421
CASES / VONNISSE
THE PRINCIPLE OF LEGALITY AND THE
REQUIREMENTS OF LAWFULNESS AND
PROCEDURAL RATIONALITY
Law Socie y o Sou h A ica P esiden o he
RSA (2019 (3) SA 30 (CC))
1 In oduc ion
Apa om con e ing a wide ange o powe s on he P esiden , he
Cons i u ion also egula es he manne in which he P esiden may exe cise
hese powe s. One o he ways in which he Cons i u ion does his is by
imposing an obliga ion on he P esiden o exe cise his o he powe s in
acco dance wi h he p inciple o legali y, which is an inciden o he ule o
law. A necessa y consequence o his equi emen is ha a decision o he
P esiden may be e iewed and se aside on he g ounds ha i in inges he
p inciple o legali y.
F om i s ela i ely modes beginnings in Fedsu e Li e Insu ance G ea e
Johannesbu g T ansi ional Me opoli an Council (1999 (1) SA 374 (CC)) –
whe e he Cons i u ional Cou held ha he exe cise o public powe is only
legi ima e when i is law ul (pa 56) – he p inciple o legali y has expanded in
leaps and bounds o e he pas 21 yea s; oday, i encompasses se e al
o he g ounds o e iew, including law ulness, a ionali y, undue delay and
agueness (see Hoex e “Adminis a i e Jus ice in Kenya: Lea ning om
Sou h A ica’s Mis akes” 2018 62(1) Jou nal o A ican Law 105 123).
O all o hese b oad g ounds o e iew, subs an i e a ionali y has
ecei ed he mos a en ion om he cou s and oday encompasses se e al
o he g ounds o e iew i sel , such as p ocedu al ai ness (Albu Cen e
o he S udy o Violence and Reconcilia ion 2010 (3) SA 293 (CC)) (Albu ),
p ocedu al a ionali y (Democ a ic Alliance P esiden o he RSA 2013 (1)
SA 248 (CC)) (Democ a ic Alliance), ele an and i ele an conside a ions
(Democ a ic Alliance), non-ju isdic ional mis ake o ac (Pepko Re i emen
Fund Financial Se ices Boa d 2003 (6) SA 38 (SCA)), and, on occasion,
he gi ing o easons (Judicial Se ice Commission Cape Ba Council 2013
(1) SA 170 (SCA)).
Un o una ely, he de elopmen o he p inciple o legali y has no been all
plain sailing, and he a ionali y ju isp udence o he Cons i u ional Cou has
gi en ise o complex and di icul ques ions. This is pa icula ly he case
422 OBITER 2021
when i comes o p ocedu al ai ness and p ocedu al a ionali y. I is no
en i ely clea wha he di e ence be ween hese wo equi emen s is and in
wha ci cums ances he one should be applied a he han he o he . The
cou a emp ed o add ess some o hese ques ions in Law Socie y o Sou h
A ica P esiden o he Republic o Sou h A ica (2019 (3) SA 30 (CC))
(Law Socie y). The pu pose o his no e is o discuss his case c i ically.
2 The ac s
In his case, he Law Socie y o Sou h A ica (LSSA) applied o an o de
decla ing ha o me P esiden Jacob Zuma’s decision – aken oge he wi h
he o he membe s o he Summi o he Heads o S a e o he Sou he n
A ican De elopmen Communi y (SADC) – o suspend he ope a ion o he
SADC T ibunal (T ibunal), as well as his decision o dep i e he T ibunal o
i s exis ing ju isdic ion o hea indi idual complain s, was unlaw ul and
i a ional and, he e o e, uncons i u ional.
Fo me P esiden Zuma’s decisions o suspend he T ibunal and dep i e i
o i s exis ing ju isdic ion o hea indi idual complain s a ose ou o he
T ibunal’s judgmen in Mike Campbell (P ) L d The Republic o Zimbabwe
([2008] SADCT 2 (28 No embe 2008)). In his case, he applican was
dispossessed o his a m in e ms o Amendmen 17 o he Cons i u ion o
Zimbabwe (2005). Apa om es ing owne ship o ag icul u al land equi ed
o ese lemen and o he pu poses in he S a e, by ope a ion o law,
Amendmen 17 also p o ided ha no compensa ion would be paid o such
land and ha i s acquisi ion could no be challenged in a cou o law.
