In this document you will find everything you need with regards to Separation of Powers. It includes class notes, slide show notes, textbook readings and in depth case discussion as needed.
Emphasis on important aspects for test purposes.
1B: Separation of Powers & Structures of the South African Government
I. SOP: Introduction
Government: 3 Main functions:
- Legislative Authority Make laws
- Executive Authority Apply laws & execute them
- Judicial Authority Resolve legal disputes
Aim of SOP:
- Restriction / check on exercise of state power
o = implication of constitutionalism awarding but restraining power
- Seeks to limit powers of each branch of government
- Power distributed amongst the branches and not centralized in one specific
body
o = distribution of power
- 3 branches act as checks on each other
- Branch acts outside its bounds = can be challenged
- Role of CT = ensures power cannot be abused
Role of the Constitution:
- Awards power, but places restrictions on the exercise of all public powers
- Done in 2 ways:
o Substantively via the BOR and other values; ROL
o Procedurally through SOP = important mechanism to ensure division of
power and prevention of unchecked abuse of power
- Doctrine of SOP not found in CT
o Not explicitly refereed to but still provided for by the structure of the CT
and confirmed by CC
o Constitutional Principle VI = ‘there shall be separation of powers
between legislature, executive and judiciary with appropriate checks
and balances to ensure accountability, responsiveness and openness’
o CC: ‘not a rigid / universal model of SOP’
- Structure of CT: implicitly provides for SOP
o Chapter 4: Legislature
o Chapter 5: Executive
o Chapter 8: Judiciary
,4 Principles of SOP:
- Division of governmental power:
o Trias Politica
- Separation of functions:
o Each government branch = specific powers conferred onto it and
specific obligations which need to be fulfilled
- Separation of personnel:
o Each branch = different persons which fulfil branch’s specific functions
- Checks and balances:
o To ensure that one branch does not have too much power
o Accountability, responsiveness and openness
- Centralized power = problematic
3 Branches:
Legislature:
- Personnel:
o Members of Bi-cameral parliament (NA + NCOP)
- Function:
o Enacts law
o Holds executive accountable
Executive:
- Personnel:
o President as Head
o Deputy President
o Ministers
o Departments
- Function:
o Make policy
o Implement and administer law
o Make crucial appointments (Judges)
* Not a strict SOP between legislature and judiciary
- Function:
o Parliament makes law
o Executive can develop and implement law and policy
- Personnel:
o Deputy President and Ministers remain part of legislature and
executive
- First Certification Judgement:
, o CH 6: has to be SOP with specific provision for checks and balances
did not provide for rigid and absolute separation between legislature
and executive but must be separated from judiciary
o = independent and impartial
Judiciary:
- Personnel:
o Judges & Magistrates
- Function:
o Interpret law
o Adjudicate legal disputes
o Declare law or conduct of other branches as invalid
* Absolute SOP from Legislature & Executive
South African Association of Personal Injury Lawyers v Heath:
- Court highlights importance of SOP between executive and judiciary
- President established special investigative unit to investigate allegations of
unlawful conduct damaging to state institutions, corruption and
maladministration
- President appointed a judge as head of investigative unit
- SOP then questioned:
o Judge as head
o Granted powers not usually awarded to a judge
- Court noted that investigative unit has extensive investigative powers
o Aligned to powers which normally provided to the executive –
performed by police, NPA not usually awarded to judicial authority
- Draws clear distinction between executive functions and judicial functions
- Court:
o Head of SIU and his functions = related to recovering of money related
to corruption, in position to claim money back through litigation
In this instance: judge cannot distance themselves from actions
of investigators = partisan overlap
Inconsistent with what is normally understood to be part of
judiciary = has an effect on independence and impartiality of the
judiciary
- Appointing judge as head of SIU = declared invalid with emphasis on clear
and distinct separation between judiciary and executive
, Mwelase and Others v DG for Department of Rural Development and Land Reform
and Another:
- Application for leave to appeal against judgement by SCA
- = Failure by Department of Rural Development and Land Reform to process
land tenant applications submitted in terms of Land Reform Act (LTA)
o Resulted in Land Claims Court (LCC) to order appointment of Special
Master for labour tenants to assist Department in implementation of
LTA
o SCA affirmed most of LCC’s judgement but upheld Department’s
appeal against the appointment of Special Master
- = Contempt application brought against Master of Rural Development and
Land Reform
o LLC; applicants did not establish that Minister was in contempt of its
order
o SCA unanimously dismissed the appeal
- Applications under LTA with Department before cut-off date (31 March 2001),
but they failed to be processed
o SCA & LCC found violation of Ss 10, 25(6), 33, 195 & 237 CT
- Q:
o Whether the order LCC granted constitutes judicial overreach wrt
extent of LCC’s power to make and implement remedies
- Applicants approached court in July 2013 regarding the failure to process
applications
o 2016 LCC ordered appointment of Special Master of Labour Tenants,
to assist LCC monitoring the DG and Department’s implementation of
the Act
- Department & DG appealed against such appointment in SCA:
o SCA considered concept of Special Master as inapposite and foreign
o LCC overreached judicial role
o Dissenting judgement: Special Master within LCC’s remedial powers
- CC:
o Appeal against Special Master and SCA contempt findings (restoration
of LCC order)
o Majority:
Department has manifested misapprehension of statutory duties
Showed unresponsiveness & refusal to account those
dependent on it (land claims)
o Doctrine of SOP: does not imply rigid or static conception of strictly
demarcated functional roles
3 branches share commitment to CT (justice, dignity and
equality)
Shared enterprise of fulfilling practical constitutional promises to
Republic’s most vulnerable
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