The committee decided. The Council noted. Nobody approved.

Two minutes from the same meeting cycle. A subcommittee “approves” something its terms of reference only allow it to recommend. A Council “notes” a chairperson’s report whose recommendations needed its approval. Management then implements both. In each case the organisation is acting on a decision that nobody had the power to take, and in each case the file shows it.

I have seen both habits in bodies that are otherwise well run. They are not bad faith. They are what happens when the words in the minutes drift away from the powers in the instruments, and nobody reads the two side by side.

One · Where a committee’s power comes from

A statutory body is a creature of its Act. The Constitutional Court put the principle of legality in one sentence in Fedsure in 1998: the legislature and executive “may exercise no power and perform no function beyond that conferred upon them by law”. A committee of that body is one step further down. It has no powers of its own at all. Whatever it may do comes from three places: the founding Act, the terms of reference the Council gave it, and any delegation the Council has made in writing. If a power is in none of the three, the committee does not have it, however long it has been exercising it.

Some powers cannot be handed down at all. A municipal council may not delegate the passing of by-laws, the approval of budgets, the imposition of rates and the raising of loans (section 160(2) of the Constitution), and under section 59(2)(a) of the Municipal Systems Act every delegation it does make must be in writing. Most founding Acts of councils and regulators reserve a similar core for the Council itself.

Companies run the other way, which is worth knowing if you sit on both kinds of body. Under section 72(2)(c) of the Companies Act a board committee has the full authority of the board on a matter referred to it, unless the Memorandum of Incorporation or the resolution establishing it provides otherwise. For a company the terms of reference are where the board takes authority back; for a statutory body they are where the Council hands it out. Either way, a committee whose terms of reference say “considers and recommends to Council” may recommend. That is the whole of its power on that matter.

Two · What a committee’s “decision” actually is

When a recommendatory committee resolves to approve an appointment, award a contract or instruct management, the law does not treat that as a decision of the organisation. In substance it is a recommendation that has not yet reached the body entitled to decide, whatever the minute calls it.

If someone acts on it, the consequences arrive in stages.

It is reviewable. Where the decision is administrative action, PAJA allows review because the administrator “was not authorised to do so by the empowering provision”, or acted under a delegation the empowering provision did not authorise (section 6(2)(a)(i) and (ii)).

It still exists until a court says otherwise. That is the Oudekraal rule, and the Constitutional Court applied it to the state’s own decisions in Kirland in 2014. The department there had “withdrawn” an approval granted by an acting official on the MEC’s instruction and treated it as a nullity. The majority held that it could not: it had to apply to court.

The court keeps a discretion. When the organisation itself goes to court to undo its own decision, it does so under the principle of legality, not PAJA (Gijima, 2017), and the remedy is not guaranteed. In Buffalo City in 2019 the municipality had waited too long; the contract was declared invalid but not set aside, and the contractor kept what it had earned.

Ratification is the usual rescue, and it is narrower than it looks. In Smith v Kwanonqubela Town Council the Supreme Court of Appeal let a council ratify legal proceedings launched in its name without authority, because instituting proceedings is a procedural step open to anyone, not an administrative act; even then, ratification could not take away rights third parties had already acquired. A Council ratifying a committee’s unauthorised award months later is doing something quite different, and should not assume the same result.

Three · Noting is not approval

The second habit is quieter. A subcommittee chairperson tables a report. The recommendations need Council’s approval. There is discussion, and the minute records that “Council noted the report”. A month later the recommendations are being implemented on the strength of that minute.

The words carry different consequences.

Noting records that the report served before Council and that Council took cognisance of it. It says nothing about whether Council agrees with any part of it. A noted report leaves its recommendations exactly where they were: undecided.

Approving, or adopting, is a decision by resolution to accept specific recommendations. The resolution is the authority on which management acts.

Endorsing usually signals support for a recommendation that another body must still decide. It is not approval either.

The law takes the difference seriously where it matters most. When a municipal council deals with its annual report, section 129 of the Municipal Finance Management Act does not let it simply note the report. Its oversight report must state whether Council approved the annual report with or without reservations, rejected it, or referred it back for revision, and National Treasury’s guidance is that the statement should take the form of a Council resolution. For a company, section 73 of the Companies Act requires minutes of board and committee meetings to record every resolution adopted, numbered and dated; a resolution is effective from its date; and signed minutes are evidence of what was decided. None of that works if the minute says “noted” when the meeting meant “approved”, or “approved” when the meeting only listened.

Four · What it costs

The cost of both habits is the same, because the fault is the same: implementation without a mandate.

Every step taken is open to challenge by anyone with an interest in it, including the bidder who lost and the candidate who was not appointed. For a public entity, money spent on a decision the founding Act required Council to approve can fall within the PFMA’s definition of irregular expenditure: expenditure not in accordance with a requirement of applicable legislation. The accounting authority then has to explain it. The auditors ask for the resolution, and there is a committee minute, or a note, and nothing else. And the official who signed and the supplier who delivered carry the uncertainty for as long as the decision stands.

Five · Five habits that prevent it

None of this needs a new structure. It needs a few disciplines, applied at every meeting.

Terms of reference that say, item by item, what the committee may decide and what it may only recommend. A single line, “the committee has such powers as Council may delegate”, is not a delegation. It is a promise of one.

Agenda items marked “for noting” or “for decision”. A report whose recommendations need approval is a decision item, and the cover sheet says what Council is asked to approve and under which provision it has the power.

The chairperson puts each recommendation to the meeting. Not “is the report noted?” but “does Council approve recommendations 1, 2 and 3?”. If Council is not ready, the minute says what happens to them: deferred, referred back, or not approved.

Minutes written in the right verb. A recommendatory committee’s minute reads “The committee recommends that Council approve”. Council’s minute reads “Council resolved to approve”, with what was approved, who implements it and by when. The secretary reads the resolutions back before the meeting closes.

Management implements from a signed extract of the resolution. No resolution, no implementation. A committee minute alone is not enough, and a noted report is not enough.

A committee that recommends well is valuable, and a Council that notes a good report has done nothing wrong. The trouble starts when the organisation treats either as an approval. Recommend is not decide. Noted is not approved. The minute should say which one happened, and management should act only on an approval.

Sources: Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council 1999 (1) SA 374 (CC), paragraph 58; Constitution of the Republic of South Africa, 1996, section 160(2); Local Government: Municipal Systems Act 32 of 2000, section 59(2)(a); Companies Act 71 of 2008, sections 72 and 73; Promotion of Administrative Justice Act 3 of 2000, section 6(2)(a); Oudekraal Estates (Pty) Ltd v City of Cape Town 2004 (6) SA 222 (SCA); MEC for Health, Eastern Cape v Kirland Investments (Pty) Ltd 2014 (3) SA 481 (CC); State Information Technology Agency SOC Ltd v Gijima Holdings (Pty) Ltd 2018 (2) SA 23 (CC); Buffalo City Metropolitan Municipality v Asla Construction (Pty) Ltd 2019 (4) SA 331 (CC); Smith v Kwanonqubela Town Council 1999 (4) SA 947 (SCA); Local Government: Municipal Finance Management Act 56 of 2003, section 129(1), and National Treasury MFMA Circular 32 of 15 March 2006; Public Finance Management Act 1 of 1999, section 1 (definition of irregular expenditure). The judgments were read on SAFLII and the Acts on SAFLII, LawLibrary and Acts Online, on 11 and 12 October 2026. This piece is general commentary. It is not legal advice on any specific matter, and no professional relationship arises from reading it.