airspace for the purposes specified in the regulations;

(ii) the restriction or the prohibition of aircraft from flying within any airspace specified in the regulations;

(iii) the conditions under which, the airspace within which or the aerodromes at which aircraft coming from any place outside the Republic lands and the conditions under which, the airspace within which or the aerodromes from which aircraft departs to any place outside the Republic; and

(iv) the provision of measures to prevent aircraft from flying within any airspace in contravention of any such restriction or prohibition or from entering or leaving the Republic in contravention of this Act;

(m)  the provision of general operating rules, flight rules and air traffic rules in respect of civil aviation, including—

(i) the terminology, including definitions, abbreviations and units of measurement to be used in air and ground operations;

(ii) the identification, the classification or the registration of aircraft;

(iii) the identification, the licensing or the certification of persons engaged in any civil aviation activity;

(iv) the prevention of nuisances arising from air navigation, aircraft factories, aerodromes or other aircraft establishments, including the prevention of nuisance due to noise or vibration originating from the operation of machinery in aircraft on or above aerodromes, whether by the installation in aircraft or on aerodromes of means for the prevention of such noise or vibration or otherwise;

(v) the approval or, where appropriate, the design of let-down and missed approach procedures;

(vi) the safety or the security of persons and property, including the conditions under which any aircraft must be operated, the conditions under which any act may be performed in or from an aircraft and the maximum hours of duty of flight crew, cabin crew or air traffic service personnel for the purposes of aviation safety;

(vii) the signals or other communications which may or must be conveyed by or to any aircraft, or any person therein, and the acknowledgement of, or the compliance with, such signals or communications;

(viii) the coordination of frequency allocations in bands of the radio spectrum allocated for civil aviation use;

(ix) the determination of standards for the maintenance of any air navigation infrastructure;

(x) the flight inspection of any such air navigation infrastructure;

(xi) the classification of airports as schedules facilitated or coordinated airports, including the determination, implementation, monitoring and enforcement of slot coordination rules at coordinated airports;

(xii) the determination of any special slot coordination rules or requirements necessary during special events or in preparation for such special events hosted in the Republic; and

(xiii) the appointment of slot coordinator and slot coordination committee and requirements for such appointment;

(n) the use, the registration, the licensing, the inspection or the management of aerodromes, including—

(i) the prevention of interference with aerodromes and other civil aviation related facilities;

(ii) the imposition of a prohibition or the regulation of the use of unlicensed aerodromes;

(iii) the approval for the citing of any air navigation infrastructure which is not situated on an aerodrome;

(iv) the certification of categories of operations at aerodromes;

(v) the access to aerodromes or other places where aircraft have landed or the access to civil aircraft factories for the purposes of the inspection of the work carried on therein;

(vi) the imposition of a prohibition or the regulation of the erection or the coming into existence of any obstruction exceeding the height specified in the regulations within the distance so specified from any aerodrome;

(vii) the lighting and marking of obstructions which are situated at any aerodrome or within the distance specified in the regulations from any aerodrome, or which exceed the height so specified, or which, according to criteria so specified, constitute a danger to aircraft;

(viii) the imposition of a prohibition of, or the exercising of control over, lights at or in the neighbourhood of any aerodrome;

(ix) the registers, documents or the records to be kept at licensed aerodromes and the manner in which they must be kept;

(x) the technical, operational, security, safety and environmental management and protection standards in respect of a company airport as defined in section 1 of the Airports Company Act, 1993 (Act No. 44 of 1993), and designated airports; and

(xi) the identification, licensing and certification and the approval of persons engaged in any activity on an aerodrome of management or operational nature that has an impact on the safety of such activity, be it of a specific or a general nature.

(o) the provision or the organisation of air traffic or navigation services, aviation meteorological, security or communication services and any other civil aviation related services, including the licensing or the certification of aircraft design, manufacturing or maintenance organisations or aviation training organisations and the designation of aviation meteorological organisations;

(p) the determination of standards or specifications in respect of civil aircraft or aircraft components, persons engaged in any civil aviation activity and civil aviation related services, facilities or equipment, including—

(i) for the purposes of ensuring the safe operation of aircraft, the imposition of a prohibition or the regulation of the use in aircraft or aircraft engines or parts, instruments, accessories or other materials which do not conform to the specifications or standards of quality or manufacture specified in the regulations;

