CSL2601 – Assessment 1 (Semester 2: 2025)
Moffat Ndou (9876543)
Introduction
The doctrine of the separation of powers—though not explicitly named in the
Constitution of the Republic of South Africa, 1996—lies at the heart of the country’s
constitutional democracy. It is essential for ensuring accountability, upholding the rule of
law, and protecting democratic governance. The principle operates through a system of
checks and balances, where each arm of government—legislature, executive, and
judiciary—exercises oversight over the others to prevent abuse of power. However, this
ideal has been challenged by recent political developments that have exposed
institutional weaknesses and blurred the lines between branches of state.
This essay explores the notion of checks and balances within the South African
constitutional context, examining how each branch of government applies this principle.
It further analyses key jurisprudence and political events that illustrate tensions
threatening to undermine the separation of powers, drawing on at least five
constitutional court decisions and contemporary examples.
1. Understanding Checks and Balances Within the Separation of Powers
The doctrine of separation of powers is not expressly stated in the 1996 Constitution.
However, it is “axiomatic” in its structure, as entire chapters are devoted respectively to
the Legislature (Chapter 4), Executive (Chapter 5), and Judiciary (Chapter 8), each
with distinct roles and powers.¹ A system of checks and balances ensures that no
branch becomes too powerful, and each branch holds others to account.
This system ensures:
, The Executive is answerable to Parliament and subject to judicial review;
The Legislature oversees Executive conduct and approves budgets and laws;
The Judiciary enforces the Constitution and reviews both executive and
legislative actions.
In Glenister v President of the Republic of South Africa, the Constitutional Court
affirmed that the separation of powers is implied in the Constitution, and highlighted how
the judiciary safeguards against executive overreach.²
2. Application by Each Branch of Government
2.1 The Executive
The Executive exercises national authority but must act in accordance with the
Constitution and is accountable to Parliament.³ The President, though head of state and
government, is not above the law.
In Economic Freedom Fighters v Speaker of the National Assembly and Others
(EFF 1), the Court declared that the President failed to uphold his constitutional
obligations regarding the Nkandla matter. The judiciary enforced the Public Protector’s
remedial action and reinforced the principle that executive power must be exercised
within constitutional bounds.⁴
2.2 The Legislature
Parliament has the power to pass legislation, approve budgets, and conduct oversight
of the Executive. This includes the ability to hold inquiries and impeach the President.⁵
However, Parliament has at times failed to exercise these powers effectively. In
Economic Freedom Fighters v Speaker of the National Assembly and Others (EFF
2), the Court found that Parliament’s failure to establish an impeachment inquiry into the
Moffat Ndou (9876543)
Introduction
The doctrine of the separation of powers—though not explicitly named in the
Constitution of the Republic of South Africa, 1996—lies at the heart of the country’s
constitutional democracy. It is essential for ensuring accountability, upholding the rule of
law, and protecting democratic governance. The principle operates through a system of
checks and balances, where each arm of government—legislature, executive, and
judiciary—exercises oversight over the others to prevent abuse of power. However, this
ideal has been challenged by recent political developments that have exposed
institutional weaknesses and blurred the lines between branches of state.
This essay explores the notion of checks and balances within the South African
constitutional context, examining how each branch of government applies this principle.
It further analyses key jurisprudence and political events that illustrate tensions
threatening to undermine the separation of powers, drawing on at least five
constitutional court decisions and contemporary examples.
1. Understanding Checks and Balances Within the Separation of Powers
The doctrine of separation of powers is not expressly stated in the 1996 Constitution.
However, it is “axiomatic” in its structure, as entire chapters are devoted respectively to
the Legislature (Chapter 4), Executive (Chapter 5), and Judiciary (Chapter 8), each
with distinct roles and powers.¹ A system of checks and balances ensures that no
branch becomes too powerful, and each branch holds others to account.
This system ensures:
, The Executive is answerable to Parliament and subject to judicial review;
The Legislature oversees Executive conduct and approves budgets and laws;
The Judiciary enforces the Constitution and reviews both executive and
legislative actions.
In Glenister v President of the Republic of South Africa, the Constitutional Court
affirmed that the separation of powers is implied in the Constitution, and highlighted how
the judiciary safeguards against executive overreach.²
2. Application by Each Branch of Government
2.1 The Executive
The Executive exercises national authority but must act in accordance with the
Constitution and is accountable to Parliament.³ The President, though head of state and
government, is not above the law.
In Economic Freedom Fighters v Speaker of the National Assembly and Others
(EFF 1), the Court declared that the President failed to uphold his constitutional
obligations regarding the Nkandla matter. The judiciary enforced the Public Protector’s
remedial action and reinforced the principle that executive power must be exercised
within constitutional bounds.⁴
2.2 The Legislature
Parliament has the power to pass legislation, approve budgets, and conduct oversight
of the Executive. This includes the ability to hold inquiries and impeach the President.⁵
However, Parliament has at times failed to exercise these powers effectively. In
Economic Freedom Fighters v Speaker of the National Assembly and Others (EFF
2), the Court found that Parliament’s failure to establish an impeachment inquiry into the
