(1) S v GATSI; (2) S v RUFARO HOTEL (PVT) LTD T/A RUFARO BUSES

1994 (1) ZLR 7 (H)

Division: High Court, Harare
Judges: Sandura JP, Smith J & Adam J
Subject Area: Criminal review
Date: 31 December 1993

Statutes — regulations — validity — requirement that regulations be laid before

Parliament — failure to lay regulations before Parliament within time specified in
enabling statute — effect — Presidential Powers (Temporary Measures) (Control of
Omnibuses and Heavy Vehicles) Regulations 1991 (SI 226A/91) — expiry of due to
failure to be laid before Parliament
Statutes — Presidential Powers (Temporary Measures) Act 1 of 1988 — power delegated
by Parliament to President to make laws in defined circumstances — not an abdication of
Parliament’s fundamental lawmaking authority and not a breach of maxim delegatus non
potest delegare
Statutes — Presidential Powers (Temporary Measures) Act 1 of 1988 — s 6 — provision
that re-enacted regulations shall be deemed to have been made when initial regulations
made and to expire 180 days afterwards — regulations made in August but expiring in
September due to non-tabling before Parliament — regulations re-enacted in November
— deemed to have come into effect on date August regulations made
Both accused were convicted of offences in terms of the Presidential Powers (Temporary
Measures) (Control of Omnibuses and Heavy Vehicles) Regulations 1991. The first
accused’s offence occurred on 3 October 1991 and the second accused’s on 3 September
1991. The regulations were published in the Government Gazette on 19 August 1991.
Page 8 of 1994 (1) ZLR 7 (H)
Section 4 of the Presidential Powers (Temporary Measures) Act 1 of 1988, under which
the regulations were made, provides that regulations made under s 2 of the Act “shall” be
laid before Parliament no later than the eighth day on which Parliament next sits after the
regulations were made. Parliament may resolve that the regulations be amended or
revoked and the President is obliged to give effect to such a resolution. If this occurs, the
President may not, for 6 months thereafter, make further substantially similar regulations.
Unless earlier repealed, regulations made under the Act expire on the 181st day following
their commencement. If regulations are repealed and re-enacted in substantially similar
terms, the subsequent regulations are deemed to have commenced when the original
regulations were made. If regulations expire, substantially similar regulations may not be
made for six months thereafter.
In terms of s 5 of the Act, regulations made by the President under the Act shall, to the
extent of any inconsistency, prevail over any other law to the contrary, apart from
regulations made under the Emergency Powers Act [Chapter 83].
Parliament sat for 9 days in late August and early September 1991, the last day of sitting
being 2 September. By this date, the regulations had not been laid before Parliament.
Further regulations, the Presidential Powers (Temporary Measures) (Control of
Omnibuses and Heavy Vehicles) (No. 2) Regulations 1991, which were substantially
similar to the August regulations, were published on 7 November 1991. These regulations
were laid before Parliament within the requisite time and were not revoked or amended
by Parliament.
On review, it was argued on the accused’s behalf that —
(i) it was not competent for Parliament to delegate its lawmaking powers to the
President, such delegation being contrary of s 51 of the Constitution and a serious
infringement of the doctrine of separation of powers because it effectively made the
President a new legislative body;
(ii) even if Parliament could so delegate its powers to the President, the failure to
table the August regulations within the specified time was fatal to their continued
existence, and the accused’s convictions could accordingly not stand, since they were
committed after the last day by which the regulations could be laid before Parliament.
Held, that Parliament could competently delegate legislative powers to the President.
Parliament’s power to legislate is a plenary, not a delegated, power. There could be no
question that Parliament can delegate its lawmaking power to some extent; the question
was, the extent to which
Page 9 of 1994 (1) ZLR 7 (H)
it could do so without delegating its fundamental authority. The provisions of the Act,
though extensive and wide-ranging, are contingent upon the existence of defined
circumstances and are made subject to the control of Parliament itself by the tabling
procedure. The doctrine of separation of powers was of little relevance, since the
Constitution is the supreme law against which the question of any encroachment on
Parliament’s powers had to be determined. The Constitution gave Parliament power to
make such laws as it considers to be necessary for the peace, order and good government
of Zimbabwe. This was a very wide, all-embracing power, the only limitation being that
it must be exercised subject to the provisions of the Constitution. There was nothing in
the Constitution which had the effect of incorporating the maxim delegatus non potest
delegare to restrict the powers of Parliament, and accordingly the Act was not ultra vires
the Constitution.
Held, further (Smith J dissenting), that failure to lay the August regulations before
Parliament within the specified time was fatal. The language of s 4 of the Act was
categorical and imperative. There were no valid considerations which would prevent the
regulations being visited with invalidity. Tabling of the regulations during at least 8 days
of the parliamentary session was essential for their continued validity. On the eighth day,
at midnight, they lapsed. Such a conclusion was in accordance with the intention of the
Legislature. The purpose of the tabling procedure was to allow Parliament the
opportunity to amend or revoke regulations which could be very wide and which could
prevail over any other law. Parliamentary scrutiny of delegated legislation had to be
respected and the tabling procedure provided for it.
Held, further, that the August regulations ceased to have effect after 3 September 1991
and accordingly the conviction of the first accused had to be set aside, as his offence was
committed after that date and before the November regulations came into effect.
Cases cited:
Starey v Graham [1899] 1 QB 406
Biggs v Comr of Police (1982) 8 CLB 576
R v Daniels & Anor 1936 CPD 331
Metal & Allied Workers Union & Anor v State President & Ors 1986 (4) SA 358 (D)
Bloem & Anor v State President & Ors 1986 (4) SA 1064 (O)
Sutter v Scheepers 1932 AD 105
Panama Refining Co v Ryan 293 US 388 (1934)
Page 10 of 1994 (1) ZLR 7 (H)
Municipal Corp of Delhi v Birla Cotton & Weaving Mills Ltd (1968) 3 SCR 251
Johannesburg Consol Invtms Co Ltd v Marshalls Township Synd Ltd 1917 AD 662
Van Heerden NO & Ors v Queen’s Hotel (Pvt) Ltd & Ors 1972 (2) RLR 472
Special Reference No. 1 of 1964 [1965] 1 SCR 413
Smith v Mutasa NO & Anor 1989 (3) ZLR 183 (S)
Gumbo v Norton Selous Rural Council 1992 (2) ZLR 403 (S)
Leibbrandt v SA Rlys 1941 AD 9
Messenger of the Magistrate’s Ct, Durban v Pillay 1952 (3) SA 678 (A)
R v Sheer Metalcraft Ltd & Anor [1954] 1 All ER 542 (Surrey Assizes)
R v Sec of State for Social Svcs, ex p Assn of Metropolitan Authorities [1986] 1 All ER
164 (QB)
Arenstein v Sec for Justice 1970 (4) SA 273 (T)
Justus v Stutterheim Municipality 1962 (4) SA 499 (E)
Nzimande v Durban County Rural Licencing Bd & Anor 1969 (3) SA 35 (D)
Aluchem (Pty) Ltd & Anor v Min of Mineral & Energy Affairs 1985 (3) SA 626 (T)
Min of Trade & Industry & Anor v Nieuwoudt & Ors 1985 (2) SA 1 (C)
In re The Initiative & Referendum Act [1919] AC 935 (PC)
Lion Match Co v Wessels 1946 OPD 376
Nkisimane & Ors v Santam Ins Co Ltd 1978 (2) SA 430 (A)
B Patel for the State
G S Wernberg for the accused
ADAM J: Both accused were convicted of the contravention of s 6 of the Presidential
Powers (Temporary Measures) (Control of Omnibuses and Heavy Vehicles) Regulations,
1991 (SI 226A of 1991) (published in the Government Gazette on 19 August 1991) —
hereinafter called the “August 1991 Regulations”. The offence, in the case of Gatsi, was
committed on 3 October 1991, with the conviction entered on 9 October 1991, and for
Rufaro Buses the offence was committed on 3 September 1991 with the conviction
entered on 12 September 1991. Subsequently, further regulations, the Presidential Powers
(Temporary Measures) (Control of Omnibuses and Heavy Vehicles) (No. 2) Regulations,
1991 (SI 330A of 1991) published in the Government Gazette on 7 November 1991) —
hereinafter called the “November 1991 Regulations” — were promulgated.