A e he was dispossessed, he applican and se e al o he dispossessed
landowne s applied o he T ibunal o an o de decla ing ha Zimbabwe had
b eached i s obliga ions unde he T ea y by enac ing and implemen ing
A icle 17. The T ibunal g an ed he o de . In a i ing a his decision, i ound
ha A icle 17 no only denied he applican s access o he cou s in
Zimbabwe bu also ha i disc imina ed agains hem on he basis o ace. I
hus b eached A icle 4(c), which p o ides ha SADC and i s membe s a es
mus ac in acco dance wi h he p inciples o “human igh s, democ acy and
he ule o law”, and A icle 6(2), which p o ides ha SADC and i s membe
s a es shall no disc imina e agains any pe son on he g ounds o , in e alia,
ace.
Despi e he ac ha A icle 16(5) p o ides ha decisions o he T ibunal
a e binding on membe s a es, Zimbabwe e used o comply wi h he
judgmen . Zimbabwe’s non-compliance was hen e e ed o he Summi o
he Heads o S a e o u he ac ion. Ins ead o li ing up o i s esponsibili y
o en o ce he judgmen s o he T ibunal, he Summi u ned on he T ibunal
i sel , i s , by suspending i s ope a ions; and, secondly, by dep i ing i o i s
exis ing ju isdic ion o hea indi idual cases. The i s goal was achie ed by
simply e using o eappoin o eplace hose membe s o he T ibunal whose
e ms o o ice had expi ed, and he second by d a ing and adop ing he
2014 P o ocol o he SADC T ea y, which p o ided ha he T ibunal’s
ju isdic ion is limi ed o in e -s a e dispu es.
Fo me P esiden Zuma’s decision o suspend he ope a ion o he
T ibunal and especially his decision o dep i e i o i s exis ing ju isdic ion o
CASES / VONNISSE 423
hea indi idual complain s was me wi h dismay by membe s o he legal
a e ni y in Sou h A ica and, as poin ed ou abo e, he LSSA hen applied
o an o de decla ing ha hese decisions we e unlaw ul and i a ional and,
he e o e, uncons i u ional. The P esiden ’s decisions we e unlaw ul, he
LSSA a gued, because hey pu po ed o amend he SADC T ea y wi hou
ollowing he p ocedu e se ou in A icle 36 o he T ea y o doing so. The
P esiden ’s decision was i a ional because he p ocess he ollowed o
amend he SADC T ea y was no a ionally ela ed o he pu pose o which
he powe o amend he SADC T ea y was gi en. The Cons i u ional Cou
ag eed wi h he LSSA and se he P esiden ’s decision aside.
3 The judgmen
In a i ing a i s decision, he Cons i u ional Cou deal , i s , wi h he
a gumen ha o me P esiden Zuma’s decisions we e unlaw ul and,
secondly, ha hey we e i a ional. Each o hese is discussed in u n.
3 1 Unlaw ulness
Inso a as he ques ion o unlaw ulness was conce ned, he Cons i u ional
Cou began by poin ing ou ha al hough he Cons i u ion con e s as
powe s on he P esiden , hese powe s a e cons ained by he p inciple o
legali y, which is an inciden o he ule o law (pa 46). The p inciple o
legali y p o ides, in e alia, ha he P esiden “may exe cise no powe and
pe o m no unc ion beyond ha con e ed on [him o he ] by law” (pa 47). In
o he wo ds, he P esiden may exe cise only hose powe s ha ha e
law ully been con e ed upon him o he and he o she mus exe cise hem in
he manne p esc ibed (pa 48).
Gi en ha he P o ocol ha ope a ionalised he T ibunal o ms an in eg al
pa o he T ea y i sel , he Cons i u ional Cou held ha he equi emen
ha he P esiden mus exe cise his o he powe s in he manne p esc ibed
means ha he P esiden can law ully amend he ju isdic ion o he T ibunal
only in acco dance wi h he p ocedu e se ou o amending he T ea y. This
p ocedu e p o ided ha he T ea y may be law ully amended by a decision
suppo ed by h ee-qua e s o all he membe s a es (A icle 35(1)). I may
no be amended simply by means o a p o ocol, which equi es he suppo
o only 10 membe s a es, as he Summi o he Heads o S a e pu po ed o
do (pa 49).
