The Metaphysic of Oudekraal

[1] Justice Chris Jafta will retire from the Constitutional Court in October of this year. In the common law tradition of examining judges’ individual contributions to law and jurisprudence, I offer this brief comment on a subject his dissents have won me over: the so-called “Oudekraal principle” (in this article I will use ‘principle’ and ‘rule’ interchangeably, Dworkinians be damned).

[2] Before we get into the juicy stuff, a note on the title of this piece. Aristotle, when writing the fourteen books today collectively known simply as Metaphysics, described what he was doing as “first philosophy” — the study of “being as such” or the study of “first causes”. In sum, he had hoped to answer that vexing philosophical question: what does it mean “to be”? I hope, in the course of this article and in light of the subject-matter of my most recent musings here, that the reason for my choice of title will become apparent.

[3] A few weeks ago, while I was absent-mindedly surfing the net, I came across an interesting judgment on SAFLII. The judgment, Minister of Home Affairs and Another v Public Protector of the Republic of South Africa concerned the question whether the exercise of the Public Protector’s remedial and reporting powers amounted to administrative action in terms of the Promotion of Administrative Justice Act and whether an applicant seeking to challenge the Public Protector’s decisions should rely on that statute. A preliminary question that the Supreme Court of Appeal (‘SCA’) in this case had to answer was whether the decisions of the Public Protector were binding on the Minister and the director-general of Home Affairs. That question had been settled after the high court had given judgment in this matter but before the Constitutional Court had given judgment in Nkandla.

[4] In Nkandla, the Constitutional Court held that the Public Protector had the power to issue binding orders (and as I have previously written, the ratio for this holding is hard to discern). But in this case, the SCA held that the court in Nkandla had held “that the Oudekraal principle applies to decisions of the Public Protector: her decisions cannot be ignored (or trumped by parallel processes) and unless they are set aside on review, they must be obeyed and given effect to. In this sense, they are binding and not mere recommendations.”

[5] Sure enough, Oudekraal has become one of those decisions cited as authority for a range of legal propositions applicable to very dissimilar factual scenarios. The state of our jurisprudence on Oudekraal is such that it should worry all lawyers. All of us should be asking the question: what exactly is this fabled “Oudekraal principle”? In this piece I make one simple proposition: that the Oudekraal rule does not exist or, at least, that it does not exist as a single rule.

[6] The Oudekraal property has been the subject of some legally and historically significant litigation. The property, land in the Cape Peninsula, had been the subject of a township development rights grant to Oudekraal’s predecessor-in-title in 1957. In 1965, Oudekraal Estates (Pty) Ltd acquired the land and sought to exercise the development rights which were transferred to it upon its purchase of the land. In 1996, when Oudekraal submitted for approval its engineering services plan for the township, the Cape Metropolitan Council (as it was then) refused to approve the plan, arguing that no valid development rights existed over the land — they had lapsed.

[7] The relevant Ordinance in terms of which the development rights were first granted had prescribed several steps to be taken before the rights could be granted. First, an applicant had to obtain permission from the Administrator to establish the township; second, a general township plan had to be submitted to the Surveyor-General for approval; and third, the general township plan as approved by the Surveyor-General had to be lodged with and endorsed on the title deed by the Registrar of Deeds. All of these steps had to be concluded within a prescribed timeframe and the Administrator was empowered to extend the timeframes in each case. Oudekraal failed to meet the deadlines, but in each case, the Administrator had granted an extension of the compliance period. Crucially, these extensions were granted after the initial period set by the Ordinance had lapsed (what’s that they say about flogging a dead horse?).

[8] Aggrieved, Oudekraal headed to court. It sought an order declaring that its development rights over the property were extant and that it was entitled to exercise them. For Oudekraal, it did not matter whether or not the plan was lodged timeously, the fact was that it was and there were legal consequences that flowed from the mere fact that it was lodged with the relevant official at each stage. The high court dismissed the application. It said that the Administrator acted beyond the scope of his powers when he extended the extensions, given that the prescribed time period had already lapsed in terms of the Ordinance. The SCA found it unnecessary to go there. Instead, it chose to focus on whether the initial grant of development rights by the Administrator had been lawful. In this regard, it became apparent that the Administrator was not aware that on the land in question were graves and kramats which would be destroyed if the development of the township were to go ahead. The kramats were of particular spiritual importance to the Muslim community that lived on or adjacent to the property and, as the SCA reminded us, a township development would require the desecration of graves which is a criminal offence in our law. Instead, it appeared that the Administrator was either ignorant of the existence of the graves and kramats or was aware and acted in “criminal disregard” of that knowledge anyway. In any event, that could only mean that the Administrator’s permission to develop a township had been (and could only be) unlawful. And it was unlawful “at the outset”.

