1B: Separation of Powers & Structures of the South African Government
I. SOP: Introduction
Government: 3 Main functions:
- Legislative Authority Make laws
- Executive Authority Apply laws & execute them
- Judicial Authority Resolve legal disputes
Aim of SOP:
- Restriction / check on exercise of state power
o = implication of constitutionalism awarding but restraining power
- Seeks to limit powers of each branch of government
- Power distributed amongst the branches and not centralized in one specific
body
o = distribution of power
- 3 branches act as checks on each other
- Branch acts outside its bounds = can be challenged
- Role of CT = ensures power cannot be abused
Role of the Constitution:
- Awards power, but places restrictions on the exercise of all public powers
- Done in 2 ways:
o Substantively via the BOR and other values; ROL
o Procedurally through SOP = important mechanism to ensure division of
power and prevention of unchecked abuse of power
- Doctrine of SOP not found in CT
o Not explicitly refereed to but still provided for by the structure of the CT
and confirmed by CC
o Constitutional Principle VI = ‘there shall be separation of powers
between legislature, executive and judiciary with appropriate checks
and balances to ensure accountability, responsiveness and openness’
o CC: ‘not a rigid / universal model of SOP’
- Structure of CT: implicitly provides for SOP
o Chapter 4: Legislature
o Chapter 5: Executive
o Chapter 8: Judiciary
,4 Principles of SOP:
- Division of governmental power:
o Trias Politica
- Separation of functions:
o Each government branch = specific powers conferred onto it and
specific obligations which need to be fulfilled
- Separation of personnel:
o Each branch = different persons which fulfil branch’s specific functions
- Checks and balances:
o To ensure that one branch does not have too much power
o Accountability, responsiveness and openness
- Centralized power = problematic
3 Branches:
Legislature:
- Personnel:
o Members of Bi-cameral parliament (NA + NCOP)
- Function:
o Enacts law
o Holds executive accountable
Executive:
- Personnel:
o President as Head
o Deputy President
o Ministers
o Departments
- Function:
o Make policy
o Implement and administer law
o Make crucial appointments (Judges)
* Not a strict SOP between legislature and judiciary
- Function:
o Parliament makes law
o Executive can develop and implement law and policy
- Personnel:
o Deputy President and Ministers remain part of legislature and
executive
- First Certification Judgement:
, o CH 6: has to be SOP with specific provision for checks and balances
did not provide for rigid and absolute separation between legislature
and executive but must be separated from judiciary
o = independent and impartial
Judiciary:
- Personnel:
o Judges & Magistrates
- Function:
o Interpret law
o Adjudicate legal disputes
o Declare law or conduct of other branches as invalid
* Absolute SOP from Legislature & Executive
South African Association of Personal Injury Lawyers v Heath:
- Court highlights importance of SOP between executive and judiciary
- President established special investigative unit to investigate allegations of
unlawful conduct damaging to state institutions, corruption and
maladministration
- President appointed a judge as head of investigative unit
- SOP then questioned:
o Judge as head
o Granted powers not usually awarded to a judge
- Court noted that investigative unit has extensive investigative powers
o Aligned to powers which normally provided to the executive –
performed by police, NPA not usually awarded to judicial authority
- Draws clear distinction between executive functions and judicial functions
- Court:
o Head of SIU and his functions = related to recovering of money related
to corruption, in position to claim money back through litigation
In this instance: judge cannot distance themselves from actions
of investigators = partisan overlap
Inconsistent with what is normally understood to be part of
judiciary = has an effect on independence and impartiality of the
judiciary
- Appointing judge as head of SIU = declared invalid with emphasis on clear
and distinct separation between judiciary and executive
, Mwelase and Others v DG for Department of Rural Development and Land Reform
and Another:
- Application for leave to appeal against judgement by SCA
- = Failure by Department of Rural Development and Land Reform to process
land tenant applications submitted in terms of Land Reform Act (LTA)
o Resulted in Land Claims Court (LCC) to order appointment of Special
Master for labour tenants to assist Department in implementation of
LTA
o SCA affirmed most of LCC’s judgement but upheld Department’s
appeal against the appointment of Special Master
- = Contempt application brought against Master of Rural Development and
Land Reform
o LLC; applicants did not establish that Minister was in contempt of its
order
o SCA unanimously dismissed the appeal
- Applications under LTA with Department before cut-off date (31 March 2001),
but they failed to be processed
o SCA & LCC found violation of Ss 10, 25(6), 33, 195 & 237 CT
- Q:
o Whether the order LCC granted constitutes judicial overreach wrt
extent of LCC’s power to make and implement remedies
- Applicants approached court in July 2013 regarding the failure to process
applications
o 2016 LCC ordered appointment of Special Master of Labour Tenants,
to assist LCC monitoring the DG and Department’s implementation of
the Act
- Department & DG appealed against such appointment in SCA:
o SCA considered concept of Special Master as inapposite and foreign
o LCC overreached judicial role
o Dissenting judgement: Special Master within LCC’s remedial powers
- CC:
o Appeal against Special Master and SCA contempt findings (restoration
of LCC order)
o Majority:
Department has manifested misapprehension of statutory duties
Showed unresponsiveness & refusal to account those
dependent on it (land claims)
o Doctrine of SOP: does not imply rigid or static conception of strictly
demarcated functional roles
3 branches share commitment to CT (justice, dignity and
equality)
Shared enterprise of fulfilling practical constitutional promises to