Apa om p o iding ha he P esiden mus exe cise his o he powe s in
he p esc ibed manne , he Cons i u ional Cou held u he ha he
equi emen o law ulness also p o ides ha he P esiden mus exe cise
hose powe s in good ai h and mus no miscons ue hem (pa 46). Gi en
ha he pu pose o he T ea y is o p o ec and p omo e he p inciples o
democ acy, human igh s and he ule o law, i ollowed ha he P esiden
could no exe cise he powe o amend he T ea y in a manne ha in inged
hese goals (pa 51). Un o una ely, he P esiden ’s decision o amend he
T ea y in a manne ha e ec i ely suspended he T ibunal and s ipped i o
i s exis ing ju isdic ion o hea indi idual complain s did p ecisely ha . I
dep i ed he T ibunal o i s mos c i ical unc ion – namely, esol ing
424 OBITER 2021
indi idual dispu es ela ing o human igh s, democ acy and he ule o law
and hus unde mined hese p inciples (pa 55).
In ligh o hese poin s, he Cons i u ional Cou wen on o ind ha he
P esiden had ac ed unlaw ully by
“ ollowing an impe missible o i egula p ocedu e. Wo se s ill, no only did he
no ha e he powe o no appoin o enew he e ms o Membe s o he
T ibunal bu also lacked he au ho i y o suspend i s ope a ions. This illegali y
o his conduc also s ems om pu po ing o exe cise powe s he does no
ha e. And i canno be o e emphasised ha his conduc was also unlaw ul in
ha he ailed o ac in good ai h and in pu sui o he objec and pu pose o
he T ea y we ha e bound ou sel es o.” (pa 56)
3 2 I a ionali y
Inso a as he issue o i a ionali y was conce ned, he Cons i u ional Cou
began by con i ming ha besides imposing an obliga ion on he P esiden o
exe cise only hose powe s ha ha e law ully been con e ed on him o he ,
he p inciple o legali y also imposes an obliga ion on he P esiden o
exe cise hose powe s a ionally. This equi emen , howe e , applies no
only o he decisions aken by he P esiden bu also o he p ocess in e ms
o which such decisions a e aken. In he case a hand, his mean ha he
decision o amend he T ea y as well as he p ocess leading up o he
amendmen mus be a ionally ela ed o he pu pose o which he powe o
amend was exe cised (pa 51).
Al hough he p inciple o legali y encompasses he equi emen o
p ocedu al a ionali y, he Cons i u ional Cou held ha i was necessa y o
no e ha , in Mase lha P esiden o he RSA (2008 (1) SA 566 (CC))
(Mase lha), i was held ha he p inciple does no encompass he
equi emen o p ocedu al ai ness. I was, he e o e, essen ial o dis inguish
be ween hese wo equi emen s. P ocedu al ai ness p o ides ha a
decision-make mus g an a pe son who is likely o be ad e sely a ec ed by
a decision a ai oppo uni y o p esen his o he iews be o e any decision
is made. P ocedu al a ionali y p o ides ha he e mus be a a ional ela ion
no only be ween a decision and he pu pose o which he powe was gi en,
bu also be ween he p ocess ha was ollowed in making he decision and
he pu pose o which he powe was gi en (pa 63).
“The p oposi ion in Mase lha migh be seen as being a a iance wi h he
p inciple o p ocedu al i a ionali y laid down in bo h Albu and Democ a ic
Alliance. Bu i is no so. P ocedu al ai ness has o do wi h a o ding a pa y
likely o be disad an aged by he ou come he oppo uni y o be p ope ly
ep esen ed and ai ly hea d be o e an ad e se decision is ende ed. No so
wi h p ocedu al i a ionali y. The la e is abou es ing whe he , o ensu ing
ha , he e is a a ional connec ion be ween he exe cise o powe in ela ion o
bo h p ocess and he decision i sel and he pu pose sough o be achie ed
h ough he exe cise o ha powe .” (pa 64)
The c i ical issue in his case, he e o e, was no whe he o me P esiden
Zuma ga e anybody a ai hea ing o no . Ins ead, he c i ical issue was
whe he he p ocess ollowed by o me P esiden Zuma be o e he decided
e ec i ely o suspend he T ibunal and dep i e i o i s exis ing ju isdic ion o
hea indi idual complain s was a ionally connec ed o he pu pose o which
CASES / VONNISSE 425
he powe o amend he T ea y had been gi en o him – namely, o uphold
he p inciples on which he T ea y was based (democ acy, human igh s and
he ule o law), and o p o ec he T ibunal as one o he ins i u ions c ea ed
by he T ea y (pa 65) and hus secu e he bes in e es s o he ci izens o
SADC (pa 69).
