1 . IntroductionThis paper seeks to discuss the import and impact of the doctrine
of separation of powers (‘the doctrine’) in South Africa. It discusses
the meaning of the doctrine, its origin, historical development,
its main objectives (in line with the writer’s views), its place in
our Constitution and its application by the Constitutional Court.
The doctrine is discussed in the context of seeking to contribute
towards a debate on whether there is an off-side rule in its practical
application. A brief comparative overview of the some foreign
constitutions on the doctrine is presented as a prelude to the
conclusion proposed.
2 . Meaning of separation of powersThe doctrine means that specific functions, duties and responsibilities
are allocated to distinctive institutions with a defined
means of competence and jurisdiction. It is a separation of three
main spheres of government, namely, Legislative, Executive and
Judiciary. Within the constitutional framework the meaning of
the terms legislative, executive and judicial authority are of importance:
(a) Legislative authority – Is the power to make, amend and
repeal rules of law.
(b) Executive authority – Is the power to execute and enforce
rules of law.
(c) Judicial authority – Is the power; if there is a dispute, to
determine what the law is and how it should be applied in
the disputes.1
The doctrine of separation of powers means ordinarily that if
one of the three spheres of government is responsible for the
enactment of rules of law, that body shall not also be charged
with their execution or with judicial decision about them. The
same will be said of the executive authority, it is not supposed to
enact law or to administer justice and the judicial authority should
not enact or execute laws.
Lord Mustill in R v Home Secretary, Ex p Fine Brigades Union2
defined the doctrine of separation of powers in England as:
‘It is a feature of the peculiary British conception of the Separation
of powers that Parliament, the executive and the courts
have each their distinct and largely exclusive domain. Parliament
has a legally unchallengeable right to make whatever laws it
thinks right. The executive carries on the administration of the
country in accordance with the powers conferred on it by law.
The courts interpret the laws, and see that they are obeyed.’The meaning of separation of powers in United States of America
and France shows a variety of meanings. The concept may mean
at least three different things:
(a) That the same person should not form part of more than
one of the three organs of government, for example, that
ministers should not sit in parliament;
(b) that one organ of government should not control or interfere
with the work of another, for example, that the executive should
not interfere in judicial decisions;
(c) that one organ of government should not exercise the
functions of another, for example, that ministers should not
have legislative powers.3
Sight should not be lost of the fact that complete separation of
powers is not possible -neither in theory nor in practice. Some
overlapping is unavoidable; given the fact that we talk here of
spheres of what is in fact one government.
3 . The origin of the doctrine of separation of powersThe modern design of the doctrine of separation of powers is to
be found in the constitutional theory of John Locke (1632-1704).
He wrote in his second treaties of Civil Government as follows:
‘It may be too great a temptation for the humane frailty, apt to
grasp at powers, for the same persons who have power of making
laws, to have also in their hands the power to execute them,
whereby they may exempt themselves from the law, both in its
making and execution to their own private advantage’.4
It is clear that he was advocating the division of government
functions into legislative, executive and judicial. However it is
the French philosopher (jurist) Montesquieu (1689–1755) who is
usually credited with the first formulation of the doctrine of
separation of powers. He based his exposition on the British
Constitution. In the pertinent chapter of his well celebrated work,
L’ Esprit des Lois (1748),5 he purported to describe the British
Constitutional system of the 18th Century6 so that it might serve
as an example to France of a political dispensation founded on
liberty, which according to him, was the supreme objective of a
political society. JD van Der Vyver observed that Montesquieu
was a poor observer, since the British constitutional system did
not comply then, neither does it today, with the basic norms of
the idea of separation of powers.7 Even if it were so, Montesquieu’s
analysis of the British system, is generally accepted as political
ideal which is worth pursuing.
Montesquieu recognised the three basic pillars of state authority, which includes the executive, legislature and the judicial functions; and he added that these functions ought to vest in
three distinct governmental organs with, in each instance, different
office bearers. He supported his argument by saying:8
‘All would be in vain if the same person, or the same body of
officials, be it the nobility or the people, were to exercise these
three powers: that of making laws, that of executing the public
resolutions, and that of judging crimes or disputes of individuals’. the subject would be exposed to arbitrary control; for the judge
would be then the legislator. Were joined to the executive power,
the judge might behave with violence and oppression’.
His idea eventually developed into a norm consisting of four
basic principles:9
(a) The principle of trias politica, which simply requires a formal
distinction to be made between the legislative, executive and
judiciary components of the state authority.
