CONSTITUTIONAL LAW 271: NOTES
Study guide 2: SEPARATION OF POWERS AND STRUCTURES OF GOVERNMENT
Table of Contents
1. SEPARATION OF POWERS: INTRODUCTION .........................................................................................................1
PURPOSE & PRINCIPLES OF THE DOCTRINE OF SEPARATION OF POWERS ..................................................................................... 1
SEPARATION OF POWERS & THE 3 BRANCHES OF GOVERNMENT ............................................................................................... 6
2. SEPARATION OF POWERS & THE NATIONAL LEGISLATURE ...................................................................................7
THE NATIONAL ASSEMBLY ................................................................................................................................................. 9
THE NATIONAL COUNCIL OF PROVINCES ............................................................................................................................ 12
FUNCTION OF PARLIAMENT ............................................................................................................................................. 13
3. SEPARATION OF POWERS & THE NATIONAL EXECUTIVE .................................................................................... 21
PRESIDENT OF THE RSA .................................................................................................................................................. 21
THE DEPUTY PRESIDENT AND THE REST OF CABINET .............................................................................................................. 24
1. Separation of powers: Introduction
Prescribed work:
• Chpt 2 in textbook, pg 60-71
• Chpt 3 in textbook
• Ex Parte Chairperson of the Constitutional Assembly: In Re Certification of the Constitution of the Republic of
SA 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) paras 106-113
• South African Association of Personal injury Lawyers v Heath 2001 (1) SA 883 (CC) paras 5-9; 16-46
Purpose & principles of the doctrine of separation of powers
Government’s functions
1. Make laws – make administrative decisions based on legislative authority = legislative authority
2. Apply laws & execute them = executive authority
3. Resolve legal disputes through the judiciary = judicial authority
• As well as place restrictions/‘check’ on exercise of state power – give power to govern but also restrict –
dispersing power through 3 branches
Before 1994
• Origins of SOP – political philosophy of the Enlightenment in 17th century Europe – oversimplification.
• No SOP existed in pre-colonial southern African societies – trad. leaders performed all functions of gov. –
nevertheless expected to consult with an advisory body = allowing for a check on the exercise of power.
• Modern concept of SOP – emerged as way of explanation of English constitutional model developed by John
Locke.
• Locke: constitutional developments in England – ended absolute monarchic power but didn’t want all power
to be placed in parliament. Never thought SOP between executive & judiciary possible.
• Charles Baron de Montesquieu: devised modern concept of SOP – division of governmental power into trias
politica (legislative, executive, & judicial branch).
• Against danger of over-concentration of power in hands of monarch – need to distribute & balance power
became evident.
• Thought of as revolutionary – radical social change.
• Earliest evidence: adoption of US Constitution
1
, • Limiting governmental power – separation of powers primary concern: establishing procedural limits on
exercise of power. How? By ensuring that power is not concentrated in 1 institution/branch, or 1
person/office.
• More predictable & transparent way to prevent tyranny – distribution of power = seeks to limit possibility of
an overconcentration of power in 1 branch & create level of exclusiveness/specialisation of functions.
• Main premise of pre-1994: Check on state power was restricted – difficult to check which branch of
government – therefore no checks – led to erosion of fundamental human rights
Post 1994: Role of Constitution
• Place restrictions/check on exercise of all public powers both in a substantive form and a procedural form.
• Substantively: Restrictions on exercise of public power – achieved through justiciable bill of rights &
constitutional commitment to other values like the rule of law. Eg. BOR – capital punishment – right to life;
rule of law – state cannot do anything that is not sanctioned by the law.
• Procedurally: Restrictions achieved through Separation of Powers (SOP). Eg. Supranational of powers –
assigning different powers & functions on different branches.
• SOP doctrine – limit powers of each branch of gov. It is therefore the basis for an institutional, procedural &
structural division of public power – ensure abuse of power is restricted & public power is exercised wisely.
• SOP is not purely procedural. Procedural = Constitution restricts government power.
o May have substantive effect if a branch of law does not execute their responsibiities.
• Protection of human rights + safeguarding political liberty against abuse of political power.
o Procedural nature of SOP can therefore be seen as having a substantive aim
Doctrine of the separation of powers not found in South African Constitution
• But, the constitutional principles (interim constitution) required that final constituion contain a SOP between
the 3 branches + appropriate checks & balances on the exercise of power of each of these branches to
“ensure accountability, responsiveness & openness”
o Constitutional Principle VI (Interim Const.)
