Executive Authority: Reviewing the President's Actions

Review of actions by the President or cabinet is a legal process when individuals feel wronged by decisions or actions.
Public dissatisfaction can lead to challenging the constitutionality of these actions in court.

Two main avenues for legal challenges:
1. Testing against the Bill of Rights.
2. Testing against the principle of legality.
A third possibility exists related to administrative law, but is outside the scope of this course.

The Bill of Rights outlines fundamental human rights.
When an action appears to infringe on these rights, individuals can challenge it in court.
Example Case: President of South Africa vs. Yuhu
- Context: President Mandela pardoned prisoners, focusing on children, mothers with minors, and disabled individuals.
- Pardons excluded those charged with serious offenses.
- Applicant: Hugo, a father of a minor, argued that his exclusion from the pardon was discriminatory based on gender, violating his right to equality under Section 9 of the constitution.
- Court ruled against Hugo, confirming the action was not unfair discrimination.

Principle of legality asserts that executive actions must be lawful and rational.

Actions must be authorized by legislation or constitutional provisions.
Authorized persons must make decisions independently, without delegation.
- Relevant Case: SAFU decision emphasized that decision-makers must apply their own minds.
Recent Case Example: State Capture Inquiry
- President consulted legal advisers before appointing a commission, demonstrating lawful decision-making.

Actions must be rational, showing a clear link between the action undertaken and its purpose.
- Example Analysis: Hugo’s pardon action
- Action: Pardoning mothers and children.
- Purpose: Compassion and promoting children's wellbeing.
- Verdict: The purpose was linked effectively to the President's action, making it rational.
Rationality Test Example: Grounding a child for a year for not putting away a plate, while the action is internally linked to punishing misbehavior, is extreme but rational.
Inconsistencies in executive decisions can lead to irrationality.
- Example: COVID regulations scrutinized for irrationality—visiting dying relatives versus attending funerals

Case: In De Beer Matter and Fair Trade Independent Tobacco Association vs. President
- Regulations were challenged both for rationality and potential violations of rights.
- Findings: Some regulations were deemed irrational. For instance: no visits for the ill while allowing funerals was seen as inconsistent.
- Smoking ban was challenged, with evidence breaking the causal link between the ban and its purported health benefits, revealing a lack of rational decision-making.

Administrative Law: Not detailed due to complexity, focuses on lawful, reasonable, and fair actions.
- Less frequently used against Presidents due to the nature of actions being non-administrative.

Challenging presidential actions involves understanding the Bill of Rights and the principle of legality.
The two primary modes of review—based on rights or legality—provide structured avenues for accountability in executive decisions.
Awareness of case law helps in analyzing the nuances of legality and rationality in the context of executive actions.
Understanding these review methods allows individuals to seek justice and challenge unlawful governmental actions effectively.