Judgment No. SC 54/2018
Case No. SC 228/14
The learned author also affirms, at pp. 144-145, that the courts have the
power to sever a provision which is ultra vires from the rest of the instrument or to set
aside and disregard the invalid part, leaving the rest intact, unless the former is inextricably
interconnected with the valid part. However, this does not necessarily entail “judicial
surgery or textual emendation by excision”. He accordingly concludes, at p. 145:
“…. the judicial process involved is not truly ‘severance’ but ‘modification’. The
court has the power to modify the wording of an item of delegated legislation so as
to leave it without any ultra vires effect. The only limit on the power is that it cannot
be used to produce an instrument the overall effect of which the delegate, if made
aware of the ultra vires point at the time of making the instrument, would or might
not have approved.”
Insofar as concerns the exercise of any power or discretion conferred by any
enactment, it is axiomatic that the functionary invested with the power to act or decide
must comply with such rules of natural justice as are appropriate to the function to be
performed as well as the time and circumstance in question. The two basic requirements in
this regard enjoin the functionary concerned to decide without bias and to allow
representations to be made before the decision is reached or any consequential action is
taken. These basic tenets, as derived from the common law and embodied in the maxims
nemo debet esse judex in sua aut propria causa and audi alteram partem, are now codified
in s 3 of the Administrative Justice Act [Chapter 10:28] and reaffirmed in s 68 of the
Constitution.
Whether Bye-laws are Ultra Vires the Enabling Act
As I have indicated earlier, the court a quo found clause 8(a) of the standard
form contract (scheduled to the 1913 Bye-laws) to be ultra vires para 69(2)(e) of the Third
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