All legislation that makes provision for discretionary powers, must also incorporate the objective criteria by which those powers are to be exercised. The enabling legislation must, in addition, stipulate the purpose or purposes for which the powers may be exercised.

OVERVIEW

Discretion is an accepted part of the administration of law. When it is necessary for the authorised official to exercise a discretion, a dependable judgment must be exercised on whether the proposed action is appropriate to the discretion conferred. Every exercise of a discretion must occur strictly in accordance with the criteria that are stipulated in the enabling legislation.

ELEMENTS OF THE IMPERATIVE

Discretionary power – Discretionary power is exercised when an official is empowered by law to determine the outcome of a particular transaction. There must be a specified purpose for the discretionary power conferred. For example, an impermissible discretionary provision might stipulate that, “… upon completion of the form, the official, if he or she is satisfied that the certification serves the public interest, must certify the vehicle.” Such a provision lacks the essential objective criteria according to which the discretion is to be exercised. A more acceptable provision would list several requirements which constitute the public interest, and empower the official to measure the form against the requirements.

Objective criteria – It is critical that the criteria stipulated in the legislation be objective and not rely in any way upon a subjective assessment of the relevant facts.

RELEVANT JURISPRUDENCE

Core – Section 238 of the Constitution.

Supporting – Sections 99, 126 of the Constitution.

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The Rule of Law Project is an initiative of the Free Market Foundation (www.freemarketfoundation.com) and is dedicated to giving substance to section 1(c) of the Constitution of the Republic of South Africa, which provides for the supremacy of the Constitution and the Rule of Law.