A Supreme Court of Appeal judgement in May now ensures that the nearly one million tyres consumed monthly in South Africa will, as a result of the approval of the implementation of the REDISA Plan, now be recycled effectively and productively. New jobs and industries will be developed. The Plan has been praised by international experts as best practice, and may form the blueprint for future recycling plans in other waste streams.

The judges also took the opportunity to clarify the application of the doctrine of functus officio in relation to administrative decision making. Since this doctrine affects the lives of each and every citizen, the judgement is worth discussing.

Functus Officio is the principle in terms of which decisions of officials are deemed to be final and binding once they are made. They cannot, once made, be revoked by the decision maker. Both the granter and receiver of rights know where they stand. The doctrine supports fairness and certainty. A simple example would be the granting of a fishing license against payment of the required fee - the right to fish endures for as long as the permit endures. The official who has granted the license has discharged her office, and is functus.

But the doctrine does not apply to all administrative decisions. It applies only to decisions which have the following qualities:

• The decision must be final
• Rights or benefits must have been granted

Such decisions can be revoked if the empowering legislation provides for it (subject to procedural fairness and the protection of entrenched rights).

But, as the case clarified, the doctrine does not apply to the amendment or repeal of subordinate legislation.

In this case a plan was withdrawn and a new plan was published in its place, with the removal of an offending portion. The Appellants argued that the Minister could not do this – the court found that she could.

Why should subordinate legislation be excluded from the doctrine of functus officio? Firstly, at common law a person empowered to make legislation has the power to amend or repeal it. Secondly, in South Africa, the Interpretation Act expressly provides that a body having a power to make rules, regulations or by-laws has the power to revoke, vary or amend the same rules.

And what is subordinate legislation as distinct to other forms of administrative action by officials? Once more, regard must be had to the characteristics of the administrative action to determine this distinction. As the legal academic Hoexter points out, subordinate legislation has the following qualities:

• It is general in its application, applying to society as a whole, or groups within it, rather than individuals within society
• It is concerned with the implementation of policies , rather than the resolution of individual disputes
• It usually remains in force indefinitely and continuously (but may be designed to last for a specific period)
• Usually it  requires specific promulgation in the government gazette before it is effective
• Often  it may require the enforcement of a sanction before it has legal force

If administrative action has most or all of these qualities it is subordinate legislation, and therefore is not subject to the functus doctrine. The REDISA Plan has most of these qualities, and accordingly the Minister could amend or repeal it, and re-publish it in an amended form.

The case is therefore significant since it clarifies the distinction between subordinated legislation, which is not subject to the doctrine of functus officio, and other forms of administrative action which are so subject.  This will govern the conduct and expectations of both the authorities, who exercise powers, and ordinary citizens subject to such powers, henceforth.

Cliffe Dekker Hofmeyr acted for REDISA in this matter.

Written by Richard Marcus, Director, Dispute Resolution, Cliffe Dekker Hofmeyr