(b) The principle of separation of personnel, which requires that
the power of legislation, administration and adjudication be
vested in three distinct organs of state authority and that
each one of those organs be staffed with different officials
and employees, that is to say, a person serving in the one
organ of state authority is disqualified from serving in any of
the others.
(c) The principle of the separation of functions which demands
that every organ of state authority be entrusted with its
appropriate functions only, that is to say, the legislature ought
to legislate, the executive to confine its activities to administering
the affairs of the state, and the judiciary to restrict
itself to the function of adjudication.
(d) The principle of checks and balance, which represents the
special contribution of the United States to the notion of
separation of powers, and which requires that each organ
of state authority be entrusted with special powers designed
to keep a check on the exercise of functions by the others in
order that the equilibrium in the distribution of powers may
be upheld.Sir William Blackstone echoed these sentiments:12
‘In all tyrannical government the supreme magistry, or the right
both of making and enforcing the laws, is vested in one and the
same man, or one and the same body of men; and whenever
these two powers are united together, there can be no public
liberty.
The magistrate may enact tyrannical laws, and execute
them in a tyrannical manner, since he is possessed in quality of
dispenser of justice, with all the quality of dispenser of justice,
with all the power which he as legislator thinks proper to give
himself. But, where the legislature and executive authority are
in distinct hands, the former will take care not to entrust the
later with so large a power, as may tend to the subversion of its
own independence, and therewith of the liberty of the subject
…’ He continued further:13
‘In this distinct and separate existence of the judicial power, in
a particular body of men, nominated indeed, but not removable
at pleasure, by the crown, consists one main preservative of the
public liberty, which cannot subsist long in any state, unless the
administration of common justice be in some degree separated
from both the legislative and also from the executive power.
Were it joined with the legislative, the life, liberty and property,
of the subject would be in the hands of arbitrary judges, whose
decisions would be then regulated only in their own opinions,
and not by any fundamental principles of law, which, though
legislatures may depart from, yet the judges are bound to
observe. Were it joined with executive, this union might soon be
an over balance for the legislative …’
According to Dicey, the doctrine rests on ‘the necessity…of
preventing the government, the legislature and the courts from
encroaching upon one another’s province’.14 Only few countries
are attempting to implement the doctrine of separation of powers.
The United States constitutional system comes close to the theory
of Montesquieuan theory. Generally speaking,the United Kingdom
Constitution doesn’t comply with the demands of the doctrine
of separation of powers. A detailed discussion on the application
of the doctrine in South Africa follows.
5 . The doctrine of separation of powers in
the South African ConstitutionDue to the British colonial flavour, the pre-constitutional dispensation
in South Africa did not favour the doctrine of the
separation of powers to flourish. The text of the South African
final Constitution15 does not explicitly refer to the doctrine of
separation of powers. The inception of the doctrine in the current
South African constitutional order can be traced back to our
Constitutional Principle VI, which is one of the principles that
governed the drafting of the final constitution. Schedule 4 of the
Interim Constitution16 provided that:
‘There shall be a separation of powers between the Legislature,
Executive and Judiciary, with appropriate checks and balances
to ensure accountability, responsiveness and openness’.‘The principle of separation of powers, on the one hand, recognises
the functional independence of branches of government.
On the other hand, the principle of checks and balances
focuses on the desirability of ensuring that the constitutional
order, as a totality, prevents the branches of government from
usurping power from one another. In this sense it anticipates
the necessity or unavoidable intrusion of one branch on the
terrain of another. No constitutional scheme can reflect a
complete separation of powers …’ (My emphasis.)
Section 8(1) of the final constitution lists all the elements of the
structures that are bound by the Bill of Rights namely, the
legislature, the executive, the judiciary and all organs of state.
The question whether or not the doctrine of separation of powers
forms part of the final constitution has been considered and
explained in several Constitutional Court cases. It is axiomatic
that the doctrine of separation of powers is part of our constitutional
design.
In Glenister v President of the Republic of South Africa17 Langa
CJ (as he then was) stated that ‘the doctrine of separation of
powers is part of our constitutional design.’ Indeed Chapters 4
to 8 provide for a clear separation of powers between three
spheres of government. Section 43 vests the legislative authority
of the Republic at the national sphere in parliament and at the
provincial sphere in the provincial legislatures. Sections 85 and
125 respectively vest the executive authority of the Republic in the
president and of the provinces in the premiers. Section 165 vests
the judicial authority in the court’.
