Cronin quotes the Second Executive Council Judgment case before the Constitutional Court, where the court’s position appeared to be that parliament simply cannot delegate its plenary function to make primary legislation.
There is scope for the delegation of secondary law-making powers to members of the executive, but in this regard the legislature must nevertheless jealously guard its exclusive legislative competence and can only justifiably delegate such secondary law-making powers within the context of clear legislative guidelines.
The “outright assignment” of the power to announce new tax rates in Section 5(2) of the Income Tax Act is therefore incompatible with the application of the Separation of Powers Doctrine envisaged by the Constitutional Court.
Cronin added that when parliament purported to delegate the power to determine and amend the income tax rate in terms of Section 5(2), it was attempting to assign a power that “exceeds the competence of Parliament itself”.
“The law-making process cannot be given effect to by mere fiat declarations and in its original or plenary form it certainty cannot be delegated away by Parliament,” he argued.
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