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The constitutionality dilemma regarding regulation 7 to the road accident fund act, as amended

The Constitution of the Republic of South Africa, in its supremacy status, requires all three arms of the State, (i.e., the legislature, the executive and the judiciary) to adhere to, and uphold all its principles. This article seeks to discuss the principle of separation of powers as enshrined in the Constitution, with regards to Regulation 7[1] to Road Accident Fund Act 56 of 1996, as amended.

The Road Accident Fund (“the RAF”) is a statutory body established by the Road Accident Fund Act (“the Act”) with the purpose of compensating individuals who get involved in motor vehicle accidents, and who qualify for such compensation in terms of the Act.

The Constitution establishes three arms of the State, namely the legislature, the executive, and the judiciary, and further articulates the various functions and powers that each arm has. The principle of separation of powers is implied by this constitutional arrangement, and it is a settled legal understanding that the said principle is entrenched in the Constitution.

The principle separates powers and functions amongst the three arms of the state, in order to ensure that each arm exercises limited power, and that there is no potential for abuse of same through checks and balances.  The legislature has powers and functions to enact legislation, the executive has the powers and functions to implement and enforce the legislation, and the judiciary has the powers and functions to interpret legislation.

There are various exceptions to the principle of separation of powers. Even though legislation enactment falls solely within the province of the legislature as indicated above, it can delegate some of its legislative powers to State functionaries (ministers), to enact what is termed Subordinate legislation. Subordinate legislation are regulations crafted for, and are subject to, a particular legislation or Act of Parliament and they are created to expand on and echo the main Act.

In the case of AAA Investments v Micro Finance Regulatory Council, the Constitutional Court considered the provisions of section 15A of the Usuary Act to determine whether the power conferred on the Minister in section 15A either expressly, or by necessary implication, authorises the sub-delegation of the delegated power to exempt. Langa CJ held, “[t]he authorisation, I must stress, must flow from section 15A and not from the Notice. The power to delegate must exist prior to and independently of the manner in which the Minister exercises his powers.” Langa CJ rounded up by stating that “there is no express power for the Minister to delegate.”

In essence, the court in the above case held that for a Minister to sub-delegate their delegated powers, there must be an express empowering provision, or a provision from which necessary implication can be drawn from, in the main Act. Therefore, absent the express empowering provision, or the provision from which necessary implication can be drawn, in the main Act, the sub-delegation of delegated power is not allowed.

Provisions of regulations 7, and sub 3 in particular, purports to sub-delegate authority to publish and amend notices in the government gazette to the RAF, which powers rest with the Minister in terms of section 26(1)

It seems that the Minister, through regulation 7, sought to sub-delegate their delegated power to the RAF, in so far as its wording permits for the RAF to publish and amend notices in the government gazette.

As discussed in the above case law that the Minister is unable to sub-delegate their delegated powers where the main Act has no express provision or by implication empowering them to do so. In this case there is no express provision in the Act nor by implication and therefore regulation 7 as it stands violates the principle of separation of powers and should be declared unconstitutional.