[9] Simple enough? Oh no no no. Wait a minute. What about the Surveyor-General who, on the strength of the Administrator’s permission, approved the general township plan? And the Registrar of Deeds who, on the strength of the Surveyor-General’s approval and the Administrator’s permission, endorsed the township development rights on the title deed? The SCA realised that thiswas where the real issue was. Indeed, it formulated the question it had to answer as: “what consequences follow from the conclusion that the Administrator acted unlawfully[?] Is the permission that was granted by the Administrator simply to be disregarded as if it had never existed? In other words, was the Cape Metropolitan Council entitled to disregard the Administrator’s approval and all its consequences merely because it believed that they were invalid provided that its belief was correct?”

[10] To understand properly the SCA’s reasoning, we have to understand its logical underpinnings. In his 1998 essay, “‘The Metaphysic of Nullity’ – Invalidity, Conceptual Reasoning and the Rule of Law”, Christopher Forsyth developed the ‘theory of the second actor’. His aim was to provide a theoretical framework to deal with the distinction between void and voidable administrative acts. While one is familiar with the phrase ‘null and void’, one may not necessarily know what that phrase means. An act is ‘null’ if it does not exist in law and an act is ‘void’ if the law cannot be used to enforce it. The phrase ‘null and void’ then simply means that the law cannot enforce acts whose existence it does not recognise. In private law, the distinction between void and voidable actions is easy to draw. If there is no consensus between two contracting parties on the merx and the consideration for the merx in a contract of sale, that contract does not exist in law and neither party can enforce it; it is null and void. But in administrative law, where an Act lays out a procedure in terms of which one public official acts after another has acted (and merely because the other has acted), the (legal) validity of those acts only ever becomes an issue later when a dispute arises.

[11] In terms of the theory of the second actor, if actor B is only able to exercise powers granted to her by a statute once the acts which the statute empowers actor A to take are in factual existence, a challenge to a consequentact performed by actor B must be determined with reference to actor B’s powers and the analysis cannot focus on the validity or otherwise of actor A’s acts. To use the Oudekraal example: the Surveyor-General could only approve the general township plan once Oudekraal was granted in fact permission by the Administrator; and the Registrar of Deeds could only endorse the development rights on the deed once the township plan was approved by the Surveyor-General. In this example, the Surveyor-General is the second actor. He exercised his powers lawfully. So did the Registrar. Both were not required in terms of the Ordinance to enquire into the validity of the actions of the official before them.

[12] Forsyth’s analysis was therefore concerned with the status of the acts consequent on an unlawful administrative act. To determine the validity of second acts, one had to enquire into whether the second actor had the necessary powers to act in terms of the relevant statute, and also, whether the validity of the first act was a precondition for the validity of the second act. As Forsyth explained, “it has been argued that unlawful administrative acts are void in law. But they clearly exist in fact and they often appear to be valid; and those unaware of their invalidity may take decisions and act on the assumption that these acts are valid. When this happens the validity of these later acts depends upon the legal powers of the second actor. The crucial issue to be determined is whether that second actor has legal power to act validly notwithstanding the invalidity of the first act. And it is determined by an analysis of the law against the background of the familiar proposition that an unlawful act is void.”

[13] The SCA readily adopted this reasoning, holding that “the proper enquiry in each case is not whether the initial act was valid but rather whether its substantive validity was a necessary precondition for the validity of consequent acts. If the validity of consequent acts is dependent on no more than the factual existence of the initial act then the consequent act will have legal effect for so long as the initial act is not set aside by a competent court.”

[14] It is here that we find the first statement of law in Oudekraal: “until the Administrator’s approval (and thus also the consequences of the approval) is set aside by a court in proceedings for judicial review it exists in fact and it has legal consequences that cannot simply be overlooked.” The SCA went on to say that our law had long recognised that “even an unlawful administrative act is capable of producing legally valid consequences for so long as the unlawful act is not set aside”. Does this mean that there is a general duty to comply with administrative acts that are unlawful for as long as they have not been set aside by a court? No. The SCA explained that “where the subject is sought to be coerced by a public authority into compliance with an unlawful administrative act … the subject may be entitled to ignore the unlawful act with impunity and justify his conduct by raising what has come to be known as a ‘defensive’ or a ‘collateral’ challenge to the validity of the administrative act.” This is the second statement of law in Oudekraal.