The Cons i u ional Cou held ha i was no . In a i ing a his decision,
he cou ound ha he p ocess ollowed by o me P esiden Zuma would
be a ionally connec ed o he pu pose o which he powe o amend he
T ea y had been gi en o him, only i he ollowed he p ocedu e o
amending he T ea y se ou in A icle 36(1), which equi es a decision
suppo ed by h ee-qua e s o all he Membe S a es o SADC. Gi en ha
o me P esiden Zuma had no ollowed his p ocedu e, his decision was
i a ional and hus uncons i u ional (pa 70).
“I is necessa y o ei e a e ha he legi ima e pu pose o p esc ibing an
amendmen p ocess ha equi es he suppo o h ee-qua e s o Membe
S a es is designed o ende i e y di icul o a ally amend p o isions ha
ela e o he e y essence o he T ea y, like he p o ec ion o human igh s,
access o he T ibunal and he ule o law. We emphasise ha he pu pose o
egula ing he powe o amend so igh ly is o secu e he bes in e es s o
SADC ci izens. An amendmen like he downg ading o he s a us o he
T ibunal is he e o e equi ed o be o e whelmingly suppo ed. The p ocedu e
o he amendmen h ough he P o ocol ha was ollowed is no only
una ailable o he Membe S a es, bu also us a es he pu pose o gi ing
hem he powe o amend he T ea y. I equi es a lesse majo i y suppo o
pass han he amendmen p ocedu e p esc ibed by he T ea y.” (pa 69)
4 Commen
While he e is no doub ha he Cons i u ional Cou came o he co ec
conclusion, i s judgmen gi es ise o se e al in e es ing issues.
4 1 Unlaw ulness
As he summa y se ou abo e clea ly indica es, he Cons i u ional Cou
based i s decision on wo c i ical g ounds: i s , ha he P esiden ’s decision
was unlaw ul and, secondly, ha i was i a ional. Inso a as he i s g ound
was conce ned, he Cons i u ional Cou ound ha he P esiden ’s decision
was unlaw ul, no because he lacked he au ho i y o amend he ju isdic ion
o he SADC T ibunal, bu a he because he did no do so in he manne
p esc ibed by A icle 35(1) o he T ea y.
This aspec o he equi emen o law ulness also o ms a pa o he
common-law ules go e ning adminis a i e ac ion and has been codi ied in
sec ion 6(2)(b) o he P omo ion o Adminis a i e Jus ice Ac 3 o 2000
(PAJA), which p o ides ha “a cou o ibunal has he powe o judicially
e iew an adminis a i e ac ion i a manda o y and ma e ial p ocedu e o
condi ion p esc ibed by an empowe ing p o ision was no complied wi h”.
A common law, p esc ibed p ocedu al equi emen s we e e e ed o as
p ocedu al ju isdic ional ac s, and a dis inc ion was d awn be ween
manda o y p ocedu al ju isdic ional ac s and disc e iona y p ocedu al
ju isdic ional ac s. This dis inc ion was necessa y because a ailu e o
426 OBITER 2021
comply s ic ly wi h manda o y p ocedu al ju isdic ional ac s would usually
esul in in alidi y, while a ailu e o comply s ic ly wi h disc e iona y
p ocedu al ju isdic ional ac s would no .
As Hoex e poin s ou , manda o y p ocedu es a e usually deno ed by he
use o pe emp o y wo ds in legisla ion such as “mus ” o “shall”, while
disc e iona y p ocedu es a e usually deno ed by he use o a pe missi e
wo d such as “may”. Apa om pe emp o y wo ds, she poin s ou u he
ha manda o y p ocedu es a e also deno ed by “ he use o nega i e wo ds
such as ‘no pe son shall’ and he p esence o a sanc ion o non-
compliance” (Hoex e Adminis a i e Law in Sou h A ica 2ed (2012) 292).
I is impo an o no e, howe e , ha he me e ac ha a p ocedu e is
classi ied as manda o y does no mean ha i mus be s ic ly complied wi h.