Page 11 of 1994 (1) ZLR 7 (H)
Both regulations were made in terms of s 2 of the Presidential Powers (Temporary
Measures) Act 1 of 1986, which provides as follows:
“2. (1) Whenever it appears to the President that—
(a) a situation has arisen or is likely to arise which needs to be dealt with urgently in
the interest of defence, public safety, public order, public morality, public health, the
economic interest of Zimbabwe or the general interest; and
(b) the situation cannot adequately be dealt with in terms of any other law; and
(c) because of the urgency, it is inexpedient to await the passage through Parliament
of an Act dealing with the situation;
then, subject to the Constitution and this Act, the President may make such regulations as
he considers will deal with the situation.
(2) Regulations made in terms of subsection (1) may provide for any matter or thing for
which Parliament can make provision in an Act: Provided that such
regulations shall not provide for any of the following matters or things —
(a) authorising the withdrawal or issue of moneys from the Consolidated Revenue
Fund or prescribing the manner in which withdrawals are to be made therefrom; or
(b) condoning unauthorised expenditure from the Consolidated Revenue Fund; or
(c) providing for any other matter or thing which the Constitution requires to be
provided for by, rather than in terms of, an Act; or
(d) amending, adding to or repealing any of the provisions of the Constitution.”
Section 3 of the Act makes provision for the President to cause a notice of intention to
make regulations in terms of s 2 to be published in the Gazette, but failure to do so does
not invalidate any regulations made under s 2.
Section 4(1) of the Act provides that regulations made under s 2 shall be laid before
Parliament no later than the eighth day on which Parliament next sits after the regulations
were made. Section 4(2) states that if Parliament resolves that the regulations be amended
or revoked the President shall forthwith amend or revoke the regulations. Section 4(3)
lays down that when regulations have been amended or revoked by Parliament, the
President cannot for 6 months thereafter make further substantially similar regulations.
Page 12 of 1994 (1) ZLR 7 (H)
Section 5 states that regulations made shall, to the extent of any inconsistency, prevail
over any other law to the contrary, apart from regulations that have been made in terms of
the Emergency Powers Act [Chapter 83].
Section 6(1) of the Act provides that unless they are earlier repealed, regulations made
shall expire and cease to be of any force or effect on the 181st day following the
commencement of the regulations. Section 6 (2) states that where regulations are repealed
and re-enacted in substantially identical terms by other such regulations, the second-
mentioned regulations shall be deemed to have been made when the first regulations were
made. Section 6(3) provides that, where regulations have expired, the President cannot
for 6 months thereafter make further substantially identical regulations.
It is common cause that Parliament sat on 20, 21, 22, 23, 27, 28 and 29 August and 3 and
4 September 1991 and so this made 3 September 1991 as the last date on which the
August 1991 Regulations could have been laid before Parliament. This was never done.
The November 1991 Regulations were identical, with certain amendments to a few
sections, to the August 1991 Regulations. The November 1991 Regulations were laid
before Parliament within the period required and were not amended or revoked by
Parliament.
The issue for determination is whether such Regulations have any validity.
Mr Patel in the heads of argument for the State submits that the August 1991 Regulations
came into force and effect upon their publication in the Government Gazette on 19
August 1991. He relies on s 18(1) of the Interpretation Act [Chapter 1]. He asserts that
they remained valid despite the failure to lay them before Parliament, because s 4(1) of
the Act is not imperative but merely directory and failure to comply with s 4(1) did not
result in automatic lapsing or invalidity. He argues that s 4(1) prescribes what is termed a
negative resolution procedure. This means that the regulations are subject to a condition
subsequent, whereby Parliament may call for the amendment or revocation of the
regulations: Halsbury’s Laws of England 4 ed vol 34 at para 1436. Mr Patel argues that
there is nothing in that Act to suggest that the regulations made under s 2 cannot become
operative until they are laid before Parliament and that, as far as their validity after the
last date upon which they should have been so laid is concerned, the Act is silent. He
maintains that the requirement to lay before Parliament, which is subject to a negative
resolution procedure, is directory. He states that in England
Page 13 of 1994 (1) ZLR 7 (H)
there is no definitive authority except Starey v Graham [1899] 1 QB 406 at 412. There it
was doubted whether the obligation to lay before Parliament was more than directory and
whether it was necessary to prove compliance. He points out that in Biggs v
Commissioner of Police (1982) 8 CLB 576 the Barbados Supreme Court held that the
duty to lay before Parliament was mandatory not merely directory and that the
requirement was laid down in the Extradition Act 1979, as read with the Interpretation
Act. Non-compliance was held fatal to the validity of the subsidiary legislation. He
argues that the decision in that case is distinguishable on two grounds. Firstly, the
requirement to lay before Parliament was to be “as soon as may be after they are made”,
but the Designated Commonwealth Extradition Order 1980 had not been laid before
Parliament as at the time of its enforcement in April 1981. He submits that “as soon as
may be” must mean within a reasonable time, having regard to the care and the dispatch
with which Parliament’s business should be conducted. Secondly, the decisive factor
according to him appears to have been the impact of the Barbadian Interpretation Act,
which provided that in any enactment the expression “shall” must be construed as
imperative.
Mr Patel asserts further that in South Africa the weight of authority is in favour of the
view that the requirement to lay before Parliament is merely directory. He cites R v
Daniels & Anor 1936 CPD 331 at 334-36; Metal & Allied Workers Union & Anor v
State President & Ors 1986 (4) SA 358 (D) at 361-364 and Bloem & Anor v State
President & Ors 1986 (4) SA 1064 (O) at 1080-81 and 1085-91. He points out that in R v
Daniels supra reliance was placed on the law being rendered uncertain and that the statute
itself had no provision which rendered the regulations invalid for failure to table. Further
the requirement to table was couched in positive language, without any sanctions added
to it. In that case Sutter v Scheepers 1932 AD 165 was applied. As for MAWU’s case, the
court held that the statute itself did not contain anything to suggest that the consequence
of non-tabling was an automatic nullity. Didcott J considered the question of remedies
and concluded that these did not appear particularly effective. In Bloem’s case, the court
concluded that mandamus and internal parliamentary procedures were effective remedies
and therefore the Legislature did not intend any invalidation or lapsing for non-
compliance. There it also applied the test laid down in Sutter v Scheepers supra.
Mr Patel argues that if one follows the South African authorities it must be concluded
that —
(i) the sole purpose of tabling is to inform Parliament
(ii) the power to enforce tabling rests exclusively in Parliament
Page 14 of 1994 (1) ZLR 7 (H)
(iii) the courts cannot question the propriety or regularity of Parliament’s internal
procedure concerning the tabling procedure and so cannot effectively adjudge the validity
of the regulations for non-compliance
(iv) if the regulations were to be invalidated, the law would be rendered uncertain, as
the public at large cannot ascertain whether, and if so, when the regulations have been
tabled
(v) s 4 of the Act is couched in positive form, with no sanction for non-compliance
added and nothing in the Act states that the regulations shall lapse if not tabled, which
makes the requirement merely directory and not imperative.