The Constitutional Court in South African Association of
Personal Injury Lawyers v Heath18 Chaskalson P stated as follows:
‘In the first certification judgment this Court held that the
provisions of our Constitution are structured in a way that makes
provision for a separation of powers. ... There can be no doubt
that our Constitution provides for such a separation (of powers),
and that laws inconsistent with what the Constitution requires in
that regard are invalid’.
There is no doubt that the doctrine of separation of powers
forms part of our constitutional system. As articulated above the
Constitution doesn’t only differentiate three spheres of government
i.e. legislative, executive and judiciary function, it vests these
functions in different organs of state. The doctrine of separation
of powers may be regarded as an unexpressed provision that is
implied in or implicit to the Constitution.
6 . Application of the doctrine of separation of
power in South AfricaThe doctrine of separation of powers in South Africa took a
centre-stage in a number of Constitutional Court cases. In South
African Association of Personal Injury Lawyers v Heath20 Chaskalson
CJ while comparing the constitutional dispensations of
South Africa and United States of America and Australia stated
that:
‘In all three countries, however, there is a clear though not
absolute separation between the legislature and the executive
on the one hand, and the courts on the other.’
In most cases the Constitutional Court has held that the doctrine
of separation of powers does not always have to be strictly applied.
In the first certification judgment, Ex parte Chairperson of the
Constitutional Assembly of the Republic of South Africa,21(the First
Certification case) the court stated that:
‘There is, however, no universal model of separation of powers
and, in democratic system of government in which checks and
balances result in the imposition of restraints by one branch of
government upon another, there is no separation of powers that
is absolute …’
The court continued at para 109 as follows:
the power to bring an Act into operation to a member of the
executive or to some other appropriate person, for example the
speaker of the legislature. The bringing into operation of an Act
of parliament seems to have been assessed as not core legislative
power.
7 . Example of case law on the doctrine of
separation of powers
The doctrine of separation of powers in South Africa since the
1994 election and our new democratic government and the final
Constitution has been investigated extensively in various
judgement of the Constitutional Court. The judiciary spent time
developing the home-grown model of the doctrine as envisaged
by the Constitution. I have already articulated earlier that there
is no complete separation of powers, and that possibly there
cannot be complete separation. It is thus not surprising to find
some cases from the Constitutional Court applying the doctrine
of separation of powers strictly (usually in those cases that involve
the relationship between legislature and the executive).23
In De Lange v Smuts No and Others24 the Constitutional Court
held that a member of the executive may not be given the power
to commit an un-cooperative witness to prison. This is because
the courts have such power to send someone to prison. It is a
judicial function and not an executive one.
In South African Association of Personal Injury Lawyers v
Heath25 the Constitutional Court held that a judicial officer may
not be appointed as the head of a criminal investigation unit.
This is because the power to investigate and prosecute crimes is
an executive function and not judicial function.
In S v Dodo26 the Constitutional court held that while the
legislature may determine a minimum sentence for a particular
crime, it may not determine the sentence that should be imposed
in a particular case. This is because the power to impose a
sentence on the offender is a judicial function and not an executive
function.
In Executive Council Western Cape Legislature v President of
Republic of South Africa27 the Constitutional Court held that while
the legislature may not delegate plenary law-making powers to
the executive, it may delegate subordinate law-making powers.
The court thus confirmed reservation of plenary law making for
the legislature and made it non-delegatable. This is because it
is necessary for the effective law-making.
In re Constitutionality of the Mpumalanga Petitions Bill, 2000,28
the Constitutional Court held that the legislature may delegate the statute. If there is nothing to amend the bill as introduced by the executive may simply be passed by the legislature.
8. Checks and balances on the doctrine of
separation of powersThe purpose of checks and balances is to ensure that different
branches of government control each other internally (checks)
and serve as counter weights to the power possessed by the
other branches (balances).29 Simply put, the aim of separation
of functions and personnel is to limit the power; the purpose of
checks and balances is to make the branches of government
accountable to each other. The most conspious example of a
check is the power of the judiciary to review executive conduct
and ordinary laws for the compliance with the Constitution and
the Bill of Rights. Judicial review in this case constitutes neither
executive nor judicial function; it is a mere check on the exercise
of executive and legislative power. It is a power exercised by the
judiciary to ensure constitutional compliance and not to exercise
the power of another authority.
8.Checks and balances: the judiciary over
the executiveThe judiciary may review the conduct of the executive either in
terms of the common law or statutory law. In President of the
Republic of South Africa v Hugo64 and President of the Republic
of South Africa v SARFU65, the court held that the exercise by the
president of his power to pardon offenders or to appoint a commission
of enquiry is subject to review by the courts. It also applies
while the president is exercising the power conferred on him by
the Constitution.
