JAFTA J
President to dismiss such head if circumstances warranted a dismissal.198 The power to
appoint is expressly conferred on the President but the power to dismiss is not. This
Court held that the power to dismiss was implied because it was necessary for the
exercise of the power to appoint. Of importance to note is the fact that both powers,
express and implied, must vest in the same functionary.
[183] It cannot be correct to suggest that without the Minister’s power to designate, the
designated Judge will not be able to exercise powers conferred on him or her by
sections 16 to 18 of RICA, and therefore the Minister’s power to designate is implied.
This is because the power that is said to be implied is not necessary for the Minister to
exercise any powers under sections 16 to 18 of RICA. But it is an antecedent power
necessary for the lawful exercise of powers conferred upon the designated Judge, in
terms of those sections.
[184] In other words, the express powers conferred upon the designated Judge do not
constitute explicit powers in which the Minister’s power is implied. On the contrary,
the powers of the designated Judge and those of the Minister amount to different powers
conferred on different functionaries and must be exercised at different stages in order
to attain the objectives of RICA.
[185] The Minister’s power to designate cannot be said to constitute an implied power
under section 1 of RICA.
This is so because that section does not confer an
express power. There can be no question of an expressly authorised power including
“the power to do that which is necessary to give effect to the power expressly given”.
There can be no implied power without the expressly conferred power. Thus in
Matatiele Municipality, the power to change municipal boundaries was taken to be a
part of the explicitly conferred power to alter provincial boundaries. In Masetlha too,
198
Section 209(2) of the Constitution provides:
“The President as head of the national executive must appoint a woman or a man as head of
each intelligence service established in terms of subsection (1), and must either assume political
responsibility for the control and direction of any of those services, or designate a member of
the Cabinet to assume that responsibility.”
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