Mr Wernberg, in the accuseds’ heads of argument, submits that the Presidential Powers
(Temporary Measures) Act 1986 is unconstitutional and objectionable on a number of
grounds, since the Constitution is the supreme law and any other law inconsistent with it
shall be void. The grounds are, firstly, that it amounts to a delegation of lawmaking
power, which is contrary to the provisions of s 51 of the Constitution and, secondly, that
it amounts to a serious infringement of the separation of powers. He accepts that this does
not preclude the creation of subsidiary legislation under Acts of Parliament, but such
subsidiary legislation can only be validly created if it is on matters subordinate or
ancillary to matters referred to in the parent Act. He argues that the Presidential Powers
(Temporary Measures) Act 1986 does not restrict lawmaking to matters incidental, but is
so widely framed as to in effect, make the President a new legislative body. He submits
that delegation is only permissible where the parent Act provides adequate policy and
restricts or confines lawmaking within a specified framework. It is on that basis that in
the USA delegation has been justified: Panama Refining Co v Ryan (1934) 293 US 388
at 421. The policy approach has also been adopted by India: Municipal Corporation of
Delhi v Birla Cotton & Weaving Mills Ltd (1968) 3 SCR 251 at 268-269. He submits
that, in the event that this court should hold that the Act is valid, the failure to table the
regulations is fatal to their continued existence. He states that in MAWU’s case, Didcott
J’s reasoning in finding that non-compliance was not fatal, essentially because Members
of Parliament could waive their right to see the regulation, was open to question. He
argues that Members of Parliament should at the very least be given an opportunity of
deciding whether they wish to avail themselves of such a right. He points out that in
Bloem’s case M T Steyn J held that, since a remedy of mandamus is available, the
Legislature could not have intended invalidation due to non compliance. He points out
that Didcott J found such a remedy dubious in the extreme. The other basis for his
finding, relying on R v Daniels supra, was that invalidity would leave the law in a state of
flux.
Page 15 of 1994 (1) ZLR 7 (H)
Mr Wernberg submits that the position is different in the case before this court because of
the wording of the Act concerned. As regards couching in negative and positive forms, he
argues that this rule of construction is not absolute and would depend upon the
circumstances of the case. He maintains that tabling is so fundamental in the present
context that in our Act it is peremptory and not merely directory.
In his further submissions Mr Patel argues that s 51 of the Constitution is merely
procedural. It relates to the mode of exercising such power and does not define or
impinge upon the nature and scope of that power. He submits that s 50 of the Constitution
provides the substantive lawmaking power of Parliament, which is for the peace, order
and good government of Zimbabwe. In determining the scope and purport of s 50, its
precursors and the forms of legislation thereunder have to be considered. Of this the
framers of our Constitution must be taken to have been fully aware where, it is clear, such
legislation conferred extensive subordinate lawmaking powers. He maintains that it
follows that Parliament’s power of delegation is by necessary intendment recognised and
reaffirmed in s 50. Mr Patel points out that it is true that the Constitution, for instance, in
ss 102 and 103, does give exclusive legislative power to Parliament that cannot be
delegated, but there are also other provisions, like ss 75, 96 and 100, where the
Constitution confers lawmaking powers directly upon authorities (like various
Commissions) other than Parliament. This form of legislative power, although not
plenary, is an original and not a delegated authority: Johannesburg Consolidated
Investment Co Ltd v Marshalls Township Syndicate Ltd 1917 AD 662 at 666. He argues
that as s 109(2) of the Constitution enables an Act of Parliament to make provision for
the powers and functions of the various Commissions it would be absurd to hold that an
Act of Parliament cannot delegate subsidiary legislative power to those Commissions
which already enjoyed lawmaking capacity that is actually conferred by the Constitution.
He also refers to the Zimbabwe Constitution (Transistional Supplementary and
Consequential Provisions) Order 1980 (SI 1980/35 of the United Kingdom) which,
although designed primarily to provide for orderly transition to independence, is in
certain respects of continuing significance in the interpretation and application of the
Constitution. He states that s 4(8) of that Order preserves the pre-existing powers of any
person or authority to make provision for any matter, including the amendment or repeal
of existing law, while s 4(1) and (2) of the Order continues in force existing laws as if
they had been made in pursuance of the Constitution by Parliament. He argues that if an
Act of Parliament can be amended by a subordinate authority, it cannot be denied that an
Act of Parliament may devolve lawmaking capacity to such a subordinate authority.
Page 16 of 1994 (1) ZLR 7 (H)
He submits the true question is not whether Parliament may delegate legislative powers
— that capacity being inherent in its plenery legislative authority — but the extent to
which it may do so without abdicating its sovereign authority. He concedes that the Act
in question does confer extensive and wide-ranging powers of subordinate legislation to
the President, but these are contingent upon the existence of a clearly defined set of
circumstances. The policy of Parliament has been spelt out and may only be carried out
within a specified framework. He accepts that regulations under the Act may modify
existing laws, but this is not beyond the authority of Parliament to delegate: van Heerden
NO & Ors v Queen’s Hotel (Pvt) Ltd & Ors 1972 (2) RLR 472 (A) at 496. He mentions
that a factor of considerable importance is the purely temporary nature and duration of
such regulations that are made. These are intended to deal with an urgent situation,
pending the enactment of an appropriate Act by Parliament itself. Further regulations are
subject to the Constitution. Further, he says, delegated power cannot be exercised for
making provision for any other matter or thing which the Constitution requires to be
provided for by, rather than in terms of, an Act. Nor can the regulations modify the
Constitution. He submits that regulations can be challenged as being ultra vires the Act or
as being void for inconsistency with the Constitution. But, in construing a statute, the
presumption of constitutionality applies. Where necessary a statute should be narrowly
construed so as to sustain its constitutionality.
I am not persuaded by Mr Patel’s argument that the power to enforce tabling rests
exclusively in Parliament and that this court cannot question the regularity or propriety of
Parliament’s internal procedure concerning tabling and so cannot effectively adjudge the
validity of the regulations for non-compliance. As so clearly enunciated by
Gajendragadkar CJ in Special Reference No. 1 of 1964 [1965] 1 SCR 413 at 445 that:
“... it is necessary to remember that though our Legislatures have plenary powers, they
function within the limits prescribed by the material and relevant provisions of the
Constitution.”
The foregoing was cited and approved in Smith v Mutasa NO & Anor 1989 (3) ZLR 183
(S) at 192 by our Supreme Court, which held that where there is a conflict between the
Constitution and the privileges of Parliament the conflict can be resolved by the courts.
Mr Wernberg concedes that Parliament is allowed to some extent to delegate legislative
authority. It should be mentioned that the Constitution of Zimbabwe
Page 17 of 1994 (1) ZLR 7 (H)
Amendment (No. 12) Act 1993 itself provides, in an amendment to s 32 of the
Constitution (which section vests legislative authority in Zimbabwe in the Legislature,
consisting of the President and Parliament) that “this provision shall not be construed as
preventing the Legislature from conferring legislative functions on any person or
authority.” Mr Patel’s submission, which has not been challenged, is that Parliament’s
capacity to delegate power is clearly inherent in its plenary authority and that the
important question is not about delegation but the extent to which Parliament may do so
without abdicating its fundamental authority in that field. I agree with him that the
provisions of the Presidential Powers (Temporary Measures) Act 1986, though extensive
and wide ranging, are contingent upon the existence of defined circumstances and, it
should be added, are made subject to the control of Parliament itself by the tabling
procedure. It follows that, in my view, Parliament has not by the enactment of the Act
abdicated its fundamental legislative authority. In Gumbo v Norton Selous Rural Council
1992 (2) ZLR 403 (S) McNally JA stated that it is not the regulations promulgated which
override the provisions of an Act; it is the provision of the statute providing for
delegation that does so. Further, I am not persuaded by the argument of Mr Wernberg
based on the separation of powers, since the Constitution is the supreme law against
which the question of any encroachment has to be determined.