(ii) the requirements relating to the airworthiness, the design, the performance, the operation or the maintenance of aircraft, aircraft components or aircraft equipment and the specifications for materials used, or the standards or the processes which must be applied, in the construction of aircraft, aircraft components or aircraft equipment; and

(iii) the determination of standards for the training, the grading, the licensing or the certification of persons engaged in any such activity;

(q) the manner in which, or the conditions under which, any licence or certificate required by or under this Act, the Convention or Transit Agreement must be issued, renewed or confirmed, including—

(i) the courses, the examinations, the inspections, the tests or the verifications which must be passed or measured up to; and

(ii) the form, the custody, the production, the cancellation, the suspension, the endorsement or the surrender of any such licence or certificate;

(r)    the publication of aeronautical information;

(s)    the manuals, the registers, the records or the other documents to be kept for the purposes of this Act, the Convention or Transit Agreement and the manner in which they must be kept;

(t)    subject to subsection (2), the fees to be paid in respect of the matters specified in the regulations;

(u)   the exemption from any of the provisions of this Act, the Convention or Transit Agreement of any aircraft operated for experimental purposes, of any other aircraft or of any person in the circumstances or under the conditions specified in the regulations;

(v)   national aviation disaster plans and next-of-kin plans in the event of an aircraft accident;

(w)   the conditions of insurance in respect of third party liability, that aircraft owners shall insure for in relation to the category of aircraft;

(x)   the regulation, requirements, standards, time tables and procedures with regard to the managed approach to the phasing out of aircraft based on aviation safety and environmental considerations, as guided by the applicable International Conventions and Resolutions of the General Assembly of the International Civil Aviation Organization;

(y)   the calculation of aircraft noise contours and the monitoring of aircraft noise;

(z)    any fees that may be charged by the Civil Aviation Authority for the providing of services to—

(i) participants in civil aviation; and

(ii) aircraft passengers;

(aa) the establishment, constitution and functions of a committee to advise the Minister and interested persons with regard to the security of civil aviation and the effective application of the provisions of this Act;

(bb) the drawing-up of plans with regard to measures which must be adopted in order to promote or ensure the security of civil aviation and the effective application of this Act (hereinafter in this subsection referred to as “security plans”), the approval of security plans and the secrecy thereof;

(cc)  the designation of officers in the service of the State or persons in the service of the Civil Aviation Authority to apply the provisions of this Act or any security plan, and the other functions of such officers or persons;

(dd) the designation, training, certification, qualifications and functions of persons charged with the application of security measures at particular airports and in respect of flights with aircraft;

(ee)  the administrative steps which must precede the designation by the Minister, in accordance with definition of “designated airport”, of any airport or heliport as a designated airport;

(ff) (i) the part of the expenses incurred in connection with the application of a security plan or of this Act which must be met by the State; and

(ii) the duty of airport managements and air carriers to render available particular equipment at airports and to employ persons for the purposes of the application of the provisions of this Act or any security plan;

(gg) (i) fees for the reimbursement of expenses in relation to the provision of security services for aircraft or at airports, heliports or helistops;

(ii)the prohibition or the control of the publication of incidents relating to security or affecting the safe and orderly operation of an air carrier, designated airport, airport or heliport or of an aircraft in flight, or of the publication of any particulars or information relating to any measures dealing with the security of an aircraft, designated airport, airport or heliport or air navigation facility, including particulars or information relating to any plan or program, staff, device or system, agreement or special procedure in connection with security;

(hh) the serving and consumption of intoxicating liquor on aircraft, the responsibility of air carriers and the training and powers of crew members of aircraft in this regard, the manner in which beverage containers must be stored and handled and the admission to aircraft of persons who are under the influence of intoxicating liquor or drugs;

(ii)   cargo and cargo security;

(jj)   procedures to prevent the disruptive or unruly conduct of passengers;

(kk)  the designation of the authorities or entities responsible for the provision of aviation services;

(ll)   aircraft accident and incident notification procedures;

(mm) the issuing of foreign and other operating certificates;

(nn) the fees payable to the Civil Aviation Authority for the lodging of appeals in terms of Chapter 8; and

(oo) generally, any matter which the Minister may consider necessary or expedient to prescribe in order that the objects of this Act or the Convention may be achieved and the generality of this paragraph must not be limited by the preceding paragraphs.