In some cases, su icien compliance may be adequa e. This is because he
cou s do no app oach his issue in a legalis ic manne . Ins ead, hey ask
whe he he p ocedu e ollowed by he adminis a o was su icien o
achie e he pu pose o he p o ision in ques ion. I i was, hen he
p ocedu e o he adminis a o will be upheld as law ul (see Quino , Co de ,
Ma ee, Mu co , Kidd, Webbe , Bleaza d and Budlende Adminis a i e
Jus ice in Sou h A ica: An In oduc ion (2015) 137).
The i al ole o he pu pose o he s a u o y p o ision in de e mining
whe he an adminis a o has complied wi h a manda o y p ocedu e was
highligh ed by he Cons i u ional Cou in Allpay Consolida ed In es men
Holdings (P y) L d Chie Execu i e O ice o he Sou h A ican Social
Secu i y Agency (2014 (1) SA 604 (CC)), whe e i held:
“[A]ssessing he ma e iali y o compliance wi h legal equi emen s in ou
adminis a i e law is, o una ely, an exe cise unencumbe ed by excessi e
o mali y. I was no always so. Fo mal dis inc ions we e d awn be ween
‘manda o y’ o ‘pe emp o y’ p o isions on he one hand and ‘di ec o y’ ones
on he o he , he o me needing s ic compliance on pain o non- alidi y, and
he la e only subs an ial compliance o e en non-compliance. Tha s ic
mechanical app oach has been disca ded. Al hough se e al ac o s need o
be conside ed in his kind o enqui y, he cen al elemen is o link he ques ion
o compliance o he pu pose o he p o ision. In his Cou O’Regan J
succinc ly pu he ques ion in ACDP Elec o al Commission as being
‘whe he wha he Applican did cons i u ed compliance wi h he s a u o y
p o isions iewed in he ligh o hei pu pose’.” (pa 30)
Al hough he Cons i u ional Cou did no classi y he p ocedu e o
amending he SADC T ea y as manda o y o ma e ial, he e is no doub ha
i is. Apa om he ac ha A icle 35(1) o he T ea y uses he wo d “shall”,
he cou has consis en ly held ha he p ocedu e o passing a Bill, including
a Bill amending he Cons i u ion o an Ac , mus be complied wi h s ic ly.
This is because hese manne -and- o m p ocedu es a e designed o
p omo e he undamen al democ a ic alues such as delibe a ion, public
pa icipa ion, openness and anspa ency.
In Execu i e Council o he Wes e n Cape Legisla u e P esiden o he
RSA (1995 (4) SA 877 (CC) pa 62), o example, Chaskalson P s a ed ha
he manne -and- o m p o isions o he in e im Cons i u ion we e no me ely
di ec o y. Ins ead, “ hey p esc ibed how laws we e o be made and changed
and we e pa o a scheme which gua an eed he pa icipa ion o bo h
houses in he exe cise o he legisla i e au ho i y es ed in Pa liamen unde
CASES / VONNISSE 427
he Cons i u ion, and also es ablished he machine y o b eaking
deadlocks”.
In Doc o s o Li e In e na ional Speake o he Na ional Assembly (2006
(6) SA 416 (CC) pa 208), he Cons i u ional Cou held ha “[i] is i e ha
legisla ion mus con o m o he Cons i u ion in e ms bo h o i s con en and
he manne in which i was adop ed. Failu e o comply wi h manne and o m
equi emen s in enac ing legisla ion ende s he legisla ion in alid”. See also
Tongoane Na ional Minis e o Ag icul u e and Land A ai s (2010 (6) SA
214 (CC) pa 97‒109).
This aspec o he judgmen in Law Socie y hus con i ms ha he
equi emen o unlaw ulness encompasses bo h a lack o au ho i y and a
ailu e o ollow a manda o y and ma e ial p ocedu e. I also highligh s (once
again) ha he g ounds o e iew unde he p inciple o legali y o e lap in
many espec s wi h he g ounds o e iew unde PAJA (see B and and
Mu co “Adminis a i e Law” 2013 Annual Su ey o Sou h A ican Law 61
62).
Apa om inding ha he P esiden ’s decision o amend he ju isdic ion
o he SADC T ibunal was unlaw ul because he ailed o ollow he
manda o y p ocedu e p esc ibed by A icle 35(1) o he T ea y, he
Cons i u ional Cou also ound ha he P esiden ’s decision was unlaw ul
because he ac ed in bad ai h and miscons ued his powe s. His decision
was no aimed a p o ec ing he T ibunal and, hus, he T ea y p inciples i
was es ablished o uphold, bu a he a pa alysing i (Law Socie y pa 45).