In MAWU’s case, when dealing with the consequence of the failure to comply with the
tabling procedure, Didcott J narrowed the question to whether the “consequence is an
automatic invalidity of the regulations, not an invalidity restrospective to the day they
were made, but an invalidity arising when the 14 days expired” without tabling. He found
that the Act was silent on the answer to that question. He considered Parliament’s powers
of internal discipline, which might provide a remedy to those who wanted an opportunity
for Parliament to consider the annulment procedure, and concluded that this remedy did
not appear to be particularly effective and speedy. He looked at mandamus as a remedy
and found that this was not enormously attractive when looked at as an effective
alternative. He pondered whether a lack of any really satisfactory remedy unquestionably
strengthened the argument for invalidity or lapsing. He found that one could not get a
mandamus on a Member of Parliament. Further, as he says, if all Members of Parliament
were free to decline to move an annulling resolution “ they must surely be free to say that
they do not wish to have the opportunity of doing so”; and such Members of Parliament
may be aware of the regulations, having read the Government Gazette. He concluded that
if the Members of Parliament can waive their right then there were extraordinary
difficulties about automatic
Page 18 of 1994 (1) ZLR 7 (H)
lapsing. He found that the whole purpose and the only purpose of the tabling was to
inform Members of Parliament and, with some hesitation, that it was “conceived for the
benefit of, and enforceable by, them only”. He held that, bearing “in mind that Parliament
had applied its mind to the very question of validity and had provided a machinery for
achieving it” without at the same time saying anything that would suggest automatic
nullity for non-compliance this meant there was no automatic invalidity.
On the other hand, in Bloem’s case M T Steyn J felt that Parliament needed to be kept
informed by the tabling procedure so as to enable it to exercise some measure of control.
The way it was done was a domestic procedure of Parliament itself. He held that a court
had no jurisdiction, even where Parliament, in dealing with its own internal affairs,
violated statutory provisions. But he found that “the effective remedies of either a
mandamus in a court of law or a Parliamentary resolution” which could compel tabling
was available and therefore he was of the opinion that the Legislature did not intend any
invalidation or lapsing for non-compliance. He also considered whether tabling is
imperative or merely directory. Applying the test in Sutter v Scheepers supra, as
considered in R v Daniels supra he found that the provisons in the statute in question
were couched in positive form with no sanction added for non-compliance and with no
statement that the regulations would lapse and be of no further force or effect. He was
therefore satisfied that they were “merely directory, aimed at expediting” the laying of
the regulations before Parliament “but not intended to annul or invalidate them for non-
compliance”. In R v Daniels supra, uncertainty in the state of the law was said to arise
since very few people would know if it was or was not tabled and when. However, this
would still be the position where the statute concerned expressly provided that there
would be automatic invalidity if it was not tabled within the period stipulated. Also, it is
not correct to say that legislation was being invalidated in a haphazard manner since
Parliamentary sessions are held regularly, with Hansard available daily, together with
extensive publicity and media coverage of such sessions. It is not as if one would not be
able to ascertain whether and when tabling had or had not been done within the stipulated
time period.
It would be appropriate for us to show what Wessels JA in fact said in Sutter v Scheepers
supra. At 173-174 he observed:
“Now it is admittedly a difficult matter to lay down any conclusive test as to when a
provision is directory and when it is peremptory. A long series of cases both here and in
England have evolved certain guiding principles.
Page 19 of 1994 (1) ZLR 7 (H)
Without pretending to make an exhaustive list I would suggest the following tests, not as
comprehensive, but as useful guides. The word ‘shall’ when used in a statute is rather to
be construed as peremptory than as directory unless there are other circumstances which
negative this construction: Standard Bank Ltd v van Rhyn (1925 AD 266).
(1) If a provision is couched in a negative form it is to be regarded as a
peremptory rather than as a directory mandate. To say that no power of attorney shall be
accepted by the Deeds Office unless it complies with certain conditions rather discloses
an intention to make the conditions peremptory than directory: though even such
language is not conclusive.
(2) If a provision is couched in positive language and there is no sanction
added in case the requisites are not carried out, then the presumption is in favour of an
intention to make the provision only directory…
(3) If, when we consider the scope and objects of a provision, we find that its
terms would, if strictly carried out, lead to injustice and even fraud, and if there is no
explicit statement that the act is to be void if the conditions are not complied with, or if
no sanction is added, then the presumption is rather in favour of the provision being
directory.
(4) The history of the legislation will also afford a clue in some cases.”
Similarly in Leibbrandt v South African Railways 1941 AD 9 at 12-13 de Wet CJ said:
“The cases on the subject show that it is impossible to lay down any conclusive test as to
when a legislative provision is directory and when it is peremptory. In the case of
Liverpool Bank v Turner 30 LJ Ch 379, Lord Campbell summed up his conclusion as
follows:
‘No universal rule can be laid down as to whether mandatory enactments shall be
considered directory only or obligatory with an implied nullification for disobedience. It
is the duty of courts of justice to try to get at the real intention of Legislature by attending
to the whole scope of the statute to be construed.’
In the case of Howard v Bodington 2 PD 203, Lord Penzance, after stating that he had
considered the principal cases on the subject and as a result agreed with the conclusion
expressed by Lord Campbell, went on to say:
Page 20 of 1994 (1) ZLR 7 (H)
‘I believe as far as any rule is concerned, you cannot safely go further than that in each
case you must look to the subject-matter; consider the importance of the provision that
has been disregarded and the relation of that provision to the general object intended to
be secured by the Act; and upon review of the case in these aspects decide whether the
matter is what is called imperative or only directory.’”
Further, in Messenger of the Magistrate’s Court, Durban v Pillay 1952 (3) SA 678 (A)
van den Heever JA at 682-683 pointed out:
“In Sutter v Scheepers 1932 AD 165 at p 173, Wessels JA stated certain rules as guidance
in determining whether a statute is peremptory or directory but, as he himself observed,
his rules were not intended to be an exhaustive list or a comprehensive guide. The
cardinal rule is that stated in Standard Bank v Estate van Rhyn 1925 AD 266 at p 274:
‘After all what we have to get at is the intention of the Legislature’ or as Viscount Cave
LC observed in Salford Guardians v Dewhurst [1926] AC 619 at p 626:
‘I base my decision upon the whole scope and purpose of the statute, and upon the
language of the sections to which I have specifically referred.’
…
In the first place the sub-rule with which we are concerned is couched in peremptory
terms: the messenger ‘shall cause the sale to be advertised…’ The Afrikaans has the
categorical imperative ‘moet’. If a statutory command is couched in such peremptory
terms it is a strong indication, in the absence of considerations pointing to another
conclusion, that issues of the command intended disobedience to be visited with nullity.
... As is pointed out in Maxwell Interpretation of Statutes 7 ed p 316:
‘Where powers are…granted with a direction that certain regulations or conditions shall
be complied with, it seems neither unjust nor inconvenient to exact a vigorous observance
of them as essential to the acquisition of the…authority conferred, and it is therefore
probable that such was the intention of the legislature.’”
