explain in simplerr terms Illegality

Question

In the Lord Diplock’s words, this ground means that the decision maker “must understand correctly the law that regulates his decision-making power and must give effect to it. Decision may be illegal for many different reasons. There are no hard and fast rules for their classification, but the most common example of cases where the courts hold administrative decisions to be unlawful are the following:
i. The decision is made by the wrong person (unlawful sub-delegation).
If the law empowers a particular authority, e.g. a Minister to make certain decisions, the Minister cannot sub delegate this power to another authority, e.g. an executive officer or a committee. This differs from a routine job not involving much discretion being done by civil servants in the minister’s name, which is not considered delegation. An example of when this happened was in the English case of Allingham v Minister of Agriculture and fisheries where a notice preventing farmers from growing sugar beet was unlawful because the power to put up the sign was delegated by the original committee.
In Zambian case of Rev Lameck Kausa v the Registrar of Societies,43 the applicant, applied for an order of certiorari on behalf of the African National Church. The application was to quash the decision of the assistant Registrar of Societies wherein he had refused to register the church and had rescinded its exemption from registration. The applicant alleged that the orders where null and void as the Assistant Registrar had no jurisdiction or power to issue the orders and consequently were not made by a proper authority. The respondent contended that the real powers in the matters are either the Permanent Secretary or the Minister of Home Affairs.
The court held among others that the judicial functions imposed on the Registrar of Societies must be performed by him personally and cannot be carried out through subordinate officers.
43 (1977) ZR 195.
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In short, the court held that the decision of the Assistant Registrar of Societies was illegal as it was made by the wrong person.
ii. Jurisdiction: error of law or error of fact
The court will quash a decision where the authority has misunderstood a legal term or incorrectly evaluated a fact that is essential for deciding whether or not it has certain powers. In R v Secretary of State for Home Department, ex part Khawaja,44 the House of Lord held that the question whether the applicant were “illegal immigrants” was a question of fact that had to be positively proved by the Home secretary before he could use the power to expel them. The power depended on them being “illegal immigrants” and any error in relation to that fact took the Home Secretary outside his jurisdiction to expel them.
However, where a term to be evaluated by the authority is so broad and vague that reasonable people may reasonably disagree about its meaning, it is generally for the authority to evaluate its meaning. For example, R v Hillington Borough Council ex parte Pulhofer45, the local authority had to provide homeless persons with accommodation. The applicants were a married couple who lived with their two children in one room and applied to the local authority for aid. The local authority refused aid because it considered that the pulhofers’ were not homeless and the House of Lords upheld this decision because whether the applicant had accommodation was a question of fact for the authority to determine.
iii. The decision maker went beyond their power: ultra vires
The classic example of this is the case of Attorney General v Fulham Corporation (1921), where Fulham Council had the power to set up wash-houses for those without the facilities. They decided to charge people to use it. The court held that they went beyond their power by trying to benefit commercially from selling something that was supposed to be for everyone.
Another example of this is the case of R v Secretary of State for Foreign Affairs ex parte the World Development Movement. In this case, section 1 of the Overseas Development and Co-operation Act 1980 empowered the Secretary of State for Foreign Affairs to assign funds for development aid of economically sound projects. The Secretary assigned the Pergua River in
44 (1984) AC 74
45 (1986) AC 484
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Malaysia which was considered as uneconomic and not sound. The House of Lords held that this was not the purpose envisaged by the enabling statute and the minister therefore exceeded his powers.
See also the case of Chishimba Kambwili v the Attorney General,46in this case, the Constitutional Court of Zambia ruled that the Speaker went beyond his powers in declaring the applicant’s seat in the National Assembly as vacant. This was also the case in Geoffrey Bwalya Mwamba v The Attorney General, 47in which the High Court of Zambia ruled that the Speaker’s decision to declare the applicant’s seat vacant, was in excess of the Speaker’s jurisdiction.
iv. Ignoring relevant considerations or taking irrelevant considerations into account.
This ground is closely connected to illegality as a result of powers being used for the wrong purpose, for example in Wheeler v Leicester City Council, where the city council banned a rugby club from using its ground because three of the club’s members intended to go on a tour in south Africa at the time of apartheid. In R v Somerset County Council ex parte Fewings the local authority decided to ban stag hunting on the grounds of it being immoral. In Padfield v Ministry of Agriculture, Fisheries and Food, the Minister refused to mount an inquiry into a certain matter because he was afraid of bad publicity.
In the Zambia case of Chilufya v City Council of Kitwe48 the City Council of Kitwe terminated Chilufya’s trading licence to occupy a market stall by resolution influenced by political considerations as Chilufya was believed to be a supporter of the African National Congress (ANC) rather than UNIP. The high court held that a city council which terminates a trader’s licence to occupy a market stall by resolution influenced by political consideration is acting unreasonable, unfairly and contrary to the principles of natural justice therefore, ultra vires.
v. Fettering discretion
An authority will be acting unreasonably where it refuses to hear applications or makes certain decisions without taking individual circumstances into account by reference to a certain policy. When an authority is given discretion, it cannot bind itself as to the way in which this discretion will be exercised either by internal policies or obligations to others. Even though an authority
46 2019/CCZ 009
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48 (1967) Z.R 115 (H.C)
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may establish internal guidelines, it should be prepared to make exceptions on the basis of every individual case.

Answer 1

Illegality in Decision-Making

When a decision-maker (like a government official or an organization) makes a decision that is illegal, it means they didn’t properly follow the law. Lord Diplock described this as needing to understand and apply the law correctly. Here are some common ways in which decisions can be found to be illegal:

1. Wrong Person Making the Decision: If a law says that only a certain person or group (like a minister) can make a decision, then that person cannot pass on that decision-making authority to someone else (like a committee or another official). For example, in a case in England, a committee was prevented from growing crops because a higher authority wrongly delegated their power. In a Zambian case, a local registrar tried to refuse a church’s registration, but the court found that this registrar didn’t have the authority to make that decision, so it was illegal.

2. Mistake in Law or Fact: Sometimes, a decision can be overturned if the person making it misunderstands a legal point or gets a key fact wrong. For example, if a government official declares someone an “illegal immigrant” without proof, then they can’t use their power to expel that person because their claim is based on a mistake. In another case, a local council correctly evaluated a couple's housing situation, and the court supported their decision because it was based on proper facts.

3. Going Beyond Power (Ultra Vires): This refers to making a decision that is outside the legal limits of the authority’s power. For instance, a council was sued for charging people to use a public wash-house, which was not allowed because it was supposed to be freely available. Another example is where a minister wrongly allocated funds for a project that didn’t meet the necessary criteria, which meant they acted beyond their legal authority.

4. Considering Irrelevant Factors: Decision-makers are not allowed to base their decisions on unrelated or improper reasons. For example, if a council refused to let a sports team use a field because of members’ political views, or if a minister ignored a legitimate request because he was worried about bad publicity, these decisions could be struck down as illegal. In a Zambian case, a city council tried to terminate a trader’s license based on political bias, which the court ruled as unfair and unlawful.

5. Fettering Discretion: If a decision-maker refuses to consider individual circumstances or makes decisions strictly according to set policies without room for flexibility, they could be acting unreasonably. For instance, if authorities have guidelines but don’t allow exceptions based on unique cases, they could be seen as misusing their discretion.

In essence, illegality in administrative decisions involves failing to follow the law correctly, making decisions without authority, misunderstanding important facts, or ignoring relevant information.