The LAC disallowed the Minister’s appeal and confirmed that placing the Wholesale and Retail Sector Education and Training Authority (W&RSETA) under administration ito s 15 of the Skills Development Act 97 of 1998 (SDA) was reviewable under the principle of legality. The Minister had not paid attention to the final management report of the Seta that indicated that 60% of the certain recommendations had been accepted while 40% were still in the process of implementation. Accordingly the Minister acted outside the powers of s15 of SDA and contrary to the principle of legality and the decision has to be set aside.
“Be that as it may, it is clear that, on the basis of the principle of legality, first appellant [the Minister] could only act strictly in terms of the powers entrusted to him under s15 of SDA. As has been held in numerous cases, the doctrine of legality is an incident of the rule of law which is one of the fundamental constitutional controls through which the exercise of public power is regulated by the Constitution of the Republic of South Africa 108 of 1996. It has been held consistently that no power or function can be exercised by the legislature or a member of the executive beyond that which had been conferred upon them by law. . . . .” [para 21]
Minister of Higher Education and Training v Saccawu (JA13/17)  ZALAC 27 ;  JOL 37915; (2017) ILJ 1967 (16 May 2017) per Davis JA (Waglay JP and Landman JA concurring)
Excerpts without footnotes
 On 28 September 2016, first appellant took a decision to instruct second appellant to appoint an administrator to take over and administer the affairs of the sixteenth respondent. The second appellant informed the Chairperson of the Accounting Authority of the Wholesale and Retail Sector Education and Training Authority, sixteenth respondent, of his decision in a letter of 28 September 2016. The decision was taken in terms of s15 of the Skills Development Act 97 of 1998 (“SDA”).
 The first to fourteenth respondents then brought an application to have first appellant’s decision reviewed and set aside. This application was successful and thus on 23 December 2016, the court a quo reviewed and set aside the decision of first appellant.
 The court a quo held that the decision taken by first appellant on 28 September 2016 constituted an administrative action as contemplated in the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”). The court went on to consider whether, in terms of s6(2)(f) of PAJA, the action taken by first appellant had been authorised by the empowering provision, namely s15 of SDA and was rationally connected to the purpose for which it was given.
The court answered this question in favour of the respondents, finding that
“the preconditions for the exercise of the Minister’s powers in terms of s 15 of SDA had not been met at the time the decision to place W&RSETA in administration was taken”.
Following upon this finding, the court ordered the reinstatement of the members of the board of sixteenth respondent and directed that the administration and control of the affairs of sixteenth respondent vest lawfully with its board.
 On 07 February 2017, the court granted an order in terms of s18 of the Superior Courts Act 10 of 2013 (Supreme Court Act), read with Rule 11(3) of the Labour Court Rules, directing that the operation and execution of the order granted on 23 December 2016 (‘the main order’) would come into operation immediately and be executable, pending the appeal launched by first appellant.
 Appellants also appealed this decision, contending that respondents had not met the test imposed by s18 of the Superior Courts Act for the granting of the order.
 This Court then directed that the automatic appeal against the s18 order and the main appeal be heard together at a consolidated hearing.
The factual background
 The core facts do not appear to be contested. Sixteenth respondent was established in 2000 and its period of establishment was extended on numerous occasions, the latest being on 06 October 2015 when it was re-established until 31 March 2018. The primary purpose of sixteenth respondent is to meet the skills and development needs of the wholesale and retail sector, having regard to the functions of the Sectorial Education and Training Authority (‘SETA’) as set out in s10 of the SDA. During 2016, first appellant addressed written instructions to sixteenth respondent, acting in terms of s14 A of the SDA, which provides as follows: . . . .
. . . . .
 Further correspondence was then exchanged between second appellant and sixteenth respondent’s attorneys in order to settle upon a mutually acceptable date for a meeting. However, sixteenth respondent’s request to meet at a mutually convenient date was ignored by first appellant and on 28 September 2016 he informed sixteenth respondent that he had decided to exercise his powers in terms of s15(1) of the SDA and place sixteenth respondent under administration and, further, that he had directed second appellant to take the necessary steps.
