CSL2601
Assignment 1
Semester 2
Due August 2025
, THREE SCRIPTS PROVIDED
(Inserting your name, student number)
Checks and Balances in South Africa’s Constitutional Democracy: A Critical
Analysis of the Separation of Powers
Introduction
The separation of powers, although not explicitly stated in the Constitution of the
Republic of South Africa, 1996 ("the Constitution"), is embedded in its structure and
functions as a core mechanism of constitutional democracy.¹ Within this framework, the
principle of checks and balances operates as a safeguard to ensure that the three
branches of government the legislature, the executive, and the judiciary do not exceed
their constitutional mandates.² Given South Africa’s complex political landscape and the
fragility of institutional integrity in recent years, this essay explores how checks and
balances are implemented in practice. It examines the ways each branch performs its
oversight role, identifies emerging threats to institutional accountability, and uses recent
jurisprudence to illustrate these dynamics.
The Concept of Checks and Balances
Checks and balances refer to the constitutional arrangements that allow each arm of
government to monitor and limit the powers of the others.³ This prevents the
concentration of power and maintains democratic accountability. In South Africa, even
though the Constitution doesn’t mention "separation of powers" in explicit terms, its
structure with distinct chapters on the legislature (Chapter 4), the executive (Chapter 5),
and the judiciary (Chapter 8) makes the doctrine axiomatic.⁴
The Constitutional Court in Glenister v President of the Republic of South Africa
underscored the implicit existence of separation of powers, describing it as central to
constitutional design.⁵ The purpose of this arrangement is not to create absolute
independence between branches, but to foster cooperation with sufficient boundaries to
prevent abuse.⁶ Checks and balances thus serve to moderate power, promote
accountability, and uphold constitutional supremacy.
, Legislature and Its Oversight Role
The National Assembly, as the central component of the legislative branch, plays a
critical role in holding the executive accountable.⁷ Section 55 of the Constitution
mandates it to oversee executive action and to maintain oversight over organs of state.⁸
Through mechanisms such as question time, parliamentary committees, motions of no
confidence, and public accounts committees, the legislature exercises checks on
executive decisions.
However, Parliament's effectiveness in this role has come under scrutiny, particularly
during the Zuma administration. In Economic Freedom Fighters v Speaker of the
National Assembly, the Constitutional Court found that the National Assembly had failed
to hold President Zuma accountable for failing to comply with the Public Protector’s
remedial action regarding Nkandla.⁹ This case exposed institutional weaknesses and
political reluctance to challenge executive misconduct, revealing how political allegiance
often hampers legislative oversight.
The Executive's Role in the Separation of Powers
The executive is responsible for implementing laws and managing the country’s daily
governance. While it is the most powerful branch in terms of direct decision-making, it is
not exempt from checks. The judiciary can review executive actions for constitutional
compliance under section 172 of the Constitution, and Parliament can remove a
President via a two-thirds vote for serious misconduct or violation of the Constitution.¹⁰
Moreover, the executive has indirect checks over both the legislature and judiciary. It
initiates legislation and plays a role in judicial appointments via the Judicial Service
Commission (JSC). However, the process must remain transparent and merit-based to
avoid encroaching on judicial independence. The case of President of the Republic of
South Africa v South African Rugby Football Union (SARFU) demonstrates the limits of
executive power. The Court rejected President Mandela’s contention that he acted in a
purely personal capacity when launching a commission of inquiry, confirming that
executive actions are always subject to constitutional constraints.¹¹
Assignment 1
Semester 2
Due August 2025
, THREE SCRIPTS PROVIDED
(Inserting your name, student number)
Checks and Balances in South Africa’s Constitutional Democracy: A Critical
Analysis of the Separation of Powers
Introduction
The separation of powers, although not explicitly stated in the Constitution of the
Republic of South Africa, 1996 ("the Constitution"), is embedded in its structure and
functions as a core mechanism of constitutional democracy.¹ Within this framework, the
principle of checks and balances operates as a safeguard to ensure that the three
branches of government the legislature, the executive, and the judiciary do not exceed
their constitutional mandates.² Given South Africa’s complex political landscape and the
fragility of institutional integrity in recent years, this essay explores how checks and
balances are implemented in practice. It examines the ways each branch performs its
oversight role, identifies emerging threats to institutional accountability, and uses recent
jurisprudence to illustrate these dynamics.
The Concept of Checks and Balances
Checks and balances refer to the constitutional arrangements that allow each arm of
government to monitor and limit the powers of the others.³ This prevents the
concentration of power and maintains democratic accountability. In South Africa, even
though the Constitution doesn’t mention "separation of powers" in explicit terms, its
structure with distinct chapters on the legislature (Chapter 4), the executive (Chapter 5),
and the judiciary (Chapter 8) makes the doctrine axiomatic.⁴
The Constitutional Court in Glenister v President of the Republic of South Africa
underscored the implicit existence of separation of powers, describing it as central to
constitutional design.⁵ The purpose of this arrangement is not to create absolute
independence between branches, but to foster cooperation with sufficient boundaries to
prevent abuse.⁶ Checks and balances thus serve to moderate power, promote
accountability, and uphold constitutional supremacy.
, Legislature and Its Oversight Role
The National Assembly, as the central component of the legislative branch, plays a
critical role in holding the executive accountable.⁷ Section 55 of the Constitution
mandates it to oversee executive action and to maintain oversight over organs of state.⁸
Through mechanisms such as question time, parliamentary committees, motions of no
confidence, and public accounts committees, the legislature exercises checks on
executive decisions.
However, Parliament's effectiveness in this role has come under scrutiny, particularly
during the Zuma administration. In Economic Freedom Fighters v Speaker of the
National Assembly, the Constitutional Court found that the National Assembly had failed
to hold President Zuma accountable for failing to comply with the Public Protector’s
remedial action regarding Nkandla.⁹ This case exposed institutional weaknesses and
political reluctance to challenge executive misconduct, revealing how political allegiance
often hampers legislative oversight.
The Executive's Role in the Separation of Powers
The executive is responsible for implementing laws and managing the country’s daily
governance. While it is the most powerful branch in terms of direct decision-making, it is
not exempt from checks. The judiciary can review executive actions for constitutional
compliance under section 172 of the Constitution, and Parliament can remove a
President via a two-thirds vote for serious misconduct or violation of the Constitution.¹⁰
Moreover, the executive has indirect checks over both the legislature and judiciary. It
initiates legislation and plays a role in judicial appointments via the Judicial Service
Commission (JSC). However, the process must remain transparent and merit-based to
avoid encroaching on judicial independence. The case of President of the Republic of
South Africa v South African Rugby Football Union (SARFU) demonstrates the limits of
executive power. The Court rejected President Mandela’s contention that he acted in a
purely personal capacity when launching a commission of inquiry, confirming that
executive actions are always subject to constitutional constraints.¹¹