§ ‘There shall be separation of powers between legislature, executive & judiciary, with
appropriate checks & balances to ensure accountability, responsiveness & openness’
• Specified the purpose for SOP in 1996 Const., but was silent to the exact nature of
the distribution of power.
• Purpose: safeguard & uphold – “accountability, responsiveness & openness”
(Certification of the Constitution of RSA, 1996… para 108).
• Drafters – how the SA model of SOP was to be conceptualised & incorporated.
• Constitutional Court: held that although no explicit reference to SOP in Constitution, it is implicit in the
Const. & is of equal force as an express constitutional provision.
o Evidence: manner in which governmental power is actually distributed primarily between the
legislative, the executive, & the judicial branches.
o Other provisions (evidence to implict inclusion of SOP): regulation of distribution of functions;
identification of appropriate personnel to perform functions; and framework of control & interaction
of branches & personnel therein.
Four principles of modern conceptualization of the separation of powers doctrine
1. Division of governmental power – Division referred to as the trias politica.
2. Separation of functions – distinct areas of responsibility & authority à preventing 1 branch from taking
responsibility of tasks allocated to another branch.
3. Separation of personnel – each branch must have assigned to it specific persons – responsible for
performance or execution of that branch’s function.
4. Checks & balances – 1 branch can be held accountable by another branch, check the exercise of power by
that branch. Certain circumstances – allows 1 branch to veto actions taken by another. Ensures – branches
remain connected in the discharge of their functions & branches hold each other accountable.
• Note: no constitutional system encompasses a full separation of governmental authority – where power is
exercised individually & in isolation from the others.
o NB to interpret & judge SA’s model of SOP with historical experiences & political context in mind.
2
, Legislature
• Overview: Personnel = members of Parliament (NA + NCOP) & function = enact law & holds executive
accountable.
• Strict version of SOP: requires creation of a separate legislature with its own personnel empowered to
exercise its power independently.
• Chpt 4 Const.: slightly less strict separation.
o Const. vests the national legislative authority in Parliament = NA + NCOP.
§ Exercise of legislative authority = power to make laws – incl. amending the Const., making
general laws, & assign/delegate Parliament’s legislative powers.
§ Parliament – exercising legislative authority – only constrained by limits of Constitution.
o Specifies personnel that have powers (mem’s of Parliament) – Constitution empowers them to
regulate their own processes.
§ Mem’s of both houses = parliamentary privelege – for all speeches made in Parliament
Executive authority
• Chpt 5 Const., vests executive authority in the President – who is both head of state and head of the national
executive.
• Personnel: President (as head), Deputy President, ministers & departments
• Ito the Const. the function of the executive: Introduce legislation in the NA, develop policy, implement &
administer law, & make crucial appointments such as members of the judiciary, the Public Protector & the
National Director of Public Prosecutions.
o Enjoys limited law-making powers – empowered to make subordinate legislation.
• President’s duties inter alia;
1. Uphold & defend Constitution as supreme law [EFF1]
2. Appoint & dismiss members of cabinet who serves at his pleasure
§ Pres. is still constrained by provisions of the Constitution that require him or her to select all
but 2 members of Cabinet from the NA.
• Executive under scrutiny of Parliament - Members of cabinet accountable individually & collectively to
Parliament but in fact, pertaining to s55(2), power resides with only NA. Cabinet mem’s – Reports on
matters under their control.
• Const. confers on the NA the ultimate checking power – powers to remove/recall the executive.
o Motion of no confidence: When majority of members of NA have lost confidence in Cabinet or
President.
§ Motion of no confidence in cabinet, or only Dep. Pres. & Ministers, excluding president, by
NA (s102(1)):
• 50% + 1 (majority vote)
• President to reconstitute cabinet
§ Motion of no confidence in President by NA (s102(2))
• 50% + 1 (majority vote)
• President & cabinet to resign
§ Removal of President by NA (s89)
• 2/3 majority
• Grounds:
o Serious violation of Constitution or law
o Serious misconduct
o Inability to perform functions
§ EFF 2 based on s89 - power of impeachment
§ Violation does not mean immediate removal – NA still has discretion
to vote on removal
Overlap in Legislature & Executive
• There isn’t a strict separation of powers between the two.