The basis for the review application
 First to fourteenth respondents raised three main grounds in support of their application to review the decision of first appellant of 28 September 2016, namely that
- the decision was contrary to ss3 and 6 of PAJA in that the preconditions established in terms of s15(a) to (e) of SDA had not been fulfilled when first appellant took his decision;
- the decision was irrational and unreasonable in that the drastic intervention contemplated by s15(1) of SDA constituted irrational and unreasonable action in a context where the sixteenth respondent had committed itself to fully cooperate with the appellants and
- finally, they raised the issue of procedural unfairness in the decision making process.
 As indicated in the introduction to this judgment, the court a quo found that the decision of the first appellant to direct second appellant to appoint an administrator constituted administrative action and thus fell within the scope of PAJA. The learned judge found further that, in terms of s6(2)(f) of the PAJA, the administrative action by first appellant had not been properly authorised by the empowering legislation and was not rationally connected to the purpose for which the power was given.
 Much of the debate, certainly as contained in the heads of argument of the parties respectively, turned on whether the impugned decision constituted administrative action.
 Given the approach that I proposed to adopt to this case, there is no need to come to a clear decision as to whether the action taken by appellants was administrative or executive action. Suffice to say that there is considerable merit in the analysis conducted by the court a quo. As Nugent JA said in Greys Marine Hout Bay (Pty) Ltd v Minister of Public Works (Greys Marine Hout Bay), the scope of the term administrative action eludes a comprehensive definition. It appears, however, from a number of cases that the courts have adopted the view that whether particular conduct constitutes administrative action depends primarily on the nature of the power exercised rather than upon the identity of the person who exercises the power. See President of the Republic of South Africa v South African Rugby Football Union 2000 (1) SA 1 (CC) at para 141.
 From this premise, it has been held that administrative action does not extend to the exercise of legislative powers by democratically elected legislative bodies, nor to the ordinary exercise of judicial power, to the formulation of policy or the initiation of legislation by the executive nor to the exercise of original powers conferred upon the President. See Greys Marine Hout Bay, supra at para 24 and the cases captured therein.
 On this basis, a sound foundation exists for the finding by the court a quo that the decision taken by first appellant in terms of s15 of the SDA did not represent action whereby first appellant developed policy or initiated legislation. He purported to act in terms of power derived exclusively from s15 of SDA, the content of which does not appear to fall into any definition of the implementation or conception of policy.
 Be that as it may, it is clear that, on the basis of the principle of legality, first appellant could only act strictly in terms of the powers entrusted to him under s15 of SDA. As has been held in numerous cases, the doctrine of legality is an incident of the rule of law which is one of the fundamental constitutional controls through which the exercise of public power is regulated by the Constitution of the Republic of South Africa 108 of 1996. It has been held consistently that no power or function can be exercised by the legislature or a member of the executive beyond that which had been conferred upon them by law. See Affordable Medicines Trust v Minister of Health 2006 (3) SA 247 (CC) at para 49 and the further authorities set out in footnote 40 and 41 thereof.
First appellant’s purported application of s 15(1) of SDA
 For this reason, the critical question is whether first appellant acted outside of the scope of s15 of SDA. This section provides as follows: . . . . .
‘. . . . .
 In substantiation of his decision to invoke powers in terms of s15, first appellant, in his answering affidavit, sought to justify his decision on sixteenth respondent’s failure to provide a satisfactory reason as to its withdrawal of financial support towards the RATERP, a lack of cohesion within the accounting authority, and the failure to submit a comprehensive plan to address the Auditor General’s qualifications for the financial year ending 31 March 2015. He also noted that sixteenth respondent had received another qualified audit opinion from the Auditor-General. First appellant then states in his answering affidavit that the listed circumstances in s15 are “only some of the basis upon which the Minister may act in terms of ss 14 and 15 of the SDA”.