Both MAWU’s and Bloem’s cases can be distinguished from this case. The South
African Public Safety Act intially provided in s 6 that if the regulations are not approved
by Parliament such regulations shall cease to have effect. This was amended in 1986 by
an amendment which said that the regulations shall be tabled within the period specified
and that Parliament may annul
Page 21 of 1994 (1) ZLR 7 (H)
them. This 1986 amendment could indicate that the legislature did not intend automatic
invalidity for the regulations not being tabled.
It is true that in Starey v Graham supra Channell J did indicate that on his part he doubted
whether such a provision was more than directory. But in R v Sheer Metalcraft Ltd &
Anor [1954] 1 All ER 542 (Surrey Assizes) at 545 Streatfield J held that after a statutory
instrument had been made by the Minister and laid before Parliament, it became a valid
statutory instrument within the Act.
In R v Secretary of State for Social Services, ex p Association of Metropolitan
Authorities [1986] 1 All ER 164 (QB) at 165 in dealing with a section in the Act before
him which said that when making regulations the Minister “shall consult with
organisations appearing to him to be representative of authorities concerned”, Webster J
looked at the whole scope and purpose of the Act and came to the conclusion that the
obligation placed on the Minister to consult was mandatory and not directory.
It should be noted that the above cases and subsequent cases that will be mentioned by
me are couched in positive terms without any sanctions added but which have been
treated as mandatory and not as directory provisions.
In Arenstein v Secretary for Justice 1970 (4) SA 273 (T) a provision in the Act which
stated that “the court…shall, in an application…order that the name of any person be
struck off…” was held, despite arguments that there was the use of positive language in
the section with no sanction added, by the court as imposing an obligation on it to make
the order concerned.
In Justus v Stutterheim Municipality 1962 (4) SA 499 (E), Wynne J, when considering
the provision that the “town clerk shall give notice in writing to every councillor”, held
that the section used the word “shall” which was “manifestly peremptory in its terms”.
In Nzimande v Durban County Rural Licencing Board & Anor 1969 (3) SA 35 (D), in
dealing with the requirement in regulations that “notice shall occupy a space … shall be
in bold and legible Roman characters … and shall be so conspicuously placed as to be
clearly visible”, Miller J held that there did not appear to him to be any justification for
regarding that a “notice shall …” as anything other than mandatory in s 4(2).
Further, once the regulations have been tabled, s 4(2) in specific terms
Page 22 of 1994 (1) ZLR 7 (H)
provides that if Parliament resolves that the regulations be amended or revoked the
President shall forthwith amend or revoke the regulations. This is couched in positive
terms, without any sanctions added to it. Surely there is no justification for regarding
“shall” as anything other than mandatory under s 4(2).
I would now like to refer to the dissenting judgment of Smith J. He indicates that if he
were to find the August 1991 Regulations invalid for non-tabling, s 6 would not be
applicable and therefore the President could make substantially identical regulations
(which he says was done with the November 1991 Regulations) and that such regulations
could have effect for 6 months from date of promulgation. Therefore, Parliament’s
intention that they have effect for 6 months could be easily circumvented. Am I to
assume that Smith J is of the view, although it is couched in positive language with no
sanctions added to it, that s 6(1) is peremptory? With due respect to him, the only way the
November 1991 Regulations can be treated would be to hold that they have impliedly
repealed all the provisions of the August 1991 Regulations which were re-enacted in the
November 1991 Regulations. This means that s 6(2) would apply. This lays down that
where regulations are repealed and re-enacted in substantially identical terms, the second-
mentioned re-enacted regulations shall be deemed to have been made on the same date as
the first-mentioned repealed regulations. Therefore, it seems to me that Smith J is
incorrect when he states that, by re-enacting the November 1991 Regulations,
Parliament’s intention that regulations shall not have effect for more than 6 months can
be easily circumvented. On the contrary, in my view, the effect of s 6(2) on the
November 1991 Regulations is to curtail the time to less than 6 months. Further, s 4(2)
allows regulations tabled to be made subject to Parliamentary resolution that could amend
or revoke them and the President has to act accordingly. Section 4(3) lays down that once
the President has amended or revoked such tabled regulations, he shall not, within a
period of 6 months thereafter, make any substantially identical regulations.
In light of the foregoing, if a situation were to arise where a court has held that
regulations made under s 2 were subsequently invalid for non-tabling and this invalidity
was declared soon after the eighth day on which Parliament sits after the commencement
of the regulations and if substantially identical regulations were to be re-enacted by the
President, then in my view such re-enacted regulations would be deemed to have been
made on the same date as the first-mentioned regulations.
Also, Smith J states that, if s 4 tabling is mandatory, it seems to him that
Page 23 of 1994 (1) ZLR 7 (H)
failure to do so means that the regulations become null and void. He therefore fails to see
how it can be held that they are valid until the eighth sitting day of Parliament and then
expire. What Smith J appears not to have considered is that Parliament, again using
positive language without sanctions added to it, has in express terms provided in the
Interpretation Act [Chapter 1] that every statutory instrument shall come into operation
on the date of its publication in the Government Gazette unless some other date is fixed
in the statutory instrument. It is Parliament that has enacted the date of the operation of
the August 1991 Regulations. I have not, in this judgment, held that tabling is essential to
the validity of the August 1991 Regulations ab initio. To do so would be contrary to the
express language of the Interpretation Act. It is my view that what is required in terms of
s 4(1), during at least 8 days of Parliamentary session, is the subsequent tabling of the
regulations after they come into operation. Failure to satisfy such a tabling affects the
continued validity of the August 1991 Regulations. In other words, tabling during at least
8 days of Parliamentary session of the regulations after their promulgation is essential for
their continued validity. On the eighth day at midnight they lapse. Such an interpretation
of the Act accords with the intention of Parliament. In my view, contrary to that of Smith
J, s 4 does impose a duty for the regulations made to be tabled during the requisite
Parliamentary session. It is true that the Act does not state that the regulations tabled must
be approved or be ratified. However, the Act does give Parliament the power to amend or
revoke regulations that are tabled. This cannot be said to be insignificant. The failure to
provide in the Act that Parliament must meet within a specified period does not in itself
mean that the requirement for tabling during the requisite Parliamentary session was not
imperative for the continued validity of such regulations. I fail to see the importance of
Parliament not sitting for 6 months or that there are not 8 sittings days in the period when
Parliament is in session. The Act, in express language, has selected when tabling is to be
done and the legislators in their wisdom chose the eighth day on which Parliament next
sits after the regulations are made. It must be accepted that the Act was only concerned
when Parliament was only in session for at least 8 days. Further, what must not be
forgotten is that the purpose of the tabling procedure during at least 8 days of
parliamentary session is to allow Parliament the opportunity to amend or revoke
regulations that could be very wide and could prevail over any other law to the contrary.
To that extent, parliamentary scrutiny of delegated legislation has to be respected and the
tabling procedure selected can be said to provide for it.
Looking at the whole scope and purpose of the Presidential Powers (Temporary
Measures) Act 1986 and upon the specific language of s 4, it is undoubtedly
Page 24 of 1994 (1) ZLR 7 (H)
couched in the categorical imperative: “Copies of all regulations shall be laid”. This, as
mentioned by van den Heever JA, “is a strong indication, in the absence of considerations
pointing to another conclusion”, that the legislature intended non-compliance to be
visited with nullity. In arriving at his decision MT Steyn J was obviously influenced by
his finding that there were effective remedies at hand for Parliament, since the period for
tabling was intended at expediting this and not for purposes of invalidity, along with the
language being couched in positive form without any sanctions added. As the test laid
down by Wessels JA was not an exhaustive list or a comprehensive guide, both Didcott
and MT Steyn JJ should have directed their attention to an option which was still
available to the Government of making new regulations of the same kind, since
compliance with the imperative terms of the statute would not have been unjust. In my
view, there were no valid considerations (apart from the 1986 amendment argument)
before them pointing to another conclusion, just as there are none in this case which
would prevent the regulations from being visited with invalidity. Also, the enactment of
the November 1991 Regulations is of some significance. Surely, if it was unnecessary for
the August 1991 Regulations to be tabled, why were the November 1991 Regulations
promulgated?
