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
4. SEPARATION OF POWERS & JUDICIAL AUTHORITY..............................................................................................25
COURT STRUCTURE........................................................................................................................................................25
INTRODUCTION..............................................................................................................................................................26
IMPARTIALITY OF JUDGES.................................................................................................................................................26
INDEPENDENCE OF SUPERIOR COURTS...............................................................................................................................27
5. SEPARATION OF POWERS & CHAPTER 9 INSTITUTIONS.......................................................................................29
INDEPENDENCE OF CHAPTER 9 INSTITUTIONS......................................................................................................................30
THE PUBLIC PROTECTOR..................................................................................................................................................31
6. MULTILEVEL GOV. IN SA – NOT PRESCRIBED FOR NOVEMBER EXAM...................................................................32
1. Separation of powers: Introduction
Prescribed work:
Chpt 2 in textbook, pg 60-71
Chpt 3 in textbook
Ex Parte Chairperson of the Consttutonan Assembny: In Re Certicaton of the Consttuton of the Repubnic of
SA 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) paras 106-113
South African Associaton of Personan 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 administratie decisions based on legislatie authority = legislatie authority
2. Apply laws & execute them = executie authority
3. Resolie legal disputes through the judiciary = judicial authority
As well as place restrictonss/check’ on exercise of state power – giie power to goiern but also restrict –
dispersing power through 3 branches
Before 1994
Origins of SOP – politcal philosophy of the Enlightenment in 17 th century Europe – oiersimplifcaton.
No SOP existed in pre-colonial southern African societes – trad. leaders performed all functons of goi. –
neiertheless expected to consult with an adiisory body = allowing for a check on the exercise of power.
Modern concept of SOP – emerged as way of explanaton of English consttutonal model deieloped by John
Locke.
Locke: consttutonal deielopments in England – ended absolute monarchic power but didn’t want all power
to be placed in parliament. Neier thought SOP between executie & judiciary possible.
, Charles Baron de Montesquieu: deiised modern concept of SOP – diiision of goiernmental power into trias
politca (legislatie, executie, & judicial branch).
Against danger of oier-concentraton of power in hands of monarch – need to distribute & balance power
became eiident.
Thought of as reiolutonary – radical social change.
Earliest eiidence: adopton of US Consttuton
Limitng goiernmental power – separaton of powers primary concern: establishing procedural limits on
exercise of power. How? By ensuring that power is not concentrated in 1 insttutonsbranch, or 1
personsoffice.
More predictable & transparent way to preient tyranny – distributon of power = seeks to limit possibility of
an oierconcentraton of power in 1 branch & create leiel of exclusiienesssspecialisaton of functons.
Main premise of pre-1994: Check on state power was restricted – difficult to check which branch of
goiernment – therefore no checks – led to erosion of fundamental human rights
Post 1994: Role of Constitution
Place restrictonsscheck on exercise of all public powers both in a substantie form and a procedural form.
Substantiely: Restrictons on exercise of public power – achieied through justciable bill of rights &
consttutonal commitment to other ialues like the rule of law. Eg. BOR – capital punishment – right to life;i
rule of law – state cannot do anything that is not sanctoned by the law.
Procedurally: Restrictons achieied through Separaton of Powers (SOP). Eg. Supranatonal of powers –
assigning diferent powers & functons on diferent branches.
SOP doctrine – limit powers of each branch of goi. It is therefore the basis for an insttutonal, procedural &
structural diiision of public power – ensure abuse of power is restricted & public power is exercised wisely.
SOP is not purely procedural. Procedural = Consttuton restricts goiernment power.
o May haie substantie efect if a branch of law does not execute their responsibiites.
Protecton of human rights � safeguarding politcal liberty against abuse of politcal power.
o Procedural nature of SOP can therefore be seen as haiing a substantie aim
Doctrine of the separation of powers not found in South African Constitution
But, the consttutonal principles (interim consttuton) required that fnal consttuion contain a SOP between
the 3 branches � appropriate checks & balances on the exercise of power of each of these branches to
“ensure accountability, responsiieness & openness”
o Consttutonal Principle VI (Interim Const.)
