JAFTA J
[179] In Matatiele Municipality,193 this Court formulated the principle in these words:
“It is trite that the power to do that which is expressly authorised includes the power to
do that which is necessary to give effect to the power expressly given. The power of
Parliament to redraw provincial boundaries therefore includes the power that is
reasonably necessary for the exercise of its power to alter provincial boundaries.”194
[180] What is clear from these authorities is that for a power to be implied, there must
be an express power in which it is implied. This means there can be no implied power
without an express power. The explicit power must of necessity include the implied
power. And power is implied if it is necessary to give effect to the exercise of the
explicit power.
Matatiele Municipality qualified the statement approved by
GNH Office Automation by leaving out “ancillary or incidental” to the express power.
Necessity appears to be the only standard for determining whether power is implied.195
[181] Consistent with this principle, this Court in Masetlha196 held:
“The power to dismiss is necessary in order to exercise the power to appoint. . . .
Without the competence to dismiss, the President would not be able to remove the head
of the Agency without his or her consent before the end of the term of office, whatever
the circumstances might be. That would indeed lead to an absurdity and severely
undermine the constitutional pursuit of the security of this country and its people. That
is why the power to dismiss is an essential corollary of the power to appoint and the
power to dismiss must be read into s 209(2) of the Constitution.”197
[182] In Masetlha, section 209(2) of the Constitution conferred upon the President the
power to appoint the head of the Intelligence Agency without expressly authorising the
193
Matatiele Municipality above n 86.
194
Id at para 50.
195
Lekhari v Johannesburg City Council 1956 (1) SA 552 (A) at 567B.
196
Masetlha above n 97.
197
Id at para 68.
89
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