1 Separation of powers
Briefly on the history of the doctrine of separation of powers
• John Locke was concerned that absolute monarchic power should not be
replaced by absolute parliamentary power.
• Locke warned against the dangers of any one institution, even parliament
having too much power
• French theorist Montesquieu devised the modern concept of separation of
powers that envisaged division of government power into three branches
• It was against the danger of an overconcentration of power in the hands of the
monarch that the need to distribute power became evident
• The principle seeks to limit the power of each individual branch of
government
• The purpose of the doctrine of separation of power is to ensure that power is
not concentrated into one institution
• -this is to prevent abuse of power
• its premised on the understanding that the more transparent way to prevent
tyranny is by distributing power between different branches of government
The 4 principles that are generally accepted as the pillars on which the doctrine of
separation of powers is based are:
• The division of government power across the three branches ( Trias politica)
• Conferring distinct areas of responsibility and authority (functions) on each of
the 3 branches
• Assignment of specific persons who are responsible for the performance of
that branch’s function
• The provision of checks and balances entails that one branch can be held
accountable by the other branches to check the exercise of power by that
branch
The South African experience on the separation of powers
➢ Constitutional principle V1 in the interim constitution required that the final
constitution incorporates a system of separation of powers
➢ There is no universal model of separation of powers (De Lange v Smuts 1998
(3) SA 785 (CC) para 60)
➢ There is no separation that is absolute in a democratic system of government
➢ Although there is no explicit reference or mention to separation of powers in
the constitution it is implicit in the constitution (South African Association of
Personal Injury Lawyers v Heath (2001 (1) BCLR) 77)
1
, ➢ The structure of the constitution clearly makes provision for separation of
powers in terms of its institutional and substantive arrangements (First
Certification of the constitution of Sa judgment para 106-1130
➢ Can infer the implicitness of the doctrine in the constitution from the way
government power is actual distributed between the legislature, the executive
and he judiciary
✓ Section 43 vests the legislative authority of the Republic in Parliament,
provincial legislatures and municipal councils
✓ Section 85 vests the executive authority to the President- President
exercise the authority together with the Cabinet
✓ Section 165 (1) vests the judicial authority in the courts
The counter-majoritarian dilemma
Considering the separation of powers, the Judiciary is empowered to review and set
aside the actions of the other branches of government
➢ Thus, the judiciary wields enormous power even though its members are not
democratically elected
➢ The system of judicial review permits an unelected judiciary to declare
unconstitutional and invalid laws made and actions taken by democratically
elected and accountable members of the legislature and executive
➢ How do we account for the fact that judicial review allows for the invalidation
of laws supported by a majority in a constitutional democracy?
➢ What makes the decision of a few unelected judges carry more weight than
the choices of the majority
These questions are commonly referred to as the counter-majoritarian dilemma or
difficult
The essence of the dilemma is that judicial review, while recognised as having a
legitimate purpose in the main, involves the courts taking undemocratic decisions
that often go against the popular will
In US the system of judicial review has been subject of much controversy among US
scholars
The main attempts to account suitable for counter majoritarianism have elicited three
main types of responses
➢ Some view judicial review as being severe constraint on the participation of
citizens in political decisions affecting them-irreconcilable with the idea of
majoritarian democracy
➢ Others regard encroachments occasioned by judicial review as contributing to
the democratic process
➢ Others attempt to establish a workable interpretative theory in terms of which
judicial review can be justified as legitimizing judicial interventions in a manner
that contributes to the attainment of substantive democracy
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