Separation of powers is not constitutional Kryptonite

By Megan Badenhorst

In 1748 that Baron de Montesquieu published ‘De L’Esprit des Lois’ (the Spirit of the Laws) in which he proposed the doctrine of the trias politica or separation of powers between the executive, legislative and judicial branches of government. This work would have a profound influence on the constitutional development of countries such as the United States and South Africa post 1994. 

Separation of powers is fast becoming the mantra of public officials or public institutions seeking to immunise their activities from oversight by the courts. In many cases reliance on the doctrine is misplaced and unless that reliance is disingenuous there is a fundamental misunderstanding that prompts a discussion of the doctrine itself and of its application by the Constitutional Court (CC).

The separation of powers is intended to prevent the overconcentration of power in any one particular organ of state (GE Devenish A Commentary on the South African Constitution (Durban: LexisNexis 2005) at 11). As Montesquieu wrote: ‘When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty’ (quoted by S Ngcobo ‘South Africa’s Transformative Constitution: Towards an Appropriate Doctrine of Separation of Powers’ (2011) Stellenbosch Law Review 1 at 37). There is no universal model of separation of powers and there is no separation that is absolute (In re Certification of the Constitution of the Republic of South Africa, 1996 1996 (10) BCLR 1253 (CC) at para 108). The CC has recognised that the doctrine is not fixed or rigid and is made subject to checks and balances of many kinds. Much of South Africa’s hybrid legal system is based on English law, which is in essence a parliamentary system where to an extent the executive and the legislature are amalgamated. Given the abuses of power that flowed from such a system in South Africa’s history, the idea of a separation of powers with checks and balances between branches of government was enthusiastically imported into our post-apartheid constitutional order. 

Under the American constitutional system, there is a separation of personnel between the executive and legislative branches of state that is almost complete (I Currie & J de Waal ‘The New Constitutional & Administrative Law’ vol 1 (Cape Town: Juta 2002) at 18). Congress holds legislative power, executive power vests in the President and the Supreme Court holds judicial power. No power may remove another from office and no member of the President’s cabinet may simultaneously be a member of Congress. This application of the doctrine is distinguishable from our own which, for example, does not provide for such a strict separation of personnel. The doctrine is not expressly stated in the final text of the Constitution, despite appearing in the Interim Constitution. It arose in the Constitutional Principles, which governed the drafting of the final text (Glenister v President of the Republic of South Africa and Others 2009 (2) BCLR 136 (CC) para 29). In the South African model of the doctrine, functions are delineated and separated but not always performed by different persons (Devenish op cit at 11). Members of the executive may also be members of the legislature and judicial officers may, from time to time, carry out administrative tasks (South African Association of Personal Injury Lawyers v Heath and Others 2001 (1) BCLR 77 (CC) at para 35). Whether or not there has been an infringement of the doctrine will depend on the circumstances of the case. 

A brief overview of key decisions by the CC demonstrates the already recognised flexibility of the doctrine and gives substance to the indication by the CC, more than 15 years ago, that the South African courts would over time develop a ‘distinctively South African model of separation of powers’ (De Lange v Smuts NO and Others 1998 (7) BCLR 779 (CC) at para 60). In the Certification case, the CC had to determine whether the new text of the Constitution complied with all the Constitutional Principles. The court held the following:

‘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 the branches of government from usurping power from one another. In this sense it anticipates the necessary or unavoidable intrusion of one branch on the terrain of another. No constitutional scheme can reflect a complete separation of powers: The scheme is always one of partial separation.’ (The Certification case at para 109.)

In the Glenister case the CC had to decide whether, in view of the doctrine, courts could set aside a decision of the National Executive or interdict the respondents from pursuing the passage of certain bills through parliament. The court recognised that the power of the courts is not to amend legislation but to pronounce on whether or not legislation is consistent with the Constitution. The courts not only have the right but a duty to intervene and prevent violation of the Constitution. As the ‘ultimate guardians of the Constitution’, the courts have an ‘obligation to ensure that the exercise of power by other branches of government occurs within constitutional bounds’ (see the Glenister case at para 33). The court held that although, as a general principle, a court should not interfere in the legislative process, it accepted that there may be circumstances, although rare, in which a court could intervene in parliamentary proceedings. Demonstrating the judicial restraint that is required of a court under the separation of powers doctrine, the CC declined to intervene where the applicant had not established that its intervention was necessary in the circumstances (Glenister at para 41, 44, 57). The clear message from the judgment appears to be that if the courts’ intervention is necessary, the courts can and will intervene.

That the courts in general, and the CC in particular, are aware of the limits of their judicial review powers is also evidenced in a number of other notable judgments. After declining to order the state to provide expensive dialysis treatment to save a critically ill, unemployed patient in Soobramoney v Minister of Health, KwaZulu-Natal 1998 (12) BCLR 1696 (CC), the Constitutional Court was heavily criticised for its failure to hold the other branches of government sufficiently accountable for their inadequacies. Similarly, in Mazibuko and Others v City of Johannesburg 2010 (3) BCLR 239 (CC), socio economic scholars and other critics denounced what they deemed to be the CC’s callous attitude toward the poor when the court declined to prescribe to the City of Johannesburg the minimum quantity of free basic water it should provide to each person daily. Considering the immense public pressure placed on the CC in these cases, the court’s response hardly reflects an institution that wants to step into the shoes of the executive. 

Although these decisions represent only a small portion of the jurisprudence that has developed around the separation of powers in South Africa, it is abundantly clear that there is no infringement of the doctrine where a court reviews and if necessary invalidates an act of the executive or parliament where that act contravenes the Constitution. It is equally clear that the courts are not trying to take over the role of the executive or the legislature. 

It is also not controversial to accept that some aspects of decision making are more appropriately left to the non-judicial branches of government. The executive makes and executes policy but it is the courts that must then test policies and decisions for constitutional compliance. It is that obligation of the courts that the naysayers of judicial review ignore choosing instead to misapply the doctrine of separation of powers in an attempt to disempower our courts. 

The point is that our courts have a constitutional mandate and it is baseless to argue as a principle that the court may not interrogate the constitutionality of decisions of the executive or of state institutions or officials.  

Megan Badenhorst BA (Hons) (AFDA) LLB (SU) is a candidate attorney at Cliffe Dekker Hofmeyr in Johannesburg.