/There shall be separaton of powers between legislature, executie & judiciary, with
appropriate checks & balances to ensure accountability, responsiieness & openness’
Specifed the purpose for SOP in 1996 Const., but was silent to the exact nature of
the distributon of power.
Purpose: safeguard & uphold – “accountability, responsiieness & openness”
(Certicaton of the Consttuton of RSA, 1996… para 108).
Drafters – how the SA model of SOP was to be conceptualised & incorporated.
Consttutonal Court: held that although no explicit reference to SOP in Consttuton, it is implicit in the
Const. & is of equal force as an express consttutonal proiision.
o Eiidence: manner in which goiernmental power is actually distributed primarily between the
legislatie, the executie, & the judicial branches.
o Other proiisions (eiidence to implict inclusion of SOP): regulaton of distributon of functons;i
identfcaton of appropriate personnel to perform functons;i and framework of control & interacton
of branches & personnel therein.
Four principles of modern conceptualization of the separation of powers doctrine
1. Diiision of goiernmental power – Diiision referred to as the trias ponitcaa
2. Separaton of functons – distnct areas of responsibility & authority preientng 1 branch from taking
responsibility of tasks allocated to another branch.
3. Separaton of personnel – each branch must haie assigned to it specifc persons – responsible for
performance or executon of that branch’s functon.
, 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 ieto actons taken by another. Ensures – branches
remain connected in the discharge of their functons & branches hold each other accountable.
Note: no consttutonal system encompasses a full separaton of goiernmental authority – where power is
exercised indiiidually & in isolaton from the others.
o NB to interpret & judge SA’s model of SOP with historical experiences & politcal context in mind.
Legislature
Oieriiew: Personnel = members of Parliament (NA � NCOP) & functon = enact law & holds executie
accountable.
Strict iersion of SOP: requires creaton of a separate legislature with its own personnel empowered to
exercise its power independently.
Chpt 4 Const.: slightly less strict separaton.
o Const. iests the natonal legislatie authority in Parliament = NA � NCOP.
Exercise of legislatie authority = power to make laws – incl. amending the Const., making
general laws, & assignsdelegate Parliament’s legislatie powers.
Parliament – exercising legislatie authority – only constrained by limits of Consttuton.
o Specifes personnel that haie powers (mem’s of Parliament) – Consttuton empowers them to
regulate their own processes.
Mem’s of both houses = parliamentary priielege – for all speeches made in Parliament
Executive authority
Chpt 5 Const., iests executie authority in the President – who is both head of state and head of the natonal
executie.
Personnel: President (as head), Deputy President, ministers & departments
Ito the Const. the functon of the executie: Introduce legislaton in the NA, deielop policy, implement &
administer law, & make crucial appointments such as members of the judiciary, the Public Protector & the
Natonal Director of Public Prosecutons.
o Enjoys limited law-making powers – empowered to make subordinate legislaton.
President’s dutes inter alia;i
1. Uphold & defend Consttuton as supreme law [EFF1]
2. Appoint & dismiss members of cabinet who series at his pleasure
Pres. is stll constrained by proiisions of the Consttuton that require him or her to select all
but 2 members of Cabinet from the NA.
Executie under scrutny of Parliament - Members of cabinet accountable indiiidually & collectiely to
Parliament but in fact, pertaining to s55(2), power resides with only NA. Cabinet mem’s – Reports on maters
under their control.
Const. confers on the NA the ultmate checking power – powers to remove/recall the executve.
o Moton of no confdence: When majority of members of NA haie lost confdence in Cabinet or
President.