The judiciary also swears in members of the executive when
they assume office. This is yet another incident of overlapping of
authority with no functional interference. These are checks and
balances that entrench and do not weaken democratic order.
9.Parliament not to function as a courtIn the 1950’s the parliament had created a ‘High Court of Parliament’
to review court decisions invalidating Acts of Parliament.
Its aim was to overturn some decision taken by the ordinary
court. This was contrary to the doctrine of separation of powers.
It was then invalidated by the Appellate Division in the case of
Minister of the Interior v Harris68, Centlivres CJ stated that ‘High
court of parliament was not a court of law but simply parliament
functioning under another name’.
This was, probably, the most obvious attempt by the legislature
to abrogate judicial function to itself and to annul judgments
that it did not like.
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1 IM Rautenbach Constitutional Law 4 ed (2003) at p 78.
2 [1995] 2 at 513 at 567.
3 AW Bradley and KD Ewing Constitutional and Administrative Law 13ed p 84.
4 Ch X (1), Para 143, Quoted in ‘Vile Constitutionalism and the separation of
powers’ p 62.
5 Edition published in Parid in 1877, 11.6. The title of the chapter is ‘De la constitution
d’ Angleterre’.
6 Visited England in 1732.
7 JD Van Der Vyver ‘The Separation of Powers’ 1993 (8) South African public law
177 at p 178.
8 Supra n 5, 11.6: ‘Tout seroit perdu si le meme home, ou le mrmr corps des
principaux, ou des nobles, ou du people, exeroient ces trios pouvourous: celui de
faire des loix, celui d’ executer le resolutions publiques, et celui de juger les
differends des particuliers.’
9 See Ville Constitutionalism and separation of powers (1967) p 13.
10 ‘Oliver Schreiner memorial lecture: separation of powers, democratic ethos and
judicial function’ 2008 SAJHR 341 at p 349.
11 Supra n 2. 11.6 ( translation in text by Thomas Nugent: Franz Neumann The spirit
of the laws by Montesquieu introduction (1949) p 151-2 : ‘Lorsque dans meme
personne ou dans le meme corps de magistrature la puissance legislative est
reunie a la puissance executrice, il n’y a point de liberte, parce qu’ on peut
craindre que le mme monarque ou le mme senat ne fasse de lois trynniques pour
les executer tryanniquement. II n’y point encore de liberte si la puissance de juger
n’ est pas separee de la puissance legislative et de l’excutrice. Si elle etait jointe
a la puissance legislative, le pouvoir sur la et la liberte des citoyens serait arbitraire;
car le juge serait legislature. Si elle etait jointe a la puissance executrice, le juge
pourrait avoir la force d’ un oppresseur.’
12 Commentaries on the Laws of England in Four Books 7 ed (1775) Vol 1 at 146.
13 Supra n 7.
14 Introduction to the study of the Constitution (1959) p 337.
15 Act 108 of 1996.
16 Act 200 of 1993.
17 2009 (1) SA 287 (CC) at p 298.
18 2001 (1) BCLR 77 (CC) P86 at par 22.
19 Joubert LAWSA Vol 5 (2012) Part 3 par 10.
20 Supra n 18 at par 23.
21 1996 (4) SA 744 (CC) at p 810 para 108.
22 De Lange v Smuts No and Others 1998 (7) BCLR 779 (CC) at p 804 par 60.
23 Supra n 18 par 12.
24 Supra n 22.
25 Supra n 18.
26 2001 (5) BCLR 423 (CC).
27 1995 (10) BCLR 1289 (CC).
28 2001 (11) BCLR 1126 (CC).
29 Supra n 18 par 112.
30 Supra n 20 par 111.
31 Currie and De Waal The New Constitutional and Administrative Law (2001) 1 ed
p 97.
32 Sunstein Design Democracy: What constitutions do (2001) p 137.
33 Werkin 2002Georgetown law journal 1055; See also Joubert LAWSA Vol 5 Part 3
par 13.
34 Supra n 28.
35 Supra n 28 at p 1071–1073.
36 Caroll Constitutional and Administrative Law 3ed (2003) p 130–132.
37 Supra n 27.
38 Act 209 of 1993.
39 Supra n 16.
40 See supra n 28 at par 51–62.
41 See supra n 28 at par 62.
42 2011 (10) BCLR 1017 (CC).
43 Act 41 of 2001.
44 Currie and De Waal The Bill of Rights Handbook (2005).
45 See supra n 44 at chapter 4 4.6 (e).