• ‘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 branches of government from usurping
power from one another. In this sense it anticipates the necessity of unavoidable intrusion of one branch on
3
Study guide 2: SEPARATION OF POWERS AND STRUCTURES OF GOVERNMENT
Table of Contents
1. SEPARATION OF POWERS: INTRODUCTION .........................................................................................................1
PURPOSE & PRINCIPLES OF THE DOCTRINE OF SEPARATION OF POWERS ..................................................................................... 1
SEPARATION OF POWERS & THE 3 BRANCHES OF GOVERNMENT ............................................................................................... 6
2. SEPARATION OF POWERS & THE NATIONAL LEGISLATURE ...................................................................................7
THE NATIONAL ASSEMBLY ................................................................................................................................................. 9
THE NATIONAL COUNCIL OF PROVINCES ............................................................................................................................ 12
FUNCTION OF PARLIAMENT ............................................................................................................................................. 13
3. SEPARATION OF POWERS & THE NATIONAL EXECUTIVE .................................................................................... 21
PRESIDENT OF THE RSA .................................................................................................................................................. 21
THE DEPUTY PRESIDENT AND THE REST OF CABINET .............................................................................................................. 24
1. Separation of powers: Introduction
Prescribed work:
• Chpt 2 in textbook, pg 60-71
• Chpt 3 in textbook
• Ex Parte Chairperson of the Constitutional Assembly: In Re Certification of the Constitution of the Republic of
SA 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) paras 106-113
• South African Association of Personal injury Lawyers v Heath 2001 (1) SA 883 (CC) paras 5-9; 16-46
Purpose & principles of the doctrine of separation of powers
Government’s functions
1. Make laws – make administrative decisions based on legislative authority = legislative authority
2. Apply laws & execute them = executive authority
3. Resolve legal disputes through the judiciary = judicial authority
• As well as place restrictions/‘check’ on exercise of state power – give power to govern but also restrict –
dispersing power through 3 branches
Before 1994
• Origins of SOP – political philosophy of the Enlightenment in 17th century Europe – oversimplification.
• No SOP existed in pre-colonial southern African societies – trad. leaders performed all functions of gov. –
nevertheless expected to consult with an advisory body = allowing for a check on the exercise of power.
• Modern concept of SOP – emerged as way of explanation of English constitutional model developed by John
Locke.
• Locke: constitutional developments in England – ended absolute monarchic power but didn’t want all power
to be placed in parliament. Never thought SOP between executive & judiciary possible.
• Charles Baron de Montesquieu: devised modern concept of SOP – division of governmental power into trias
politica (legislative, executive, & judicial branch).
• Against danger of over-concentration of power in hands of monarch – need to distribute & balance power
became evident.
• Thought of as revolutionary – radical social change.
• Earliest evidence: adoption of US Constitution
1
, • Limiting governmental power – separation of powers primary concern: establishing procedural limits on
exercise of power. How? By ensuring that power is not concentrated in 1 institution/branch, or 1
person/office.
• More predictable & transparent way to prevent tyranny – distribution of power = seeks to limit possibility of
an overconcentration of power in 1 branch & create level of exclusiveness/specialisation of functions.
• Main premise of pre-1994: Check on state power was restricted – difficult to check which branch of
government – therefore no checks – led to erosion of fundamental human rights
Post 1994: Role of Constitution
• Place restrictions/check on exercise of all public powers both in a substantive form and a procedural form.
• Substantively: Restrictions on exercise of public power – achieved through justiciable bill of rights &
constitutional commitment to other values like the rule of law. Eg. BOR – capital punishment – right to life;
rule of law – state cannot do anything that is not sanctioned by the law.
• Procedurally: Restrictions achieved through Separation of Powers (SOP). Eg. Supranational of powers –
assigning different powers & functions on different branches.
• SOP doctrine – limit powers of each branch of gov. It is therefore the basis for an institutional, procedural &
structural division of public power – ensure abuse of power is restricted & public power is exercised wisely.
• SOP is not purely procedural. Procedural = Constitution restricts government power.
o May have substantive effect if a branch of law does not execute their responsibiities.
• Protection of human rights + safeguarding political liberty against abuse of political power.
o Procedural nature of SOP can therefore be seen as having a substantive aim
Doctrine of the separation of powers not found in South African Constitution
• But, the constitutional principles (interim constitution) required that final constituion contain a SOP between
the 3 branches + appropriate checks & balances on the exercise of power of each of these branches to
“ensure accountability, responsiveness & openness”
o Constitutional Principle VI (Interim Const.)