Moton of no confdence in cabinet, or only Dep. Pres. & Ministers, excluding president, by
NA (s102(1)):
50% � 1 (majority iote)
President to reconsttute cabinet
Moton of no confdence in President by NA (s102(2))
50% � 1 (majority iote)
President & cabinet to resign
Remoial of President by NA (s89)
2s3 majority
Grounds:
o Serious iiolaton of Consttuton or law
o Serious misconduct
o Inability to perform functons
EFF 2 based on s89 - power of impeachment
Violaton does not mean immediate remoial – NA stll has discreton
to iote on remoial
, Overlap in Legislature & Executive
There isn’t a strict separaton of powers between the two.
/The principle of separaton of powers, on the one hand, recognises the functonal independence of
branches of goiernment. On the other hand, the principle of checks and balances focuses on the desirability
of ensuring that the consttutonal order, as a totality, preients branches of goiernment from usurping
power from one another. In this sense it antcipates the necessity of unaioidable intrusion of one branch on
the terrain of another. No consttutonal scheme can refect a complete separaton of powers: the scheme is
always one of partal separaton’ – Certfcaton case (CC) para 109.
o Functon: Parliament (legislature) has functon of making law, but executie can deielop &
implement policy & implement law.
o Personnel: Deputy president & ministers remain part of parliament.
o Is accountability weakened as a result? No.
Oierlap in personnel – apart from the President & a maximum of 2 other mem’s of Cabinet – all members of
the executie required to serie as mem’s of NA.
o Connecton rooted in & contnuaton of the Westminster traditon of parliamentary goiernment
o Argued that this oierlap of personnel should be judged ito the injuncton in Consttutonal Principle
VI that there be checks & balances between the branches.
o Close inioliement of the executie in the legislatie process – promotng efficiency & accountability
between the 2 branches – goierning becoming more complicated with an eier-increasing need for
regulaton.
o Mem’s of parliament may not always haie expertse for complex decisions, therefore rely on
executie to formulate policy & translate policies into draft legislaton that is then scrutnised by
legilsature.
In Executve Councin of the Western Cape Legisnature & Others v President of the RSA & Others:
o Powers to President – to amend the Local Goiernment Transiton Act 209 of 1993, by proclamaton.
o CC: accepted act of goierning would require some leiel of delegaton of law-making power to the
executie.
o Decision: Delegaton = unconsttutonal. Separate concurring judgments, but common thread was
while delegaton of legislatie power is permissible, the doctrine of SOP demands limits to nature
and extent of power to be delegated by Parliament to the executie. Judges failed to agree on extent
but agreed that Parliament could not delegate its plenary powers to makesamend a statute, to the
executie branch.
Judiciary
Personnel: Judges & magistrates
Functon: Interpret the law & adjudicate legal disputes, declare law or conduct of other branches inialid.
Absolute separaton in personnel & functons between legislature & executie on one hand & judiciary on
the other.
o Fundamental principle of the SOP doctrine in a consttutonal state.
o South African Associaton of Personal Injury Lawyers v Heath 2000 (CC) [5-9] & [16-46] -
Appointment of judge to head Special Iniestgatie Unit - because cannot expect a sitng judge to
be the head of the iniestgatie unit as they perform too many executie functons.
Chpt 8 Const., iests judicial authority in the courts – establishing a hierachy of courts (CC SCA HC
MC).
o Primary functon of courts: adjudicaton of legal disputes, interpretaton & applicaton of the Const.
o Courts and their consttutonal jurisdicton – the courts’ powers of judicial reiiew.
Note that s170 Const. prohibits Magistrates’ Courts (and lower courts) from reiiewing the
consttutonality of legislaton or conduct of the Pres.
o Judicial reiiew – power to declare any lawsconduct unconsttutonal.
o Courts therefore haie great power to check exercise & abuse of power by legislatie & executie
branches
o Const. of RSA makes proiision for judicial reiiew – giiing courts (CC, SCA & HC) power to declare
lawssconduct unconsttutonal.
Appointment of judges:
