ADMINISTRATIVE

LAW
LECTURER: B KATUKA

SESSIONS 2 & 3
Delegated legislation

The term ‘delegated legislation’ has two meanings:-

1. Firstly, it means the exercise of power that is delegated to the executive to make
rules.
2. Secondly, it means the output or the rules or regulation etc. made under the power
so given
Reasons for delegated legislation
■ Saves Time for the Parliament
■ Enables Flexibility
■ Dealing with Emergencies
■ Done in Consultation with Affected Interests
■ The Average Legislator
■ Influence of Science and Technology
■ Sets Up New Standards
■ The Administrative Legislation Provides for Expert Legislation
■ Technicality of subject-matter
■ Experiment
■ Complexity of Modern Administration
Dangers of Delegated Legislation
■ Undemocratic Procedures

■ Apparent Lack of Debate

■ Problem of Sub-Delegation

■ The Wording of Delegated Legislation

■ Dependence on Individuals Making Claims to Review Legislation

■ Influence of the High Courts

Requirements for validity.

The requirements for validity of delegated legislation are these–

■ Promulgation
■ Follow prescribed procedures
■ Consistent with general law
■ Certain and positive
■ Ultra vires
■ Gross unreasonableness
Present controls over delegated
legislation
■ Parliamentary controls
■ Court controls
Good law criteria.

They include:
■ fairness – justice and equality, such as equal pay for men and women;
■ usefulness – making society run smoothly, such as laws on driving to make roads
safer;
■ common good – not just supporting the interests of particular groups, such as the
wealthy;
■ enforceability – the majority are willing to obey them; police are able to catch those
who break them.
■ simple – easy to understand and to obey, not too complicated.
Administrative tribunals
■ Tribunals have been defined as “Bodies outside the hierarchy of the courts with
administrative or judicial functions” (Curzon, Dictionary of Law, 1994, p387).
Administrative tribunals are bodies other than courts of law that are given the power
to resolve disputes and to decide cases. Most tribunals are set up by legislation.
These tribunals are referred to as statutory tribunals. Statutory tribunals are
established outside the ordinary court structure in order to resolve conflicts and
decide matters within specific areas.
Characteristics of Administrative Tribunal
The Administrative Tribunals have some distinctive features, these are discussed below:
■ The administrative tribunal is the creation of a statute and thus, it has a statutory origin;
■ It has some of the trappings of a Court but not all;
■ An Administrative Tribunal is entrusted with the judicial powers of the state and thus,
performs judicial and quasi- judicial functions;
■ An Administrative Tribunal is not strictly bound by rules of evidence and procedure;
■ Administrative Tribunals are independent and they are not subject to any administrative
interference in the discharge of their judicial or quasi- judicial functions;
■ The prerogative writs of certiorari and prohibition are available against the decision of
Administrative Tribunal;
■ The decisions of most of the tribunals are in fact judicial rather than administrative as
they have to record finding of facts. They can apply discretion but their discretionary
power is to be exercised judicially.
Reasons for their establishment and
proliferation
Administrative tribunals have been established by statute, in the main, to resolve:
■ disputes between a private citizen and a central government department, such as
claims to social security benefits;
■ disputes which require the application of specialised knowledge or expertise, such
as the assessment of compensation following the compulsory purchase of land; and
■ other disputes which by their nature or quantity are considered unsuitable for the
ordinary courts, such as fixing a fair rent for premises or immigration appeals.
Reasons for their establishment and
proliferation-Cont’
The main reasons for the creation of administrative tribunals may be
identified as:
■ the relief of congestion in the ordinary courts of law (the courts could not cope with
the case-load that is now borne by social security tribunals, employment tribunals
and the like);
■ the provision of a speedier and cheaper procedure than that afforded by the
ordinary courts (tribunals avoid the formality of the ordinary courts); and
■ the desire to have specific issues dealt with by persons with an intimate knowledge
and experience of the problems involved (which a court with a wide general
jurisdiction might not acquire). This is to say that tribunals can be manned by
persons who possess technical expertise within the specialist areas being dealt with
by the tribunals
Differences between tribunals and courts of
law
There are many similarities between an Administrative Tribunal and a Court in certain
aspects.
■ A Court of law is a part of the traditional judicial system. A Tribunal is a body created by a
statute and invested with judicial powers;
■ Judges of the ordinary Courts of law are independent of the executive in respect of their
tenure, terms and conditions of their services. On the other hand, members of
administrative tribunal are entirely in the hands of the Govt. in respect of same;
■ . In a Court of law, the presiding officer, the judge is trained in law but the member of
tribunal may not be trained in law as well;
■ In a Court of law, the judges must be an impartial arbiter and he cannot decide a matter
in which he is interested. But a member of the Administrative Tribunal may be party to
the dispute to be decided by it;
■ A Court of law is bound by all the rules of evidence and procedure but not Administrative
Tribunal unless the statute imposes such an obligation.
Statutory and domestic tribunals
■ A few examples of statutory tribunals in Zimbabwe are such tribunals as–
■ the Liquor Licensing Board under Liquor Act [Chapter 14:12] (deals with liquor
licence applications);
■ the Medicines Control Authority under Medicines and Allied Substances Control Act
[Chapter 15:03] (regulates licensing of drugs, conduct of clinical trials etc);
■ the Industry and Trade Competition Commission under Competition Act [Chapter
14:28] (encourages and promotes competition in all sectors of the economy,
reduces barriers to entry into any sector of the economy or to any form of economic
activity; and investigates, discourages and prevents restrictive practices; to ensure
that there is reasonable competition);
Statutory and domestic tribunals
■ the Intellectual Property Tribunal established in terms of the Intellectual Property
Tribunal Act [Chapter 26:08] (determines any reference, application, appeal or other
matter in terms of the Industrial Designs Act [Chapter26:02], the Patents Act [Chapter
26:03], the Trade Marks Act [Chapter 26:04], the Copyright and Neighbouring Rights Act
[Chapter 26:05], the Geographical Indications Act [Chapter 26:06] or the Integrated
Circuit Layout-Designs Act [Chapter 26:07];
■ the Rent Boards under Housing and Building Act [Chapter 22:07] (deals with disputes
relating to rent control);
■ the Civil Aviation Authority under Civil Aviation Act [Chapter 13:16] (deals with
applications for air operator’s certificates);
■ the Commissioner under War Victims Compensation Act [Chapter 11:06] (deals with
applications for compensation under the Act);
■ Lotteries and Gaming Board under Lotteries and Gaming Act [Chapter 10:26] (deals with
applications for gaming licences);
■ Licensing authorities under Shop Licences Act [Chapter 14:17] (deals with shop licence
applications).