Accordingly, I hold that Statutory Instrument 226A of 1991 came into effect upon its
publication in the Government Gazette on 19 August 1991 and ceased to have full force
and effect upon failure to lay it before Parliament by 3 September 1991. Statutory
Instrument 330A of 1991 came into effect on 7 November 1991 and continued to be valid
from that date for the period specified in its parent Act, which is 6 months from 19
August 1991. It follows that the conviction and sentence of Rufaro Buses is confirmed
and that of Enos Gatsi is set aside.
SMITH J: I have read the judgment of Adam J and respectfully differ from the
conclusion he reached. The facts are set out in his judgment. The question for
determination by this court is whether the Presidential Powers (Temporary Measures)
(Control of Omnibuses and Heavy Vehicles) Regulations, 1991 — “the August 1991
Regulations” — were valid and in force on 3 September 1991 and on 3 October 1991. Mr
Wernberg argued that the said regulations are ultra vires on the grounds that Parliament
could not delegate its authority to make laws to the President. Section 51 of the
Constitution requires that the power to make laws must be exercised by Bills passed by
Parliament and assented to by the President. Therefore Parliament cannot exercise the
power to make laws by empowering the President to make the laws. Alternatively, he
argued that the August 1991 Regulations ceased to be of force and effect
Page 25 of 1994 (1) ZLR 7 (H)
when they were not tabled in accordance with the requirements of s 4 of the Presidential
(Temporary Measures) Act 1 of 1986 (hereinafter referred to as “the Act”).
With regard to the question of ultra vires, Mr Wernberg has based his argument mainly
on cases from the United States, Ireland and Nigeria. In my view, because a federal
system of government exists in the United States of America and in Nigeria and also
because of the importance given in the United States of America to the doctrine of the
“Separation of Powers”, cases in those countries dealing with aspects of the legislative
competence of Parliament or its equivalent are of little value in determining the question
before this court. In this country, as in the United Kingdom and South Africa, the courts
have consistently held that the Legislature is the sovereign law-making body. In terms of
s 50 of the Constitution, Parliament may, subject to the provisions of the Constitution,
make laws for the peace, order and good government of Zimbabwe. Section 51 provides
that the power of Parliament shall be exercised by Bills passed by Parliament and
assented to by the President. That section, in my opinion, merely sets out the manner in
which Parliament exercises its power to make laws and does not curtail the powers
conferred by s 50 of the Constitution. In view of the detailed provisions set out in Part 5
of Chapter V of the Constitution relating to the procedure for passing Bills, especially
those in force prior to the abolition of the Senate, the provisions of s 51 are essential for
the introduction to the procedure. In my view, the maxim delegatus non potest delegare
has no application in relation to the power of Parliament to make laws. The Constitution
confers on Parliament power to make such laws as it considers to be necessary for the
peace, order and good government of Zimbabwe. That is a very wide, all-embracing
power. The only limitation is that the power must be exercised subject to the provisions
of the Constitution. I do not find anything in the Constitution which would have the effect
of incorporating the maxim delegatus non potest delegare to restrict the powers of
Parliament. That maxim was discussed in Aluchem (Pty) Ltd & Anor v Minister of
Mineral & Energy Affairs 1985 (3) SA 626 (T). At p 631E-G McCreath J said:
“I turn then to the principles of the rule delegatus delegare non potest. These principles
are well-established. In Shidiack v Union Government 1912 AD 642 at 648 Innes ACJ
stated:
‘… where the Legislature places upon any official the responsibility of exercising a
discretion which the nature of the subject-matter and the language of the section show
can only be properly exercised in a judicial spirit, then that responsibility cannot be
vicariously discharged.’
Page 26 of 1994 (1) ZLR 7 (H)
And in Attorney-General, OFS v Cyril Anderson Investments (Pty) Ltd 1965 (4) SA 628
(A) at 639 Botha JA states the following:
‘The maxim delegatus delegare non potest is based upon the assumption that, where the
Legislature has delegated powers and functions to the subordinate authority, it intended
that authority itself to exercise those powers and to perform those functions and not to
delegate them to someone else, and that the power delegated does not therefore include
the power to delegate. It is not every delegation of delegated powers that is hit by the
maxim, but only such delegations as are not, either expressly or by necessary implication,
authorised by the delegated powers.’”
It is clear that the maxim applies in relation to powers and functions delegated by the
Legislature to a particular official or subordinate authority. In Minister of Trade &
Industry & Anor v Nieuwoudt & Ors 1985 (2) SA 1 (C) the scope and application of the
maxim was discussed. It is clear from the judgment of Baker J that the maxim applies
where powers have been delegated by the Legislature. At p 15 the learned judge quotes
from Professor SA de Smith’s Judicial Review of Administrative Action 4 ed and cites
the following extract from p 308 of that work:
“The maxim delegatus non potest delegare does not enunciate a rule that knows no
exception; it is a rule of construction to the effect that ‘a discretion conferred by statute is
prima facie intended to be exercised by the authority on which the statute has conferred it
and by no other authority, but this intention may be negatived by any contrary indications
found in the language, scope or object of the statute’. But the courts have sometimes
assumed that the maxim does lay down a rule of rigid application, so that devolution of
power cannot (in the absence of express statutory authority) be held to be valid unless it
is held to fall short of delegation. In this way an unreasonably restricted meaning has
often been given to the concept of delegation.”
In my view Parliament is an “original” legislator and not a subordinate body exercising
“delegated” powers. The Constitution of Zimbabwe has not delegated authority to
Parliament to make laws. The distinction between an “original” legislator and a
“delegated” legislator is explained in Baxter’s Administrative Law at p 491 as follows:
“The description of provincial councils as ‘original’ legislators is a
Page 27 of 1994 (1) ZLR 7 (H)
hangover from the days before Union. Originally the adjective was adopted by British
judges in order to show respect for colonial legislatures which, though subordinate to the
British Parliament, had plenary powers similar to those of the Mother Parliament herself
within their respective colonies. The epithet was applied to the parliaments of the four
colonies which joined at Union. After Union the ghosts of the old parliaments lived on in
the form of the newly created provincial councils whose existence and powers were
prescribed by the South Africa Act, itself enacted by the British Parliament. Although
South Africa had become a unitary state and provincial councils were subordinate to the
new South African Parliament, the courts continued to label the councils as ‘original’
legislatures. One effect of this was (and still is) that the merits, reasonableness and
certainty of the ordinances would not be reviewed. The courts’ reasons for refusing to do
so were threefold. First, the provincial councils had been created by the British Act and
they derived their powers from the same sources as the South African Parliament.
Secondly, the powers conferred on the councils were ‘plenary’ or very wide. And thirdly,
the councils were composed of elected members and they functioned as ‘deliberative’
bodies. For these reasons it has been assumed that provincial councils are somehow
inherently different from other, ‘delegated’, legislators.”
In Johannesburg Consolidated Investment v Marshalls Township Syndicate Ltd 1917 AD
662 at 666 Innes CJ said:
“The legislative authority conferred by the South African Act upon Provincial Councils is
an original and not a delegated authority, so that within the limits imposed they may
make laws as freely and effectively as the Parliament of the Union. And jurisdiction
given in respect of a general subject matter must be taken to include all powers
reasonably required for the purpose of dealing fully with the subject assigned in
accordance with the conditions and requirements prevailing at the time.”