(2) Different regulations may be made in respect of different air carriers, designated airports, airports, heliports or air navigation facilities, cargo, training and certification of screeners.

(3) A regulation may provide for such incidental, supplementary or transitional matters as may be necessary.

(4) Any regulation—

(a) only comes into operation on publication in the Gazette; and

(b) must be tabled in Parliament by the Minister within 14 days of publication in terms of paragraph (a) or, if Parliament is not then in session, at the commencement of its next ensuing session.

(5) A regulation relating to a financial matter may only be made after consultation with the Minister of Finance.

(6) Any regulation made under this section may prescribe different categories of offences and penalties for the contravention thereof or failure to comply therewith or with any provision of any security plan approved by the Minister, the mode of enforcing such penalties, the imposition of different penalties in case of a second or subsequent contravention or non-compliance, but no such penalty must exceed the penalties mentioned in section 133.

(7) Any regulation made under this section may prescribe the amount payable upon the failure of any person to pay an administrative penalty in terms of section 144 for every day during which such failure continues.

 

 

[1] Constitution of the Republic of South Africa, 1996.

[2] Constitution s 1 (“Republic of South Africa”).

[3] Sovereign, democratic.

[4] “The Republic of South Africa is one, sovereign, democratic state founded on the following values:

  • Human dignity, the achievement of equality and the advancement of human rights and freedoms.
  • Non-racialism and non-sexism.
  • Supremacy of the constitution and the rule of law.
  • Universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness.”

Constitution s 1.

[5] Constitution s 43 (“Legislative authority of the Republic”).

[6] Constitution s 43(a).

The legislative authority of the provincial sphere of government is vested in provincial legislatures: s 43(b).

The legislative authority of the local sphere of government is vested in Municipal Councils: s 43(c).

[7] Subject to stated conditions and restrictions with regard to legislation with regard to matters falling within functional areas of concurrent national and provincial legislative competence, or falling within functional areas of exclusive provincial legislative competence. Constitution s 44(1)(a)(ii) and (3) read with schedule 4; s 44(2) read with s 76 and schedule 5.

[8] Constitution s 44(1)(b)(ii) read with schedule 4 and s 76; s 44(2) read with s 76 and schedule 5.

[9] Constitution s 85 (“Executive authority of the Republic”).

[10] Constitution s 85(1).

[11] Inter alia.

[12] Constitution 85(1)(a).

[13] Constitution 85(1)(e).

[14] Tlouamma and others v Mbethe, Speaker of the National Assembly of the Parliament of the Republic and another [2015] ZAWCHC 140; 2016 (2) BCLR 242 (WCC) (7 Oct 2015) par [62] per Goliath J, Henney and Mantame JJ concurring.

[15] Constitution of the Republic of South Africa Act 200 of 1993.

[16] Interim Constitution s 68(1).

[17] Interim Constitution s 68(2).

[18] The text’s provisions relating to boundaries, powers and functions of provinces would not be considered passed by the Constitutional Assembly unless approved also by at least 60 per cent of all members of the Senate. Interim Constitution s 73(11).

[19] Interim Constitution s 73(13).

[20] Schedule 4.

[21] Interim Constitution s 71(1)(a).

[22] Interim Constitution s 71(1)(b).

[23] With appropriate checks and balances to ensure accountability, responsiveness and openness. Interim Constitution, Sched 4 (Constitutional Principles), Constitutional Principle VI.

[24] Or any provision thereof.

[25] Interim Constitution s 71(2).

[26] And no court of law would have jurisdiction to enquire into or pronounce upon the validity of such text or any provision thereof. Interim Constitution s 71(3).

[27] Public and private sessions were held and experts on specific topics were consulted. In response to a country-wide information campaign, including public meetings and open invitations to the general public, the Constitutional Assembly also received numerous representations, both oral and written.

Although text concerning some contentious issues was drafted only shortly before adoption of the new text, the Constitutional Assembly had throughout issued interim reports containing progressive drafts of the text and of alternative proposals on outstanding provisions. In the result political parties and other interested bodies or persons were kept up to date and had ample time to consider possible grounds for objecting to certification.

[28] In May 1996, by a majority of some 86 percent of its members. Some political parties, although voting in favour of adoption, intimated that they intended opposing certification of the text.

[29] Acting in accordance with the Rules of the Constitutional Court.

[30] Two days later.