 This affidavit has to be read with the critical letter of 28 September 2016, for it is in that letter that first appellant provided his reasons for invoking powers in terms of s15(1) of SDA.
 Appellants’ justification for invoking s15(1) of SDA was narrowed further. When the notice of application for leave to appeal was filed on 26 January 2017, the appellants reduced their primary arguments to the contention that there was irregular expenditure and poor governance and further that there had been mismanagement of finances as was evident from the Auditor General’s reports of 2014/15 and 2015/16.
 It is to these specific grounds raised by appellants to which I must turn. The first argument regarding, poor governance, hardly appears in any specific detail in the letter of 28 September 2016, save for copious references to the report of the Auditor General.
 Presumably, the reference to the failure to deal with the Auditor-General’s qualifications were invoked in order to contend that s15(1)(b) was of application, namely that there was a mismanagement of sixteenth respondent’s finances.
 The material paragraphs in the Auditor General’s report for the financial year 2014/15 read thus: . . . .
. . . . .
 What is clear from these reports is that sixteenth respondent received qualified audits in both financial years. However, the qualifications were very limited in their scope relating as they did to discretionary grant commitments. They cannot fairly be employed to justify the conclusion that there was the kind of widespread financial mismanagement which would explain satisfactorily the drastic assumption of powers in terms of s15 (1) of SDA.
 In addition, in the letter of 26 August 2016, sixteenth respondent’s attorneys made clear that “comprehensive remedial steps had been taken to address the Qualified Opinion in the 2015 DG reports. Considerable success has been achieved through these remedial steps. The Qualified Opinion in the 2016 draft AG Report results from matters that could not be completely resolved by the period ending 31 March 2016. The aforesaid is not an indicator of, inter alia, bad management or governance on the part of the Board”.
 A significant part of the first appellant’s letter of 28 September 2016 dealt with the question of withdrawal from the RATERP. Sixteenth respondent’s attorneys provided a detailed explanation as to the approach adopted by its client to RATERP. In the letter of 26 August 2016, the following appears: . . . . .
. . . . .
 In summary, neither in the letter generated by first appellant of 28 September 2016 nor in his answering affidavit is there any indication as to why sixteenth respondent’s explanation as to its conduct regarding the funding of the RATERP was not only disregarded but why there was a sufficient evidential basis in respect of RATERP for the powers under s15(1) to be justified in the circumstances.
 On the evidence presented, first appellant acted outside of the powers conferred upon him in terms of s15 of SDA. He failed to show that the necessary preconditions set out in s15(1) existed in order to place sixteenth respondent under administration. Accordingly, having acted outside the powers conferred upon him in terms of s15 of the SDA, he acted contrary to the principle of legality and his decision stands to be set aside.
 For all of these reasons I agree entirely with the conclusion reached by the court a quo that “the preconditions for the exercise of the Ministers powers in terms of s 15 of the SDA had not been met at the time the decision to place W&RSETA under administration was taken. The W&RSETA head at the relevant time demonstrated its capacity to address any administrative shortcomings and none of them either singularly or collectively constituted grounds that met the threshold requirements impose by s 15 for the exercises of his powers under that section”. The conclusion illustrates that by acting outside of the powers set out clearly in s15 of SDA, appellants had acted outside of the principle of legality. As Chaskalson P (as he then was) said in Pharmaceutical Manufacturers Association of South Africa: In Re Ex parte President of the Republic of South Africa:
‘It is a requirement of the rule of law that the exercise of public power by the Executive and other functionaries should not be arbitrary. Decisions must be rationally related to the purpose for which the power was given, otherwise they are in effect arbitrary and inconsistent with this requirement. It follows that in order to pass constitutional scrutiny the exercise of public power by the Executive and other functionaries must, at least, comply with this requirement. If it does not, it falls short of the standards demanded by our Constitution for such action.’ [Footnote omitted]
The decision of first appellant of 28 September 2016 fails this test and thus must be set aside.