[15] So far I have identified two distinct but related rules arising from Oudekraal about how unlawful administrative acts are to be treated in law. Let us now turn to the fight about Oudekraal. The Constitutional Court (‘the court’) first had occasion to consider Oudekraal in Kirland which concerned an attempt by the Superintendent-General of health in the Eastern Cape to withdraw approvals granted to Kirland Investments to establish private hospitals on the grounds that they were granted improperly, under pressure from the MEC, by the Acting Superintendent-General while the Superintendent-General was on sick leave. Kirland challenged the withdrawal in the high court, arguing that the Superintendent-General was functus officio — he had no power to change his decision once he had made it. The department on the other hand argued that the initial approval was unlawful because it was granted on the instruction of the MEC, who had no right to interfere in the decision-making process and that the Superintendent-General was therefore entitled to withdraw that approval. The high court set aside all of the various decisions, all for being unlawful. Dissatisfied, the department appealed and Kirland cross-appealed the high court judgment.

[16] On appeal the SCA held that the Superintendent-General was functus officio and could not validly withdraw the approval and in relation to Kirland’s cross-appeal, it held that the initial approval was itself invalid because of the MEC’s interference. However, the SCA overturned the high court’s order setting aside the approval on the basis that the validity of the approval was not an issue before the high court and that the high court was thus not entitled to set it aside — the department had not taken the approval on review. This turned out to be a pretty big deal.

[17] The court by a majority of 7 judges held that the failure by the department to review the approval granted to Kirland amounted to a disregard of the approval, that it treated the impugned approval as a “non-decision”. The department’s attitude was that the unlawful approval did not exist. The majority disagreed. “That,” as Cameron J put it, “was a fundamental error.  For the decision does exist.  It continues to exist until, in due process, it is properly considered and set aside.” Setting aside the decision without a proper review would be unfair to Kirland, the majority said. The minority judgment, penned by Jafta J, disagreed. According to him, the validity of the approval was an issue squarely raised in the proceedings, Kirland and the department had fully canvassed legal argument on it and the court was under a duty to decide it.

[18] Cameron J when dealing with the department’s view that the unlawful approval was a “non-decision” since it did not exist in law, turned to Oudekraal. “The essential basis of Oudekraal was that invalid administrative action may not simply be ignored, but may be valid and effectual, and may continue to have legal consequences, until set aside by proper process,” he said. It appears to me that this is the genesis of the rule that an invalid administrative act may not simply be ignored but remains valid and in force until set aside by a court on review. Very well, but that is not one of the rules laid down in Oudekraal. I shall return to this.

[19] It was in Merafong where Jafta J laid out a comprehensive critique of Oudekraal as applied by the majority in Kirland. There, Merafong Local Municipality had levied a water surcharge for industrial use on AngloGold Ashanti which operated a mine in Merafong’s area of jurisdiction. Ashanti was aggrieved by this decision, which it appealed to the Minister of Water Affairs. The Minister, exercising an appellate power granted to her by the Water Services Act, overturned Merafong’s decision to levy the surcharge and directed Merafong to levy the surcharge only in respect of a portion of the water supply that was used by Ashanti for domestic purposes. Merafong obtained legal advice that the Minister’s decision was “void in law”. It contended that the power to determine water supply tariffs, including the levying of surcharges, was its exclusive constitutional domain as a municipality and that the Minister could not exercise any power over it. Merafong then threatened to stop Ashanti’s water supply unless it paid the surcharge. Ashanti went to the high court seeking to enforce the Minister’s decision against Merafong which, in turn, raised a defensive challenge to the Minister’s decision. It argued that it had “exclusive executive authority to set, adopt and implement tariffs on the provision of water services in its jurisdiction, including surcharges” and that the Act did not empower the Minister to interfere with the exercise of that authority and that, to the extent that it did, it was unconstitutional.

