Constitution Watch 8/2019
Can Statutory Instruments Amend
Acts of Parliament?
19 October 2019
CONSTITUTION WATCH 8/2019
[19th October 2019]
Can Statutory Instruments Amend Acts of Parliament?
Introduction
Several Acts of Parliament contain provisions permitting the President or a
Minister to make statutory instruments ‒ regulations, orders and so on ‒ which
amend the Acts themselves. For example:
• The Schedule to the Land Acquisition Act sets out principles which must be
followed in assessing compensation to be paid for farms compulsorily
acquired by the State. Section 50 of the Act states that the Minister of Lands
may by statutory instrument amend the Schedule by adding, altering or
deleting any of the principles.
• The Transfer of Offenders Act has a schedule listing countries to which
convicted offenders may be sent to serve out their sentences. Section 3 of
the Act states that the Minister of Justice may by statutory instrument amend
the Schedule in order to add further countries to the Schedule or to delete
countries from it.
• The Schedule to the Administrative Justice Act lists administrative decisions
and actions which cannot be challenged under the Act. Section 11(6) of the
Act gives the Minister of Justice power to make statutory instruments adding
items to or deleting them from the Schedule.
• And section 3 of the Finance Act ‒ the Act which sets the rates of income
tax and many other taxes ‒ gives the Minister of Finance power to make
regulations amending the rate of any tax that is levied under the Act.
It was this last provision ‒ section 3 of the Finance Act ‒ that came under
scrutiny in a recent case, Mlilo v Minister of Finance & Economic Planning HH605-2019. The background to the case was that the Minister had used his
power under section 3 of the Finance Act to publish regulations [SI 205 of 2018]
which amended various provisions of the Act in order to raise the intermediated
money transfer tax [IMT tax] to 2 per cent. Mr Justice Zhou ruled that both
section 3 of the Act and the Minister’s regulations were unconstitutional. The
full judgment can be accessed on the Veritas website [link].
Summary of the Mlilo Case
The Minister’s argument in Mlilo’s case was that SI 205/2018 was specifically
authorised by section 3 of the Finance Act, which not only confers regulationmaking powers on the Minister but goes on to expand those powers by
explicitly providing that:
• such regulations "may amend or replace any rate any of any tax, duty, levy
or charge or duty that is charged or levied in terms of any Chapter of this