[31] Certification of the Constitution of the Republic of South Africa, 1996 [1996] ZACC 26; 1996 (10) BCLR 1253 (CC) (6 Sep 1996) (“the first Certification case”) pars [20], [21].

[32] First Certification case par [24].

[33] First Certification case pars [36] and [39].

[34] First Certification case pars [106]–[109], [111]–[113].

[35] Although the Constitutional Assembly had drafted a constitutional text which complied with the overwhelming majority of the requirements of the Constitutional Principles.

[36] First Certification case, see esp pars [31], [482].

[37] Certification of the Amended Text of the Constitution of the Republic of South Africa, 1996 [1996] ZACC 24; 1997 (1) BCLR 1 (4 Dec 1996) (“the second Certification case”).

[38] The popular election is for delegates to an electoral college that elects the President.

[39] South African Association of Personal Injury Lawyers v Heath and others 2001 (1) BCLR 77 (CC) par [23].

[40] Denise Meyerson, “The Rule of Law and the Separation of Powers,” [2004] Macquarie Law Journal 1.

[41] Local Government Transition Act 209 of 1993.

[42] Local Government Transition Act s 16A(1).

[43] In the Gazette. Local Government Transition Act s 16A(3).

[44] Local Government Transition Act s 16A(2) and (4).

[45] Local Government Transition Act s 16A(1).

[46] Executive Council of Western Cape Legislature and others v President of Republic of South Africa and others 1995 (10) BCLR 1289 (CC) (22 Sep 1995) par [51] per Chaskalson CJ.

[47] Inter alia.

[48] Ibid par [206] per Sachs J.

[49] Ibid pars [128], [130], [136] per Mohamed J.

[50] Panama Refining Co. v Ryan 293 US 388, 421 (1935) per Hughes CJ.

[51] This distinction was explained in Hampton & Co v United States 276 US 394, 407 (1928) by Taft CJ as follows (quoting Ranney J in Wilmington and Zanesville Railroad Co. v Commissioners, 1 Ohio St. 77 (1852)):

The true distinction, therefore, is, between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made.

[52] Victorian Stevedoring and General Contracting Co Pt. Ltd & Meakes v Dignan [1931] 46 CLR 73 101–102.

[53] Local Government Transition Act s 16A.

[54] Despite some differences in the reasoning of individual judges.

[55] Executive Council of Western Cape Legislature and others v President of Republic of South Africa and others supra pars [53]–[56] and [99]–[101].

[56] See, e.g., Constitutionality of the Mpumalanga Petitions Bill, 2000 [2001] ZACC 10; 2001 (11) BCLR 1126 (CC) (5 Oct 2001) par [19].

And see AAA Investments (Pty) Ltd v Micro Finance Regulatory Council and ano [2006] ZACC 9; 2006 (11) BCLR 1255 (CC) per Yacoob J par 49 fn 124, per Langa CJ par 70 fn 5, per O’Regan J par 122 fn 67.

[57] Constitutionality of the Mpumalanga Petitions Bill, 2000 [2001] ZACC 10; 2001 (11) BCLR 1126 (CC) (5 Oct 2001).

[58] Mpumalanga Petitions Bill cl 18.

[59] Inter alia.

[60] Constitution s 104.

[61] Constitution s 125.

[62] Constitutionality of the Mpumalanga Petitions Bill, 2000 [2001] ZACC 10; 2001 (11) BCLR 1126 (CC) (5 Oct 2001) par [19].

[63] Civil Aviation Act 13 of 2009.

[64] Inter alia.

[65] And to repeal, consolidate and amend the aviation laws giving effect to certain International Aviation Conventions; to provide for the establishment of an independent Aviation Safety Investigation Board in compliance with the Chicago Convention; to give effect to certain provisions of the Convention on Offences and Certain other Acts Committed on Board Aircraft; to give effect to the Convention for the Suppression of Unlawful Seizure of Aircraft and the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation; to provide for the National Aviation Security Programme; to provide for additional measures directed at more effective control of the safety and security of aircraft, airports and the like; and to provide for matters connected thereto. Civil Aviation Act, Long title.

[66] Civil Aviation Act s 2(1)(a).

[67] And to every person employed at or in connection with such aerodrome, air navigation facility, aviation facility or designated airport; all foreign registered aircraft and personnel of such aircraft operating in the Republic or over the territorial waters thereof; and all South African aircraft and personnel of such aircraft, whether within or outside the Republic. Civil Aviation Act s 2(1)(b), (c) and (d).

