NOTE TO CHAIRPERSON: PORTFOLIO COMMITTEE ON PUBLIC ENTERPRISES
FROM G HOON [PRINCIPAL STATE LAW ADVISER]
RE: CLAUSE 4 OF SOUTH AFRICAN AIRWAYS BILL [B35-2006]
1. In terms of clause 4 of the abovementioned Bill the Minister of Public Enterprises may convert South African Airways (Pty.) Ltd. into a public company after the company has been transferred to the State. The Bill does not prescribe any requirements that have to be met before such conversion can be effected. I have been requested to investigate whether or not the Bill can be amended to either create a framework indicating under which circumstances conversion would be allowed or to require approval by Parliament as a prerequisite for conversion.
2. In Fedsure Life
Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council 1988
(2) SA 374 (CC), in paragraphs 56 to 59, the Constitutional Court stated that
it "seems central to the conception of our constitutional order that the
legislature and executive in every sphere are constrained by the principle that
they may exercise no power and perform no function beyond that conferred upon
them by law". In terms of section 85(2) of the Constitution of the
3. I can find nothing in the Constitution or any other law preventing Parliament from creating a framework indicating under which circumstances conversion would be allowed or from requiring approval by Parliament as a prerequisite for conversion.
4. I you want me to draft something once you have settled `policy please let me know.