[20] The high court ruled in favour of Ashanti. It held that Ashanti had validly appealed to the Minister in terms of the Act which gave her the power to overturn Merafong’s decision. It was thus entitled to the relief the Minister granted it. It also held, relying on Oudekraal, that even if the Minister’s decision was invalid, Merafong was bound by it until it was set aside. Merafong appealed to the SCA. The SCA held, on the basis of Kirland, that Merafong was not entitled to ignore the Minister’s decision only to challenge its validity when it was called on to comply with it — Merafong had to approach a court and have it set aside on review. The SCA also held that Merafong could not raise the decision’s invalidity as a reactive challenge against the decision of another organ of state.

[21] The majority judgment in Merafong, again written by Cameron J, sought to clarify what Oudekraal, and subsequently Kirland, meant: “the import of Oudekraal and Kirland was that government cannot simply ignore an apparently binding ruling or decision on the basis that it is invalid.  The validity of the decision has to be tested in appropriate proceedings.  And the sole power to pronounce that the decision is defective, and therefore invalid, lies with the courts.  Government itself has no authority to invalidate or ignore the decision.  It remains legally effective until properly set aside.” The majority then proceeded to say all that Oudekraal did was “put a provisional brake on determining invalidity” and that until proper proceedings are instituted to set aside an invalid administrative act, “for rule of law reasons, the decision stands”.

[22] Jafta J in his dissent set out, in almost forensic detail, the incorrectness of Kirland in how it purported to apply the rule in Oudekraal. First, he stated that the principle which the high court and SCA (and endorsed by the majority in Merafong) sought to distill from Oudekraal and Kirland — that an invalid administrative act that exists in fact is binding and enforceable until set aside by a competent court — was at odds with the principle of legality. In particular, it turned established principles of our constitutional law on their heads. One of these is the doctrine of objective invalidity. In terms of that doctrine, all law and conduct that is inconsistent with the Constitution is invalid ab initio (from its inception). This, Jafta J says, flows directly from the supremacy of the Constitution. He explained that the principle of legality cannot countenance an invalid administrative act for the simple reason that “an illegal administrative act has no legal force and as such cannot be enforced.  […] although it may exist in fact, [it] does not exist in law and consequently it may not be enforced because it is not binding.  […] an administrative act derives its legal force from its validity.  Simply put an invalid act is unenforceable.”

[23] So the logical implication of the Merafong majority’s holding that Oudekraal puts a brake on “determining invalidity” is that there is a sort of validity penumbra where an unlawful administrative act exists and has legal effect before it is set aside, if ever. Not so for Jafta J in whose view any unlawful administrative act is invalid at the time it occurs. What follows later is merely a declaration, by a court, of itspreexisting invalidity. Jafta J later on discusses the role of courts and in particular the obligation placed on courts to declare law or conduct invalid to the extent it is inconsistent with the Constitution: the court does not itself invalidate the law or conduct; the Constitution invalidates it and the court merely declares it invalid. Courts therefore have no discretion to not issue a declaration of invalidity, they must issue a declaration where such invalidity exists. It would therefore be contrary to this constitutional obligation for a court to refuse to issue a declaration of invalidity for the sole reason that a decision was not properly reviewed and thereby require a party to comply with an unlawful decision.

[24] Turning more specifically to Oudekraal, Jafta J set out its holding: that “in the limited situation of consecutive administrative decisions and if the empowering provision requires, as a  pre-decision condition, that the first act be in existence for the second act to be made, the mere factual existence of the first act would be enough for the validity of the second act.” This is the first rule I identified. That the validity of the second act must be determined with reference to the powers of the second actor not the invalidity of the first act. But what is important and is often left out in discussions about Oudekraal is that if the initial act is set aside for its invalidity, the second act also falls away since its validity would depend on the factual existence of the initial act which would cease once it is set aside.

[25] Jafta J points out that the rule in Kirland which was a purported application of Oudekraal is much wider and antithetical to the principle of legality, suggesting that an unlawful administrative act will continue to exist in that “validity penumbra” I mentioned earlier and have legal effect for as long as it is not set aside. He asked, rhetorically, “how then can it be said that an illegal act becomes valid merely because public officials failed to have it set aside?” Kirland, in misconstruing the scope of the rule in Oudekraal, which only applies to the validity of consequent administrative acts, created a new rule with not much reasoning since it purported to be applying an existing rule.

