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 DISTRIBUTED BY VERITAS e-mail: veritas@mango.zw; website: www.veritaszim.net Veritas makes every effort to ensure the provision of reliable information, but cannot take legal responsibility for information supplied. 15