Bo h g ounds o e iew we e ecognised by he Cons i u ional Cou in
P esiden o he Republic o Sou h A ica Sou h A ican Rugby Foo ball
Union (1999 (4) SA 147 (CC) pa 148), when i held ha no only is he
exe cise o public powe cons ained by he p inciple o legali y bu he
P esiden mus also ac in good ai h and no miscons ue his o he powe s.
These equi emen s a e aimed a ensu ing ha he P esiden exe cises he
powe s con e ed upon him o he in he public in e es , a he han in his o
he own in e es (see Hoex e Adminis a i e Law 308).
Al hough hese g ounds o e iew ha e o med pa o he p inciple o
legali y o a long ime, his is he i s case in which he Cons i u ional Cou
has ound ha he P esiden ac ed in bad ai h and miscons ued his powe s.
(In Democ a ic Alliance, he SCA also ound ha he P esiden had
miscons ued his powe s, bu on appeal, he Cons i u ional Cou held ha i
was no necessa y o decide his ques ion.) Apa om i s his o ical
signi icance, his aspec o he judgmen highligh s ano he dismal aspec o
o me P esiden Zuma’s lamen able p esidency and con i ms he c ucial
ole he Cons i u ional Cou has played in amelio a ing a leas some o his
cons i u ionally delinquen decisions.
4 2 Ra ionali y
A e he Cons i u ional Cou came o he conclusion ha he P esiden ’s
decision was unlaw ul, i was s ic ly speaking no necessa y o he cou o
go on and also conside whe he i was i a ional. The inding ha he
P esiden ’s decision was unlaw ul was su icien o ende i uncons i u ional
428 OBITER 2021
and in alid. Howe e , he ac ha he cou wen on o conside he
a ionali y equi emen is o be welcomed.
This is because i allowed he cou o add ess one o he mo e complex
and challenging issues o which i s legali y ju isp udence has gi en ise –
namely, whe he he p inciple o legali y encompasses he equi emen s o
p ocedu al ai ness as a sepa a e and sel -s anding g ound o e iew and, i
so, wha he di e ence is be ween p ocedu al ai ness and p ocedu al
a ionali y.
Inso a as his issue is conce ned, he Cons i u ional Cou has adop ed a
leas h ee di e en app oaches. In Mase lha, a majo i y o he cou held
ha legali y does no encompass p ocedu al ai ness as a sel -s anding
g ound o e iew. In a i ing a his decision, he majo i y held ha i is
inapp op ia e o subjec execu i e ac ion o he po en ially one ous
equi emen s o p ocedu al ai ness equi emen s o wo easons: i s ,
execu i e ac ion is exp essly excluded om he pu iew o PAJA (pa 76);
and, secondly, p ocedu al ai ness is a “ca dinal ea u e” o adminis a i e
ac ion, no execu i e ac ion (pa 77).
In i s subsequen judgmen in Albu , he Cons i u ional Cou e ined he
s ic app oach i adop ed in Mase lha and held ha execu i e ac ion migh
be subjec ed o he equi emen s o p ocedu al ai ness, and in pa icula he
equi emen o hea in e es ed pa ies, when his was he only way in which
he P esiden could exe cise he powe ha had been con e ed upon him o
he in a a ional manne (pa 72). I ollowed, he e o e, ha while he
p inciple o legali y did no encompass p ocedu al ai ness as a sel -s anding
g ound o e iew, i did encompass i as a pa o a ionali y e iew in an
app op ia e case.
Finally, in Minis e o De ence and Mili a y Ve e ans Mo au NO (2014 (5)
SA 69 (CC)), he Cons i u ional Cou in e p e ed Mase lha e y na owly
and held ha i applied o he speci ic ci cums ances o ha case – namely,
he ela ionship be ween he P esiden and he Head o he Na ional
In elligence Agency, which was a ma e o na ional secu i y (pa 81).
Ou side o hese speci ic ci cums ances, he cou s a ed in an obi e dic um
ha he e was no eason o he equi emen s o p ocedu al ai ness no o
apply o execu i e ac ion as a sel -s anding g ound o e iew (pa 83).