[26] To illustrate just how untenable the rule in Kirland is, Jafta J took the unusual step of defending it and applying its logic to a set of facts to which the majority found inapplicable. In Genesis, Genesis Medical Scheme took the Registrar of Medical Schemes to court over his decision to reject Genesis’ annual financial statements. In terms of the Medical Schemes Act, the Registrar was empowered to prescribe the medium and form which the annual financial statements of medical schemes had to be in when submitted to him and could reject them if they did not conform to that prescribed medium and form. In addition, the Registrar could reject the annual financial statements of the scheme if they did not correctly reflect the financial position of the scheme. The Act also empowers a scheme to allocate some of a member’s monthly contributions to a savings account known as a personal medical savings account (‘PMSA’). The accounting treatment of PMSA funds was central to the dispute between Genesis and the Registrar. The Registrar’s reasons for rejecting Genesis’s financial statements were that: (1) they reflected PMSA funds as assets in Genesis’s balance sheet when the Act requires that they be reflected as liabilities, and (2) they understated Genesis’s liabilities by excluding the interest accrued by the PMSA funds.

[27] The Registrar’s reasons appear to have been informed by a judgment of the high court which dealt with the treatment of PMSA funds in the context of an insolvent scheme that was being liquidated. The high court in Omnihealth held that, in terms of another statute, PMSA funds constituted “trust property” and therefore did not fall into the insolvent estate of the scheme. For the Registrar this meant that schemes had to treat PMSA funds as trust property and therefore off-balance sheet. He issued circulars to this effect. Genesis challenged the rejection of their statements on the basis that it was influenced by an error of law. That error of law: Omnihealth. The high court agreed with Genesis and overturned Omnihealth. On appeal to the SCA, that court was split on the correctness of Omnihealth with the majority holding that PMSA funds had to be ring-fenced from creditors and thus treated as trust property, while the minority did not.

[28] Genesis’s ground of review was that the Registrar’s rejection was materially influenced by an error of law, i.e. Omnihealth. For the majority, Omnihealth was not a mere influence on the Registrar’s decision. It was the whole basis of the decision: “that decision was what caused, created and drove the rejection.  Omnihealth was effectively the be-all and end-all of the Registrar’s decision.  Without Omnihealth, the Registrar would not have taken it.  The parties would never have been at odds.  In lawyers’ language, Omnihealth was “material” to the disputed decision. And if Omnihealth was wrong, that means the Registrar’s decision was wrong then – and that it is wrong now.” The last line simply means that the Registrar’s decision was void ab initio, objectively invalid.

[29] For Jafta J, the issue was different. In exercising the power to prescribe the medium and form of a scheme’s annual financial statements, the Registrar had issued circulars which prescribed the treatment of PMSA funds in annual financial statements in light of Omnihealth and Genesis had not sought to have those circulars set aside. The Registrar did not derive the power to issue the circulars or the power to reject statements from Omnihealth but from the Act, so they were distinct and separate from Omnihealth. Importantly, Omnihealth had not been appealed and remained good law at the time that the Registrar issued the circulars. In Jafta J’s view, the Registrar committed no error and the circulars remained of binding legal effect.

[30] Contrary to the majority’s view that Omnihealth was the “be-all and end-all” of the Registrar’s decision and that once it was overruled his rejection of Genesis’ statements and the circulars in terms of which he did so automatically fell away, Jafta J regarded Omnihealth and the circulars to be two separate acts — one judicial and one administrative. On that approach and on the basis of Kirland, the circulars, even if invalid, “continue[d] to bind medical schemes until set aside on review”. It was so that Genesis’s annual financial statements were rejected because they did not comply with the form prescribed by the Registrar in the circulars and that could not be cured merely by overruling Omnihealth; the Registrar would actually be acting unlawfully if he accepted Genesis’s annual financial statements even though they did not comply with the form that he had prescribed.

[31] This, of course, is an untenable position to take and Jafta J knew that. He continued: “According to authorities like Tasima, Merafong and Kirland, even if these circulars were invalid for the reason that they were based on Omnihealth, they continued to be binding until set aside on review.  Their validity must be challenged in a formal application.  This is what Kirland proclaimed.  Therefore, there is no legal justification for deviating from the authorities mentioned here.  Unquestionably this Court is bound by its own decisions from which it can depart only if satisfied that they were clearly wrong.  To do otherwise would be a breach of the rule of law which forms part of the supreme law, the Constitution which this Court is duty-bound to uphold.  The proposition that the circulars tumble together with Omnihealth which is the mainstay of the first judgment on the validity of the circulars, is at odds with all of this.  No authority was cited for the proposition.”

