The scope and limits of the exercise of a public power

The Supreme Court of Appeal held that a public authority may not exercise powers which are not given to it by the express wording of its empowering statute.

The relevant empowering provision in the Medical Schemes Act gives the Registrar the power to decide whether a medical scheme’s proposed name is likely to mislead the public. It does not give the Registrar the power to impose conditions. The power of an organ of state to do something does not imply a wide discretion outside the empowering provision. The Registrar cannot add conditions unless empowered to do so and certainly cannot do anything he or she is prohibited from doing.

In this case, the requirement to be ‘satisfied as to something’ (that the name would be misleading) meant that, once satisfied, the Registrar has to approve or not approve the request for a name change – it does not imply any wider discretion. Once the Registrar had correctly found the likelihood to mislead existed, the name change had to be rejected. The court therefore held that the Appeal Board’s order incorrectly compelled the Registrar to do something he was not empowered to do, namely to approve the name change subject to conditions.

The court also held that a public authority/organ of state can bring a review in the public interest under the Promotion of Administrative Justice Act (PAJA). The review had been brought in the public interest by the Registrar. Where this happens, the organ of state steps into the shoes of the members of the public to secure administrative justice in the public interest.

An organ of state cannot apply to review its own decisions in terms of PAJA but can review the decision of another organ of state under PAJA. Though the Intergovernmental Relations Framework Act requires organs of state to manage disputes between one another without going to court, where the matter is reviewable in terms of PAJA or under the principle of legality, an organ of state will have to bring a review before the courts to set aside an unjust decision.

The case is Compcare Wellness Medical Scheme v Registrar of Medical Schemes and Others.