§ ‘There shall be separation of powers between legislature, executive & judiciary, with
appropriate checks & balances to ensure accountability, responsiveness & openness’
• Specified the purpose for SOP in 1996 Const., but was silent to the exact nature of
the distribution of power.
• Purpose: safeguard & uphold – “accountability, responsiveness & openness”
(Certification of the Constitution of RSA, 1996… para 108).
• Drafters – how the SA model of SOP was to be conceptualised & incorporated.
• Constitutional Court: held that although no explicit reference to SOP in Constitution, it is implicit in the
Const. & is of equal force as an express constitutional provision.
o Evidence: manner in which governmental power is actually distributed primarily between the
legislative, the executive, & the judicial branches.
o Other provisions (evidence to implict inclusion of SOP): regulation of distribution of functions;
identification of appropriate personnel to perform functions; and framework of control & interaction
of branches & personnel therein.
Four principles of modern conceptualization of the separation of powers doctrine
1. Division of governmental power – Division referred to as the trias politica.
2. Separation of functions – distinct areas of responsibility & authority à preventing 1 branch from taking
responsibility of tasks allocated to another branch.
3. Separation of personnel – each branch must have assigned to it specific persons – responsible for
performance or execution of that branch’s function.
4. Checks & balances – 1 branch can be held accountable by another branch, check the exercise of power by
that branch. Certain circumstances – allows 1 branch to veto actions taken by another. Ensures – branches
remain connected in the discharge of their functions & branches hold each other accountable.
• Note: no constitutional system encompasses a full separation of governmental authority – where power is
exercised individually & in isolation from the others.
o NB to interpret & judge SA’s model of SOP with historical experiences & political context in mind.
2
, Legislature
• Overview: Personnel = members of Parliament (NA + NCOP) & function = enact law & holds executive
accountable.
• Strict version of SOP: requires creation of a separate legislature with its own personnel empowered to
exercise its power independently.
• Chpt 4 Const.: slightly less strict separation.
o Const. vests the national legislative authority in Parliament = NA + NCOP.
§ Exercise of legislative authority = power to make laws – incl. amending the Const., making
general laws, & assign/delegate Parliament’s legislative powers.
§ Parliament – exercising legislative authority – only constrained by limits of Constitution.
o Specifies personnel that have powers (mem’s of Parliament) – Constitution empowers them to
regulate their own processes.
§ Mem’s of both houses = parliamentary privelege – for all speeches made in Parliament
Executive authority
• Chpt 5 Const., vests executive authority in the President – who is both head of state and head of the national
executive.
• Personnel: President (as head), Deputy President, ministers & departments
• Ito the Const. the function of the executive: Introduce legislation in the NA, develop policy, implement &
administer law, & make crucial appointments such as members of the judiciary, the Public Protector & the
National Director of Public Prosecutions.
o Enjoys limited law-making powers – empowered to make subordinate legislation.
• President’s duties inter alia;
1. Uphold & defend Constitution as supreme law [EFF1]
2. Appoint & dismiss members of cabinet who serves at his pleasure
§ Pres. is still constrained by provisions of the Constitution that require him or her to select all
but 2 members of Cabinet from the NA.
• Executive under scrutiny of Parliament - Members of cabinet accountable individually & collectively to
Parliament but in fact, pertaining to s55(2), power resides with only NA. Cabinet mem’s – Reports on
matters under their control.
• Const. confers on the NA the ultimate checking power – powers to remove/recall the executive.
o Motion of no confidence: When majority of members of NA have lost confidence in Cabinet or
President.
§ Motion of no confidence in cabinet, or only Dep. Pres. & Ministers, excluding president, by
NA (s102(1)):
• 50% + 1 (majority vote)
• President to reconstitute cabinet
§ Motion of no confidence in President by NA (s102(2))
• 50% + 1 (majority vote)
• President & cabinet to resign
§ Removal of President by NA (s89)
• 2/3 majority
• Grounds:
o Serious violation of Constitution or law
o Serious misconduct
o Inability to perform functions
§ EFF 2 based on s89 - power of impeachment
§ Violation does not mean immediate removal – NA still has discretion
to vote on removal
Overlap in Legislature & Executive
• There isn’t a strict separation of powers between the two.
• ‘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 branches of government from usurping
power from one another. In this sense it anticipates the necessity of unavoidable intrusion of one branch on
3