[32] To drive this point home, Jafta J said: “The flaw that lies at the heart of the proposition that if Omnihealth tumbles, the circulars must tumble too is that it proceeds from the wrong assumption.  This is if Omnihealth was wrongly decided and the circulars were based on it, they too must be invalid.  But this does not mean that those circulars, invalid as they may be, evaporate into thin air.  They continue to exist at the level of fact until set aside on review.  And decisions of this Court tell us that invalid as they may be, for as long as they continue to exist as a matter of fact, the circulars are binding.  Overruling Omnihealth does not set aside the circulars but renders them invalid.  Therefore, the tumbling down mentioned in the first judgment does not extend beyond the question of invalidity.  It does not wipe the circulars into non existence.  Hence they remain binding until set aside on review.”

[33] Genesis when read with his earlier critique in Merafong, and all others I may have omitted here, constitutes an incisive and convincing critique of the rule in Kirland and highlights the danger of extending, without more, rules to cover factual situations which they were never intended to cover. A particularly important feature of Jafta J’s critique of Kirland is the primacy of statutory text in his analyses. Indeed, Forsyth himself emphasised that an analysis of the validity of acts performed by the second actor must focus on the powers granted to the second actor by the relevant law.

[34] It is arguable, for example, that the issue in Kirland — whether or not the Superintendent-General had the power to withdraw an unlawfully issued approval — was a classic case of functus officio that could be resolved by having recourse to the powers conferred on him by the relevant legislation. This is more so given the fact that Kirland did not concern a second actor scenario where Oudekraal would normally apply. The extension of the rule in Kirland had the unintended consequence of creating a logically unsustainable situation where an administrative act that is objectively invalid, for as long as it has not been set aside, continues to have legal effect. As the later Tasima cases show, the situation is worsened by the other procedural hurdles presented by Kirland in addition to the normal factors that courts have to take into account when deciding whether or not to allow the review, especially self-review by organs of state, of invalid administrative action; delay being one of them. This in contrast to the more preferable option of declaring invalid all administrative acts which are so, and regulating the consequences of such declarations in the way that courts do when exercising their just and equitable remedial jurisdiction to make sure that each party’s interests are treated justly and equitably.

[35] The failure to understand the origins of one of the rules in Oudekraal has led us to this point, where it is cited as authority for a legal proposition that goes against fundamental constitutional principles. As intimated at the beginning of this piece (if you can still remember anything from back then), the SCA recently decided that the Public Protector’s decisions were binding until set aside on the basis of Oudekraal —despite it not providing any justification for such a position. I have attempted to show that Jafta J’s jurisprudence on this point has exposed the fundamental misinterpretation of Oudekraal which led the court to create the rule in Kirland, without a rigorous defence of its own logical foundations.

[36] It does seem, however, that there has been a toenadering among members of the court and the fight is no longer as fierce as it used to be. Unfortunately, Jafta J seems to have fallen into a trap that Forsyth himself foresaw and rebuked. In Magnificent Mile, Jafta J in an attempt to clarify his objection to Kirland states that “we must acknowledge the principle that, just like laws, administrative actions are presumed to be valid until declared otherwise by a court of law.  What this means is that any person who disregards such law or action does so at his or her own peril should it turn out that the law or action is valid. But the presumption like all presumptions is rebuttable.”

[37] In a subsequent essay — “The legal effect of unlawful administrative acts: the theory of the second actor explained and developed” — Forsyth explained why a presumption of validity was not the answer to the so-called Oudekraal paradox (theoretically void but functionally voidable administrative acts). Such a presumption was unsatisfactory for Forsyth because:

  1. It was against the rule of law, in that it would allow, for example, a conviction to be based on an illegality unless and until it was set aside.

  2. It was authoritarian because it compelled ordinary citizens to always presume that officials’ conduct was valid.

  3. It undermined the ultra vires doctrine — which voids all conduct that falls outside the scope of conferred powers.

  4. It would endow the courts with a discretion as to the validity of the conduct complained of, when in truth, such invalidity is in fact objective.

[38] Whatever the shortcomings of his recent turn, Jafta J has contributed immensely to untangling this seemingly impossible rule and has managed to convince me that Kirland, at least, is a metaphysical failure to understand Oudekraal as such — to understand its “first causes”, to interrogate it on its own terms and to carefully define its outer and inner limits. A rule which does not confine itself to defined facts risks, as Kirland shows, finding application to an unenumerated number of factual scenarios, unknowable and unknown. That cannot be a rule of law.






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