[68] Which contains 168 sections and a number of schedules.

[69] Depending on format and layout.

[70] Excluding four international agreements annexed to the Act:

Convention on International Civil Aviation,

International Air Services Transit Agreement,

Convention on International Interests in Mobile Equipment,

Convention on the International Recognition of Rights in Aircraft.

Civil Aviation Act, Schedules 3, 4, 5 and 6.

[71] Civil Aviation Act s 155 (Regulations).

[72] And the Convention on International Civil Aviation and International Air Services Transit Agreement. Civil Aviation Act s 155(1)(a) and (oo).

[73] Civil Aviation Act s 155(1)(a) to (z) and (aa) to (oo), (2), (3), (4), (6) and (7).

[74] Or the Convention.

[75] Civil Aviation Act s 155(1)(oo).

[76] Civil Aviation Regulations, 2011 (Govt Notice R425 of 1 Jun 2012), as amended.

[77] To date there have been seventeen amendments, the last being in May 2017. Civil Aviation Seventeenth Amendment Regulations, 2017 (Govt Notice R474 of 29 May 2017).

[78] The Regulations are divided into Parts which deal respectively with:

General provisions

Procedures for making regulations and technical standards, granting exemptions and notifying differences

Aviation accidents and incidents

Certification procedures for products and parts

Airworthiness: Non-type certificated aircraft

Aircraft engine emissions (certification)

Aircraft noise (certification)

General maintenance rules

Maintenance rules – non-type certificated aircraft

Registration and marking

Leasing of aircraft

Flight simulator training devices [4th]

Pilot licensing

National pilot licensing

Flight engineer licensing

Cabin crew licensing

Air traffic service personnel licensing

Aircraft maintenance engineer licensing

Medical certification

Glider pilot licensing

Free balloon pilot licensing

General operating and flight rules

Conveyance of dangerous goods

Corporate aviation operations and high performance aircraft

Operation of non-type certificated aircraft

Commercial operation of non-type certificated aircraft

Remotely piloted aircraft systems

Operation of parachutes

Air cargo security

Aviation security training

Aviation security screener certification

Aviation security

Aircraft passenger identification

Air transport operations: Carriage on aeroplanes of more than 19 passengers or cargo

Commercial air transport and general aviation operations: Passengers cargo and mail

Helicopter aerial work and certain other air service operations

Foreign air operators

Helicopter external load operations

Air transport operations: Small aeroplanes

Air transport operations: Commercial operation of free balloons

Aerial work operations

Air ambulance operations

Aerodromes and heliports

Safety management

Aviation training organisations

Aircraft maintenance organisations

Design organisations for products, parts and appliances

Manufacturing organisations

Aviation recreation organisations

Aeronautical telecommunication service providers (electronic services organisation)

Airspace and air traffic service

Procedure design organisations

Meteorological information services

Aeronautical information services

Allocation of radio telephony (RTF) call signs, 3-letter aircraft designators and location indicators

Aeronautical charts

Enforcement

Fees and charges

Administration.

[79] Of the Government Gazette.

The Regulations as originally promulgated cover some 1,088 pages in the version seen.

The Fourth Amendment inserted at least 90 pages of new material.

The Eighth Amendment inserted at least 30 pages of new material regulating remotely piloted aircraft systems (i.e., “drones”): Civil Aviation Eighth Amendment Regulations, 2015 (Govt Notice R444 of 27 May 2015).

Other Amendments altered or substituted existing regulations, often with more extensive material.

[80] For the purposes of this

[81] Civil Aviation Act s 163(1)(a).

The manner in which a technical standard must be issued, amended or withdrawn, and the procedure to be followed in respect thereof, must be as prescribed by regulation. Civil Aviation Act s 163(1)(b).

The Director may incorporate into a technical standard any international aviation standard without stating the latter’s text, and by mere reference to its title and number and year of issue, or other particulars by which the standard can be identified. Civil Aviation Act s 163(2).

[82] Civil Aviation Regulations, 2011 reg 21.08.1(2) as amended by Sixteenth Amendment Regulations, 2017 (Govt Notice R432 of 19 May 2017).

[83] If not all.

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Gary Moore

Gary Moore BA LL.B. (Witwatersrand) LL.M. (UC London) is a South African lawyer and Senior Researcher at the Free Market Foundation.

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