66 as i see it the case raises the following issues

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[66] As I see it, the case raises the following issues: first, whether the doctrine of legality applies to the powers exercised by the Micro Finance Regulatory Council (the Council); second, whether the Exemption Notice 1 contains a delegation of power to the Council; and third, if it does, whether that delegation is lawful. Finally, if the Notice does contain a permissible delegation, the question is whether any of the rules made by the Council exceed the ambit of the delegation. Mootness [67] I agree with my two colleagues that the matter before the Court is moot but that, because of the importance of the principles involved, it is nonetheless in the interests of justice to grant leave to appeal. I have nothing to add to their comprehensive consideration of the issue. Legality [68] This is a matter of the application of the rule of law and the principle of legality which flows from the value of the rule of law enshrined in section 1 of the Constitution. This Court has held that “[t]he exercise of all public power must comply 1 Government Gazette 20145 GN 713, 1 June 1999. 44
LANGA CJ with the Constitution, which is the supreme law, and the doctrine of legality, which is part of that law.” 2 The doctrine of legality, which requires that power should have a source in law, is applicable whenever public power is exercised. Private power, although subject to the law and in certain circumstances the Bill of Rights, does not derive its authority or force from law and need not find a source in law. Public power on the other hand can only be validly exercised if it is clearly sourced in law. [69] What has to be determined firstly is whether the Council exercised a public power when making the rules. In this regard I agree fully and have nothing to add to the position taken by both Yacoob J 3 and O’Regan J 4 that the rules are an exercise of public power. [70] Moving on from this premise, both the High Court and the applicant argue that this public power is also legislative in nature and that this alone constitutes a separate ground for setting the rules aside as legislative powers may only be exercised by Parliament. However, as noted in the judgment of O’Regan J, legislative powers may be, and often are delegated. 5 It is clear that the mere characterisation of a power as legislative does not automatically render it unlawful for anybody else but the legislature to exercise it. However, as will appear below, the nature of the power, 2 Per Chaskalson P in Pharmaceutical Manufacturers Association of South Africa and Another: In re Ex Parte President of the Republic of South Africa and Others 2000 (2) SA 674 (CC); 2000 (3) BCLR 241 (CC) at para 20. See also Fedsure Life Assurance Limited and Others v Greater Johannesburg Transitional Metropolitan Council and Others 1999 (1) SA 374 (CC); 1998 (12) BCLR 1458 (CC) at paras 40 and 56.

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