Republic’s most vulnerable
I. SOP: Introduction
Government: 3 Main functions:
- Legislative Authority Make laws
- Executive Authority Apply laws & execute them
- Judicial Authority Resolve legal disputes
Aim of SOP:
- Restriction / check on exercise of state power
o = implication of constitutionalism awarding but restraining power
- Seeks to limit powers of each branch of government
- Power distributed amongst the branches and not centralized in one specific
body
o = distribution of power
- 3 branches act as checks on each other
- Branch acts outside its bounds = can be challenged
- Role of CT = ensures power cannot be abused
Role of the Constitution:
- Awards power, but places restrictions on the exercise of all public powers
- Done in 2 ways:
o Substantively via the BOR and other values; ROL
o Procedurally through SOP = important mechanism to ensure division of
power and prevention of unchecked abuse of power
- Doctrine of SOP not found in CT
o Not explicitly refereed to but still provided for by the structure of the CT
and confirmed by CC
o Constitutional Principle VI = ‘there shall be separation of powers
between legislature, executive and judiciary with appropriate checks
and balances to ensure accountability, responsiveness and openness’
o CC: ‘not a rigid / universal model of SOP’
- Structure of CT: implicitly provides for SOP
o Chapter 4: Legislature
o Chapter 5: Executive
o Chapter 8: Judiciary
,4 Principles of SOP:
- Division of governmental power:
o Trias Politica
- Separation of functions:
o Each government branch = specific powers conferred onto it and
specific obligations which need to be fulfilled
- Separation of personnel:
o Each branch = different persons which fulfil branch’s specific functions
- Checks and balances:
o To ensure that one branch does not have too much power
o Accountability, responsiveness and openness
- Centralized power = problematic
3 Branches:
Legislature:
- Personnel:
o Members of Bi-cameral parliament (NA + NCOP)
- Function:
o Enacts law
o Holds executive accountable
Executive:
- Personnel:
o President as Head
o Deputy President
o Ministers
o Departments
- Function:
o Make policy
o Implement and administer law
o Make crucial appointments (Judges)
* Not a strict SOP between legislature and judiciary
- Function:
o Parliament makes law
o Executive can develop and implement law and policy
- Personnel:
o Deputy President and Ministers remain part of legislature and
executive
- First Certification Judgement:
, o CH 6: has to be SOP with specific provision for checks and balances
did not provide for rigid and absolute separation between legislature
and executive but must be separated from judiciary
o = independent and impartial
Judiciary:
- Personnel:
o Judges & Magistrates
- Function:
o Interpret law
o Adjudicate legal disputes
o Declare law or conduct of other branches as invalid
* Absolute SOP from Legislature & Executive
South African Association of Personal Injury Lawyers v Heath:
- Court highlights importance of SOP between executive and judiciary
- President established special investigative unit to investigate allegations of
unlawful conduct damaging to state institutions, corruption and
maladministration
- President appointed a judge as head of investigative unit
- SOP then questioned:
o Judge as head
o Granted powers not usually awarded to a judge
- Court noted that investigative unit has extensive investigative powers
o Aligned to powers which normally provided to the executive –
performed by police, NPA not usually awarded to judicial authority
- Draws clear distinction between executive functions and judicial functions
- Court:
o Head of SIU and his functions = related to recovering of money related
to corruption, in position to claim money back through litigation
In this instance: judge cannot distance themselves from actions
of investigators = partisan overlap
Inconsistent with what is normally understood to be part of
judiciary = has an effect on independence and impartiality of the
judiciary
- Appointing judge as head of SIU = declared invalid with emphasis on clear
and distinct separation between judiciary and executive
, Mwelase and Others v DG for Department of Rural Development and Land Reform
and Another:
- Application for leave to appeal against judgement by SCA
- = Failure by Department of Rural Development and Land Reform to process
land tenant applications submitted in terms of Land Reform Act (LTA)
o Resulted in Land Claims Court (LCC) to order appointment of Special
Master for labour tenants to assist Department in implementation of
LTA
o SCA affirmed most of LCC’s judgement but upheld Department’s
appeal against the appointment of Special Master
- = Contempt application brought against Master of Rural Development and
Land Reform
o LLC; applicants did not establish that Minister was in contempt of its
order
o SCA unanimously dismissed the appeal
- Applications under LTA with Department before cut-off date (31 March 2001),
but they failed to be processed
o SCA & LCC found violation of Ss 10, 25(6), 33, 195 & 237 CT
- Q:
o Whether the order LCC granted constitutes judicial overreach wrt
extent of LCC’s power to make and implement remedies
- Applicants approached court in July 2013 regarding the failure to process
applications
o 2016 LCC ordered appointment of Special Master of Labour Tenants,
to assist LCC monitoring the DG and Department’s implementation of
the Act
- Department & DG appealed against such appointment in SCA:
o SCA considered concept of Special Master as inapposite and foreign
o LCC overreached judicial role
o Dissenting judgement: Special Master within LCC’s remedial powers
- CC:
o Appeal against Special Master and SCA contempt findings (restoration
of LCC order)
o Majority:
Department has manifested misapprehension of statutory duties
Showed unresponsiveness & refusal to account those
dependent on it (land claims)
o Doctrine of SOP: does not imply rigid or static conception of strictly
demarcated functional roles
3 branches share commitment to CT (justice, dignity and
equality)
Shared enterprise of fulfilling practical constitutional promises to
Republic’s most vulnerable
