, CSL2601 Assignment 1
Semester 2 2025
DUE August 2025
Use this document as a guide and for references to answer your assignment
(3 different essays given)
Guardrails of Democracy: Checks and Balances in South Africa’s
Constitutional Order
Introduction
The principle of separation of powers underpins South Africa’s constitutional
democracy. Though not expressly articulated in a single clause of the 1996 Constitution,
it is entrenched through Constitutional Principle VI of the Interim Constitution—and
the Constitutional Court affirmed the doctrine’s firm establishment during the 1996
Certification judgment. In South Africa’s model, the doctrine manifests through partial
separation, shaped to balance accountability, responsiveness, and effective governance,
while avoiding rigid compartmentalization.
Central to this design is the notion of checks and balances: each government arm must
have capacity both to perform its functions and to restrain or control the excesses or
improper conduct of the others. This inter-branch accountability is tested continually
through political dynamics, institutional tensions, and judicial interventions.
This essay first outlines how each branch—in theory and practice—engages in checks on
the others; then examines five illustrative contemporary cases highlighting both the
functioning and fragility of these mechanisms, before concluding with reflections on
evolving tensions.
I. How Each Branch Gives Effect to Checks and Balances
The Legislature
Oversight over the Executive
o The National Assembly can pass motions of no confidence to remove the
President or executive government. In UDM v Speaker (2017), the
Constitutional Court upheld the Speaker’s constitutional authority to allow a
, secret ballot on a no-confidence motion, enhancing the legislature’s
accountability tools against executive power.
o Parliament must also implement remedial actions ordered by Chapter 9
institutions like the Public Protector. In EFF v Speaker (Nkandla,
2016), Parliament was required to hold the President accountable for
ignoring the Public Protector's remedial findings, reinforcing legislative
responsibility.
Legislation and Public Participation
o The participatory democracy dimension empowers the citizenry—and
Parliament—in safeguarding legislative integrity. In Doctors for Life v
Speaker (2006), the Constitutional Court held that Parliament must
enable meaningful public participation in legislation; legislative failures
(in that case, the National Council of Provinces’ failure) rendered two
Acts invalid.
The Executive
Implementation and Response
o The executive interprets and applies legislation, carries out policy, and
should do so in a constitutionally compliant manner. The President is
limited by the Constitution in that certain actions may be reviewable.
The Certification judgment (1996) held that even pardon powers are
subject to review if used in a way undermining the separation of powers
Law Library.
Appointments and Administrative Independence
o The executive’s appointive powers—e.g., over Cabinet and
prosecutorial leadership—can be exercised under constitutional
scrutiny. While the President appoints Ministers and the National
Director of Public Prosecutions (NDPP), such appointments must
uphold independence and legality.
The Judiciary
Judicial Review and Constitutional Guardianship
o Courts can invalidate unlawful acts of the executive or legislature,
protecting constitutional supremacy. The judiciary thus serves as a
critical check on misuse of authority by virtue of its power of review.
o However, courts must be cautious not to encroach excessively—this
tension was notably expressed by Mogoeng CJ in criticizing perceived
overreach by the judiciary in stakeholder domains Journals.co.za.
Semester 2 2025
DUE August 2025
Use this document as a guide and for references to answer your assignment
(3 different essays given)
Guardrails of Democracy: Checks and Balances in South Africa’s
Constitutional Order
Introduction
The principle of separation of powers underpins South Africa’s constitutional
democracy. Though not expressly articulated in a single clause of the 1996 Constitution,
it is entrenched through Constitutional Principle VI of the Interim Constitution—and
the Constitutional Court affirmed the doctrine’s firm establishment during the 1996
Certification judgment. In South Africa’s model, the doctrine manifests through partial
separation, shaped to balance accountability, responsiveness, and effective governance,
while avoiding rigid compartmentalization.
Central to this design is the notion of checks and balances: each government arm must
have capacity both to perform its functions and to restrain or control the excesses or
improper conduct of the others. This inter-branch accountability is tested continually
through political dynamics, institutional tensions, and judicial interventions.
This essay first outlines how each branch—in theory and practice—engages in checks on
the others; then examines five illustrative contemporary cases highlighting both the
functioning and fragility of these mechanisms, before concluding with reflections on
evolving tensions.
I. How Each Branch Gives Effect to Checks and Balances
The Legislature
Oversight over the Executive
o The National Assembly can pass motions of no confidence to remove the
President or executive government. In UDM v Speaker (2017), the
Constitutional Court upheld the Speaker’s constitutional authority to allow a
, secret ballot on a no-confidence motion, enhancing the legislature’s
accountability tools against executive power.
o Parliament must also implement remedial actions ordered by Chapter 9
institutions like the Public Protector. In EFF v Speaker (Nkandla,
2016), Parliament was required to hold the President accountable for
ignoring the Public Protector's remedial findings, reinforcing legislative
responsibility.
Legislation and Public Participation
o The participatory democracy dimension empowers the citizenry—and
Parliament—in safeguarding legislative integrity. In Doctors for Life v
Speaker (2006), the Constitutional Court held that Parliament must
enable meaningful public participation in legislation; legislative failures
(in that case, the National Council of Provinces’ failure) rendered two
Acts invalid.
The Executive
Implementation and Response
o The executive interprets and applies legislation, carries out policy, and
should do so in a constitutionally compliant manner. The President is
limited by the Constitution in that certain actions may be reviewable.
The Certification judgment (1996) held that even pardon powers are
subject to review if used in a way undermining the separation of powers
Law Library.
Appointments and Administrative Independence
o The executive’s appointive powers—e.g., over Cabinet and
prosecutorial leadership—can be exercised under constitutional
scrutiny. While the President appoints Ministers and the National
Director of Public Prosecutions (NDPP), such appointments must
uphold independence and legality.
The Judiciary
Judicial Review and Constitutional Guardianship
o Courts can invalidate unlawful acts of the executive or legislature,
protecting constitutional supremacy. The judiciary thus serves as a
critical check on misuse of authority by virtue of its power of review.
o However, courts must be cautious not to encroach excessively—this
tension was notably expressed by Mogoeng CJ in criticizing perceived
overreach by the judiciary in stakeholder domains Journals.co.za.
