CSL2601
Assignment 1
Semester 2 2025
Due August 2025
,CSL2601
Assignment 1
Semester 2 2025
DUE August 2025
Constitutional Law
Checks and Balances and the Separation of Powers in South Africa’s
Constitutional Democracy
South Africa’s constitutional democracy, underpinned by the 1996 Constitution, is a
complex yet carefully engineered system designed to prevent the concentration of
power. While the Constitution does not explicitly use the term separation of powers, it
entrenches a structure that divides state power among the legislature, executive, and
judiciary, with each institution empowered to check and balance the others. This
design is not merely academic or procedural—it is a critical safeguard of democratic
integrity.
Yet, as recent history has shown, the system is not immune to manipulation. Events like
the state capture era have tested the resilience of these checks, highlighting both
strengths and latent vulnerabilities. This analysis goes beyond textbook definitions to
explore the functional logic, expert perspectives, and contemporary dilemmas within
South Africa’s separation of powers.
, 1. The Structural Logic of Separation and Overlap in South Africa’s Constitutional
Framework
South Africa’s constitutional democracy departs from classical models of separation of
powers by engineering a system that is both functionally differentiated and
deliberately interdependent. While Chapters 4, 5, and 8 of the Constitution define the
institutional boundaries of the legislature, executive, and judiciary, these
demarcations are not intended to isolate power, but to regulate its interaction. The
architecture is not a barrier between branches but a lattice of accountability—a design
that reflects both political pragmatism and legal innovation.
Purposeful Interdependence: Beyond Classical Theory
In traditional liberal constitutional theory, as typified by Montesquieu and later
Madisonian models, separation of powers implies a system of checks through
independence. South Africa, by contrast, adopts a functionalist model in which
cooperation, consultation, and mutual restraint are constitutionally embedded.
For example, the executive is drawn from the legislature, a hallmark of the
Westminster model. This fusion is intentional and not a flaw; it is tempered by robust
mechanisms of judicial review and parliamentary oversight. The President, while head
of the executive, remains accountable to the National Assembly (Section 102), and is
subject to removal through constitutional processes.
This hybrid form is not merely a compromise between models—it is a constitutional
response to the legacies of apartheid, aiming to create a government that is
transparent, participatory, and accountable. The interdependence is therefore
normative, not incidental.
Transformative Constitutionalism: A Uniquely South African Legal Culture
Legal scholar Karl Klare introduced the term transformative constitutionalism to
describe South Africa’s post-1994 legal paradigm. According to Klare, the Constitution
is not simply a legal text but a manifesto for societal reconstruction. It seeks to
Assignment 1
Semester 2 2025
Due August 2025
,CSL2601
Assignment 1
Semester 2 2025
DUE August 2025
Constitutional Law
Checks and Balances and the Separation of Powers in South Africa’s
Constitutional Democracy
South Africa’s constitutional democracy, underpinned by the 1996 Constitution, is a
complex yet carefully engineered system designed to prevent the concentration of
power. While the Constitution does not explicitly use the term separation of powers, it
entrenches a structure that divides state power among the legislature, executive, and
judiciary, with each institution empowered to check and balance the others. This
design is not merely academic or procedural—it is a critical safeguard of democratic
integrity.
Yet, as recent history has shown, the system is not immune to manipulation. Events like
the state capture era have tested the resilience of these checks, highlighting both
strengths and latent vulnerabilities. This analysis goes beyond textbook definitions to
explore the functional logic, expert perspectives, and contemporary dilemmas within
South Africa’s separation of powers.
, 1. The Structural Logic of Separation and Overlap in South Africa’s Constitutional
Framework
South Africa’s constitutional democracy departs from classical models of separation of
powers by engineering a system that is both functionally differentiated and
deliberately interdependent. While Chapters 4, 5, and 8 of the Constitution define the
institutional boundaries of the legislature, executive, and judiciary, these
demarcations are not intended to isolate power, but to regulate its interaction. The
architecture is not a barrier between branches but a lattice of accountability—a design
that reflects both political pragmatism and legal innovation.
Purposeful Interdependence: Beyond Classical Theory
In traditional liberal constitutional theory, as typified by Montesquieu and later
Madisonian models, separation of powers implies a system of checks through
independence. South Africa, by contrast, adopts a functionalist model in which
cooperation, consultation, and mutual restraint are constitutionally embedded.
For example, the executive is drawn from the legislature, a hallmark of the
Westminster model. This fusion is intentional and not a flaw; it is tempered by robust
mechanisms of judicial review and parliamentary oversight. The President, while head
of the executive, remains accountable to the National Assembly (Section 102), and is
subject to removal through constitutional processes.
This hybrid form is not merely a compromise between models—it is a constitutional
response to the legacies of apartheid, aiming to create a government that is
transparent, participatory, and accountable. The interdependence is therefore
normative, not incidental.
Transformative Constitutionalism: A Uniquely South African Legal Culture
Legal scholar Karl Klare introduced the term transformative constitutionalism to
describe South Africa’s post-1994 legal paradigm. According to Klare, the Constitution
is not simply a legal text but a manifesto for societal reconstruction. It seeks to
