administrator who took the decision.

The requirement states that a decision

may be reviewed and set aside if the person exercising the power lacked
the
authority to do so, or had power delegated to him or her in an unauthorised
manner, or was biased or was reasonably suspected of being biased.
In SARFU III, the Constitutional Court pointed out that the
circumstances in which a functionary has unlawfully abdicated the power
vested in him or her may be divided into three categories:
• first, where the functionary unlawfully delegates the power to someone
else
• second, where the functionary acts on the instructions of someone else
• third, where the functionary refers the decision to someone else.75
In SARFU III, the Constitutional Court explained the three categories of
abdication as occurring:
where a functionary in whom the power has been vested
delegates that power to someone else. Whether such
delegation is valid depends upon whether the recipient of
the power is lawfully entitled to delegate that power to
someone else. There can be no doubt that when the
Constitution vests power to appoint commissions of
inquiry in the President, the President may not delegate
that authority to a third party. The President himself
must exercise that power. Any delegation to a third party
would be invalid. The second category referred to by
Baxter deals with cases when a functionary vested with a
power does not of his or her own accord decide to
exercise the power, but does so on the instructions of
another. The third category, passing the buck,
contemplates a situation in which a functionary may
refer the decision to someone else.76
If there is an unlawful abdication of power, the decision will be set aside
on
review. However, note that section 238(a) of the Constitution
contemplates
the inevitability that powers will be delegated as a necessity for the ‘daily
practice of governance’, stating that:
An executive organ of state in any sphere of government
may –
delegate any power or function that is to be exercised
or performed in terms of legislation to any other
executive organ of state, provided the delegation is
consistent with the legislation in terms of which the
power is exercised or the function is performed.
In each case a court will have to determine whether a delegation is lawful
or
unlawful. In the case of AAA Investments (Proprietary) Limited v Micro
Finance Regulatory Council and Another, the Constitutional Court set out
some criteria to determine whether a delegation is acceptable, stating that:
Criteria relevant to determining whether a delegation of
a delegated power is acceptable include the following:
the character of the original delegation; the extent of the
delegation of the delegated power; the extent to which
the original delegee continues to review the exercise of
the delegated power; considerations of practicality and
effectiveness; and the identity of the institutions or
persons by whom and to whom power is delegated.77
The exercise of an administrative power in terms of delegated authority
will
only be impermissible and unlawful if that delegation does not comply
with
the criteria set out above.