Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council

The Constitutional Court held that the exercise of all public power must be authorised by law and subject to constitutional control. The decision established that even though the interim Constitution did not contain an express legality principle, it was implicit in the constitutional framework and binding on all organs of state, including local government.

The Greater Johannesburg Transitional Metropolitan Council adopted levies on metropolitan and local councils within its jurisdiction without express legislative authorisation. Fedsure Life Assurance and other applicants challenged the validity of these levies, arguing they were imposed without lawful authority. The levies were imposed to fund the transitional council's operational expenses.

Whether the transitional metropolitan council had the legal authority to impose levies on constituent councils in the absence of express statutory authorisation, and whether such exercise of public power was subject to judicial review under the interim Constitution.

The Court held that the levies were unlawful because they were not authorised by law. It further held that the rule of law and principle of legality require that all exercises of public power be authorised by law and are subject to review for constitutional compliance.

The principle of legality is a foundational constitutional principle requiring that all public power, whether executive or legislative in nature, must have a source in law and be exercised in accordance with law and the Constitution.

The Court reasoned that the rule of law, inherent in the constitutional framework, mandates that public bodies may only exercise powers lawfully conferred upon them. The absence of express statutory authority meant the levies were ultra vires. The Court also confirmed that while administrative action under PAJA had not yet been enacted, the Constitution itself provides for review of public power on legality grounds.

The Court made observations regarding the relationship between the principle of legality and administrative law remedies, foreshadowing the later development of legality review as distinct from administrative law review under PAJA.

This is the foundational case establishing the legality principle in South African constitutional law. It is essential for understanding judicial review of public power and remains central to administrative and constitutional law courses, particularly in distinguishing legality review from rationality and procedural fairness review.

Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council 1999 (1) SA 374 (CC) [1998] ZACC 17