In the case of In re The Initiative and Referendum Act [1919] AC 935 the Privy Council
held that an Act of the Legislative Assembly of Manitoba was invalid, not on the basis of
delegatus non potest delegare but because it would abrogate any power which the Crown
possessed through the Lieutenant-Governor. At p 945 Viscount Haldane said:
“Section 92 of the Act of 1967 entrusts the legislative power in a Province to its
Legislature, and to that Legislature only. No doubt a body, with a
Page 28 of 1994 (1) ZLR 7 (H)
powers of legislation on the subjects entrusted to it so ample as that enjoyed by a
Provincial Legislature in Canada, could, while preserving its own capacity intact, seek
the assistance of subordinate agencies, as had been done when in Hodge v The Queen,
the Legislature of Ontario was held entitled to entrust to a Board of Commissioners
authority to enact regulations relating to taverns; but it does not follow that it can create
and endow with its own capacity a new legislative power not created by the Act to which
it owes its own existence.”
Thus, in my opinion, Parliament cannot, without amending the Constitution, create a new
legislative body to take over its legislative functions because that would be inconsistent
with the Constitution. It may, however, delegate its legislative functions as it thinks fit.
For the reasons set out above I consider that the maxim has no application in relation to
the power or authority of Parliament to make laws for the peace, order and good
government of Zimbabwe. Therefore the Act is not ultra vires.
The next issue is the failure to lay the August 1991 Regulations before Parliament as
required by s 4(1) of the Act. The August 1991 Regulations were promulgated on 19
August. They came into operation on the date of promulgation: s 18 of the Interpretation
Act [Chapter 1]. There can be no argument about that. It is common cause that
Parliament sat on 20, 21, 22, 23, 27, 28 and 29 September and 3 September and that the
August 1991 Regulations were not tabled on any of those days. Section 4(1) of the Act
requires that copies of all regulations made in terms of s 2 shall be laid before Parliament
no later than the eighth day on which Parliament next sits after the regulations were
made. In order to determine the effect of the failure to comply with the requirements of s
4(1) I consider that the other provisions of the Act must be analysed in order to try to
ascertain the intention of the Legislature.
Where a statute requires that something be done without stating the consequence of non-
compliance with the provision, the normal course followed in order to determine the
consequence is to ascertain whether the provision concerned is peremptory or merely
directory. If it is peremptory, then the act is a nullity; if it is directory, then the act has
legal effect despite the non-observance of the provisions of the statute. In Lion Match Co
v Wessels 1946 OPD 376 van den Heever J (as he then was) pointed out that the
expressions “peremptory” and “directory”, as applied to statutory
Page 29 of 1994 (1) ZLR 7 (H)
provisions, are unfortunate ones, as the court is concerned not with the quality of the
command but with unexpressed consequences following from it, as presumed to have
been intended by the Legislature. However, in Nkisimane & Ors v Santam Insurance Co
Ltd 1978 (2) SA 430 (A) at 433H Trollip JA said:
“Preliminarily, I should say that statutory requirements are often categorized as
‘peremptory’ or ‘directory’. They are well-known, concise, and convenient labels to use
for the purpose of differentiating between the two categories.”
Whatever terminology is used, however, and whatever label is given to the test, it does
not affect the nature of the inquiry which the court is called on to make in order to
attempt to ascertain the intention of the Legislature.
In Leibbrandt v South African Railways 1941 AD 9 the learned Chief Justice referred to
the necessity to consider the whole scope of the statute. At p 12, de Wet CJ said:
“The cases on the subject show that it is impossible to lay down any conclusive test as to
when a legislative provision is directory and when it is peremptory. In the case of
Liverpool Bank v Turner 30 LJ Ch 379, Lord Campbell summed up his conclusion as
follows:
‘No universal rule can be laid down as to whether mandatory enactments shall be
considered directory only or obligatory with an implied nullification for disobedience. It
is the duty of courts of justice to try to get at the real intention of the Legislature by
carefully attending to the whole scope of the statute to be construed.’”
Then at p 13 he continued:
“Voet (3.1.16) discusses the subject and, after stating that, as there are laws forbidding
that certain things shall be done and yet not nullifying what is done contrary thereto nor
fixing a penalty, the maxim ‘that many things are prohibited in law which yet hold good’
came into vogue, gives various instances and states:
‘The reason of all this I take to be that in these and the like cases greater inconveniences
and greater impropriety would result from the rescission of what was done than would
follow the act itself which has been done against the law.’”
Page 30 of 1994 (1) ZLR 7 (H)
In Metal & Allied Workers Union v State President 1986 (4) SA 358 (A) Didcott J held
that regulations which were required to be tabled but which had not been tabled were
valid, despite the failure to comply with the statutory requirement. He found that the
purpose of tabling was to inform Members of Parliament and therefore conceived for the
benefit of, and enforceable by, no one but the Members of Parliament. In Bloem & Anor
v State President of the Republic of South Africa & Ors 1986 (4) SA 1064 (O), where the
court was faced with the same question in relation to emergency regulations which had
not been tabled as required by statute, the court also found that the statutory provision
was not peremptory but merely directory, aimed at expediting their laying before
Parliament but not intended to annul or invalidate them for non-compliance.
When Innes CJ formulated the “golden rule” of interpretation in R v Venter 1907 TS 913,
he drew attention to the necessity for taking the language of the instrument, or of the
relevant portion of the instrument, as a whole. This acknowledged the rule that in the
interpretation of a particular provision of a statute, the statute as a whole must be looked
at. It is beyond dispute that the court is entitled, and indeed bound, when construing the
terms or effect of any provisions of a statute, to consider any other parts of the statute
which throw light on the intention of the Legislature. A particular provision of the statute
must not be construed on its own, apart from the rest of the statute.
Section 2 of the Act sets out the circumstances in which the President can make
regulations under the Act and provides that he may make such regulations as he considers
will deal with the situation, subject to certain limitations. Section 3 provides that the
President shall give notice of his intention to make regulations unless he considers it
inexpedient to do so because of the urgency of the situation. However, subs (3) thereof
provides that a failure to publish notice of such intention shall not invalidate regulations
“subsequently” made. Section 4(1) provides that the regulations shall be laid before
Parliament within eight sitting days. In terms of subs (2) thereof, if Parliament resolves
that any regulations laid before it should be amended or revoked, the President shall
forthwith amend or revoke the regulations. Where regulations have been so amended or
revoked, subs (3) prohibits the President from making regulations substantially identical
to the regulations before they were so amended or revoked. Section 6 of the Act deals
with the expiry of the regulations. In terms of subs (1) thereof, unless earlier repealed, the
regulations expire and cease to have effect six months after their date of commencement.
Subsection (2) provides that where regulations are repealed and re-enacted in
substantially identical terms, the later regulations are
Page 31 of 1994 (1) ZLR 7 (H)
deemed to have been made on the same date as the earlier. Then, in terms of subs (3),
where regulations have expired after six months the President cannot make regulations
which are substantially identical within six months of the expiry. The terms of this
section are clearly designed to ensure that regulations made to deal with a particular
situation cannot have force and effect, or be extended to have effect, for a period of more
than six months. Section 7 of the Act provides that any law or order that has been
suspended, amended or modified by regulations is revived with effect from the expiry or
repeal of the regulations.