A oughly he same ime, he Cons i u ional Cou also in oduced he
concep o p ocedu al a ionali y when i held, in Democ a ic Alliance, ha
a ionali y applies no only o he decision i sel bu also o he p ocess by
which he decision is made. This is because a ionali y e iew “is an
e alua ion o he ela ionship be ween means and ends” and he means o
achie ing he pu pose o which he powe was con e ed includes
e e y hing ha is done o achie e he pu pose:
“No only he decision employed o achie e he pu pose, bu also e e y hing
done in he p ocess o aking ha decision, cons i u e means owa ds he
a ainmen o he pu pose o which he powe was con e ed.” (pa 36)
Apa om in oducing he concep o p ocedu al a ionali y, he
Cons i u ional Cou also held ha a ailu e o ake in o accoun ele an
ac s o ms a pa o he means o achie e he pu pose o which he powe
CASES / VONNISSE 429
was con e ed and ha such a ailu e may colou he en i e p ocess wi h
i a ionali y and hus ende he inal decision i sel i a ional. When i comes
o deciding whe he a ailu e o ake in o accoun ele an ac s does colou
he en i e p ocess wi h i a ionali y, a h ee-s age inqui y mus be ollowed:
i s , ha e ele an ac o s been igno ed?; secondly, i hey a e ele an , is
he ailu e a ionally ela ed o he pu pose o which he powe was
con e ed?; and hi dly, i he ailu e is no a ionally ela ed o he pu pose,
does he ailu e colou he en i e p ocess wi h i a ionali y? (pa 39).
A e se ing ou hese p inciples, he Cons i u ional Cou applied hem o
he ac s o he case. In his espec , i ound ha o me P esiden Zuma’s
decision o appoin M Menzi Simelane as he Na ional Di ec o o Public
P osecu ions (NDPP) was p ocedu ally i a ional because he ailed o ake
in o accoun ad e se indings made agains M Simelane by he Ginwala
Commission o Inqui y. These indings we e ele an , he cou held,
because hey sugges ed ha M Simelane was no a i and p ope pe son o
be appoin ed as he NDPP as equi ed by sec ion 9(1) o he Na ional
P osecu ing Au ho i y Ac 32 o 1998 and he P esiden ’s ailu e o ake hem
in o accoun did colou he en i e p ocess wi h i a ionali y and hus ende ed
his inal decision i a ional.
As he summa y se ou abo e indica es, he Cons i u ional Cou ’s
ju isp udence is con using and con adic o y. In addi ion, i has in oduced a
new concep in o Sou h A ican cons i u ional law – namely, p ocedu al
a ionali y – bu has ailed o de ine his concep clea ly o dis inguish i om
p ocedu al ai ness. In i s judgmen in Law Socie y, he cou has a emp ed
o add ess his las issue. In his espec , he ollowing poin s may be
ex ac ed om i s easoning:
• Fi s , p ocedu al ai ness and p ocedu al a ionali y a e sepa a e aspec s
o he p ocedu al dimension o he a ionali y equi emen (pa 64 and
65).
• Secondly, p ocedu al ai ness imposes an obliga ion on he P esiden o
a o d a pa y he oppo uni y o make ep esen a ions be o e he
P esiden akes a decision ha may ad e sely a ec ha pa y (pa 64
and 65).
• Thi dly, whe e an empowe ing p o ision exp essly p o ides o a speci ic
p ocedu e, he P esiden mus ollow ha p ocedu e be o e exe cising he
powe in ques ion. A decision o ollow a di e en and especially less
one ous p ocedu e would no be a ionally ela ed o he pu pose o
which he powe was g an ed (pa 67‒70).
While he Cons i u ional Cou ’s a emp o dis inguish be ween p ocedu al
ai ness and p ocedu al a ionali y is o be welcomed, he manne in which i
did so gi es ise o some conce ns. One o hese is he sugges ion ha
p ocedu al ai ness and p ocedu al a ionali y a e sepa a e aspec s o he
p ocedu al dimension o a ionali y. Ins ead o seeing hem as sepa a e
aspec s, howe e , i appea s, o wo easons, o be mo e co ec o ea
p ocedu al ai ness as one aspec o a b oade equi emen o p ocedu al
a ionali y.
Fi s , his is he manne in which he Cons i u ional Cou i sel has
desc ibed he ela ionship be ween p ocedu al ai ness and p ocedu al