Since subs (3) of s 3 of the Act specifically provides that the failure to publish a notice of
intention to make regulations shall not invalidate any such regulations, it could be argued
that the absence of a similar provision in s 4 of the Act implies that the failure to table to
the regulations would invalidate them. However, I consider that ss 6 and 7 of the Act
afford a better indication as to the intention of the Legislature. Section 6 deals with the
expiry of the regulations. Had it been intended that the regulations would expire if they
were not tabled within the eight sitting days, then that would have been stated in s 6. If I
were to hold that the August 1991 Regulations expired on 3 September 1991 because of
the failure to table them, the provisions of s 6 would not be applicable and therefore the
President could make regulations in substantially identical terms (which he did — the
September 1991 Regulations) and such regulations could have effect for six months from
the date of their promulgation, not from the date of promulgation of the August 1991
Regulations. Therefore, the intention of the Legislature that regulations shall not have
effect for more than six months could easily be circumvented. Furthermore s 7 does not
provide for the revival of orders and laws in cases other than the repeal or expiry of the
regulations.
In R v Daniels & Anor 1936 CPD 331 the court had to determine whether regulations
which had not been tabled in the Provincial Council within fourteen days after
publication were valid or invalid. The facts in that case are similar to those in this case, in
that the Administrator had made regulations and published them in the Gazette but they
were not laid upon the table of the Provincial Council in accordance with the
requirements of the ordinance in question. With reference to the regulations in question
and the failure to table them. Watermeyer J, at p 335, said:
“If they were invalid for that reason the consequences would be remarkable. If
regulations were made in a recess, for instance, they would come into force when they
were published in the Gazette and then, on some
Page 32 of 1994 (1) ZLR 7 (H)
uncertain future date, when he whose duty it was to place them on the table of the
Provincial Council, failed to comply with that duty, from that uncertain future date they
would cease to be the law. This would leave the law in a complete state of uncertainty
because nobody would know on what date such regulations ceased to have validity. The
laying of the regulations upon the table of the Provincial Council is not a public act like
promulgation in the Gazette and probably very few people know if it is done or if it is not
done or when it is done. To allow legislation to cease to be in force in that haphazard way
is against the fundamental principles of legislation which are that laws must be certain
and they must be properly promulgated. However, I do not think we are driven to give a
decision which would lead to such an unsatisfactory result because in my opinion the
direction that the regulations be laid on the table of the Provincial Council is directory
and not imperative. The validity of the regulations does not depend upon their being laid
upon the table of the Provincial Council. It will be noted there is no provision in the
statute which says that the regulations are of no force unless laid upon the table of the
Provincial Council and there is no penalty imposed or suggested in the Statute which is to
follow in case the regulations are not laid upon the table of the Provincial Council.
Besides that, it will be noticed that the direction to lay them upon the table of the
Provincial Council is couched in positive language and not negative language and there is
no sanction added to it.”
After referring to the rules set out in Sutter v Scheepers 1932 AD 105, the learned judge
continued at p 336:
“Now these rules afford very valuable guides to us in deciding whether a provision is
directory or imperative and if we apply the second and third ones then we are led to the
conclusion that this provision that the regulations should be laid upon the table of the
Provincial Council is directory because, as I pointed out, the direction is couched in
positive language and there is no sanction and further there is no explicit statement that
the regulations are to be void if the provisions are not complied with.”
If it were to be held that the requirement in s 4 of the Act for tabling regulations is
mandatory, then it seems to me that failure to comply with the requirement must mean
that the regulations become null and void. In Messenger of the Magistrate’s Court,
Durban v Pillay 1952 (3) SA 678 (A) at 683D van den Heever JA said:
Page 33 of 1994 (1) ZLR 7 (H)
“If a statutory command is couched in such peremptory terms it is a strong indication, in
the absence of considerations pointing to another conclusion, that the issuer of the
command intended disobedience to be visited with nullity.”
Likewise, in Nkisimane’s case supra at 434B Trollip JA said:
“Thus, on the one hand, a statutory requirement construed as peremptory usually still
needs exact compliance for it to have the stipulated legal consequence, and any purported
compliance falling short of that is a nullity.”
I fail to see how it can be held that the August 1991 Regulations are valid and effective
until the eighth sitting day of Parliament and then expire or cease to have effect. Surely, if
tabling within eight sitting days is essential to the continued validity of the regulations,
then the failure to table means that the regulations become null and void. That means they
have no force and effect retroactively to the date of promulgation. I can think of no
principle that would justify holding the regulations valid and enforceable until the eighth
sitting day and then visiting nullity upon them after the eighth sitting day. If there were
such a principle, when would the regulations concerned become null and void? Would it
be at midnight on the eighth sitting day or would it be when Parliament rose on the day?
If the principle was based on the grounds that the regulations cease to be effective at the
end of the period when the regulations could have been tabled in order to comply with the
statutory requirement, then it must follow that the regulations become unenforceable
when Parliament actually adjourns on the eighth sitting day. Such a result could not have
been contemplated by the Legislature. There is, in my opinion, a further reason why such
an argument cannot be sustained. If regulations are promulgated and Parliament does not
meet during the six months after their promulgation or does not sit on eight days during
that period, any subsequent failure to table the regulations would have no effect. Surely
the validity of the regulations for the full six months could not be dependent on mere
chance — whether or not there happens to be eight sitting days within that period.
It seems to me that if the Legislature intended the failure to table regulations to have the
effect of nullifying them, it would have specifically so provided. The Act confers on the
President power to make regulations when a situation has arisen which needs to be dealt
with urgently in the interest of defence, public safety, etc and, because of the urgency, it
is inexpedient to await the passage through Parliament of an Act dealing with the
situation. Wide
Page 34 of 1994 (1) ZLR 7 (H)
powers are conferred upon him in making such regulations. The regulations prevail over
any other law to the contrary. Thus they can override, for a short period, Acts of
Parliament. The Legislature has conferred these very wide powers on the President to
deal with matters on an urgent basis in the national interest. I agree with the views
expressed in Bloem’s case supra by Steyn J at p 1091B where he said:
“If, in addition to all that, the countrywide serious consequences of the regulations
lapsing due merely to a non-compliance with the provisions as to the time within which
to table them is taken into consideration in conjunction with the aforementioned
circumstances under which the state of emergency was declared and the emergency
regulations promulgated the indications that the said provisions are directory only
become greatly strengthened.”
There are other factors which, to my mind, indicate that the provisions of s 4 are not
“peremptory” and that the Legislature did not intend that failure to table any regulations
would have the effect of annulling or invalidating the regulations. In providing for the
tabling of the regulations, s 4 does not impose a duty on a Minister or other person to
table the regulations. It merely provides that copies of the regulations shall be tabled. If it
was considered that tabling was essential, surely a duty would have been imposed on a
specific person. The section does not require that Parliament must approve, ratify or even
give consideration to the regulations. There is no provision that Parliament must be
summoned within a specified period to consider the regulations. It is not provided that the
regulations must be tabled as soon as Parliament next meets. It could be that Parliament
does not sit within the six months that the regulations have effect or that there are not
eight sitting days in that period. Therefore the regulations would expire before being
tabled. Furthermore, as stated by Watermeyer J in Daniel’s case supra, the tabling of
regulations in Parliament is not a public act like promulgating regulations in the Gazette.
To hold that they lapse or became null and void on the failure to table them would lead to
uncertainty in the law, not only amongst the public but even with those required to
enforce the law.
For the reasons set out above, I consider that the failure to table the August 1991
Regulations did not invalidate them. Consequently the said regulations remained in full
force and effect until they expired in accordance with the provisions of s 6 of the Act.
Therefore I would confirm the convictions of, and the sentence imposed on, the accused,
namely Rufaro Buses and Enos Gatsi.
Sandura JP: I agree with Adam J.