The separation of powers

JD van der Vyver"

Of all the constitutional principles proposed by the Technical Committee on Con-

stitutional Issues in its Fourth Supplementary Report of 26 July 1993, the one
proclaiming 'a separation of powers between the legislature, executive and
judiciary, with appropriate checks and balances to ensure accountability, respon-
siveness and openness' will perhaps bring about the most radical changes in
the structures of government in South Africa.1
The following analysis focuses upon the concept of separation of powers in its
proper historical context and in the light of its application and violation in the
constitutional systems of the United States of America and the United King-
dom. In order to define and evaluate the impact of the constitutional principle
under consideration on the new South Africa, the status quo in South Africa
will be subjected to close scrutiny. The analysis proposes to show that the United
States comes closest to upholding the notion of separation of powers, while
the constitutional systems of the United Kingdom and South Africa do not even
remotely comply with its most basic demands.

Separation of powers defined

The first modern design of the doctrine of separation of powers is to be found
in the constitutional theory of John Locke (1632-1704). His classification of po-
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litical power2 comprised the legislative power of making laws, the executive
power of administering the affairs of state (which included the power of adju-
dication) and the federative power that relates, broadly speaking, to foreign
relations.3
The current conception of the separation of powers emanated from the exposi-
tion of that principle by Charles Louis de Secondat, Baron de la Brdde et de
Montesquieu (1689-1755). In the pertinent chapter of his well-known work,
L 'Esprit des Loix (1748),4 Montesquieu purported to describe the British constitu-
tional system of the 18th century5 so that it might serve as an example to
France of a political dispensation founded on liberty - which, according to him,
was the supreme objective of a political society. However, Montesquieu was
a poor observer, because the British constitutional system did not comply then,

* BComm HonsBA LLD LLD(hc). Professor of Law, University of the Witwatersrand.

1 Paragraph ΠΙ of the first schedule to the fourth supplementary report on constitutional prin-
ciples of the Technical Committee on Constitutional Issues to the Negotiating Council
(1993-07-26).
2 Two treatises of civil government (1690) (ed Gough 1946) 2.12.143-8.
3 Ibid 1.12.146, where he defined the latter power as 'the power of war and peace, leagues
and alliances, and all transactions with all persons and communities without the common-
wealth ...'.
4 Edition published in Paris in 1877, 11.6. The title of the chapter is 'De la constitution
d'Angleterre'.
5 Montesquieu visited England in 1732.

177
 178 1993 S Publiekreg/Public Law

nor does it today, with the basic norms included in the idea of separation of
powers. Montesquieu's erroneous analysis of the British system, nevertheless,
came to be generally accepted as a political ideal worth pursuing.
Montesquieu distinguished the three basic functions of state authority, namely
the legislative, executive and judicial functions, and he added that these three
functions ought to vest in three distinct governmental organs with, in each in-
stance, different office bearers. He wrote:6
All would be in vain if the same person, or the same body of officials, be it the nobili-
ty or the people, were to exercise these three powers: that of making laws, that of
executing the public resolutions, and that of judging crimes or disputes of individuals.

The last word on separation of powers was not spoken by Montesquieu him-
self. The idea propounded by him eventually developed into a norm comprising
four basic principles:7
(a) The principle of trias politico, which simply requires a formal distinction to
be made between the legislative, executive and judicial components of state
authority.
(b) The principle of the separation of personnel, which requires that the power
of legislation, administration and adjudication be vested in three distinct
organs of state authority and that each one of those organs be staffed with
different officials and employees; that is to say, a person serving in the one
organ of state authority is disqualified from serving in any of the others.
(c) The principle of the separation of functions, which demands that every or-
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gan of state authority be entrusted with its appropriate function only; that
is to say, the legislature ought only to legislate, the executive to confine its
activities to administering the affairs of state, and the judiciary to restrict
itself to the function of adjudication.
(d) The principle of checks and balances, which represents the special contri-
bution of the United States to the notion of separation of powers, and which
requires that each organ of state authority be entrusted with special powers
designed to keep a check on the exercise of functions by the others in order
that the equilibrium in the distribution of powers may be upheld.
The objective of the separation of powers is to curtail the exercise of political
power. Montesquieu said in this regard:8

6 (Note 4) 11.6: 'Tout seroit perdu si le meme homme, ou le meme corps des principaux,
ou des nobles, ou du peuple, exeroient ces trois pouvours: celui de faire des loix, celui d'ex-
<§cuter les resolutions publiques, et celui de juger les crimes ou les differends des particuliers'.
7 See Vile Constitutionalism and the separation of powers (1967) 13.
8 (Note 4) 11.6 (translation in text by Thomas Nugent The spirit of the laws by Montesquieu in-
troduction by Franz Neumann (1949) 151-2): 'Lorsque dans la meme personne ou dans le
meme corps de magistrature la puissance legislative est r^unie k la puissance exdcu trice,
il n'y a point de liberty parce qu'on peut craindre que le meme monarque ou le meme si-
nat ne fasse des lois tyranniques pour les ex&uter tyranniquement. Π n'y a point encore
de liberti si la puissance de juger n'est pas s^parie de la puissance legislative et de l'exicu-
trice. Si elle itait jointe k la puissance legislative, le pouvoir sur la vie et la liberty des citoyens
serait arbitraire; car le juge serait legislateur. Si elle etait jointe k la puissance exicutrice,
le juge pourrait avoir la force d'un oppresseur'.
 The separation of powers 179

When the legislative and executive powers are united in the same person, or in the
same body of magistrates, there can be no liberty; because apprehensions may arise,
lest the same monarch or senate should enact tyrannical laws, to execute them in a
tyrannical manner.
Again, there is no liberty if the judicial power be not separated from the legislative
and executive. Were it joined with the legislative, the life and liberty of the subject
would be exposed to arbitrary control; for the judge would be then the legislator. Were
it joined to the executive power, the judge might behave with violence and oppression.

Sir William Blackstone echoed these sentiments:9

In all tyrannical governments the supreme magistry, or the right both of making and
of enforcing the laws, is vested in one and the same man, or one and the same body
of men; and wherever these two powers are united together, there can be no public
liberty. The magistrate may enact tyrannical laws, and execute them in a tyrannical
manner, since he is possessed in quality of dispenser of justice, with all the power
which he as legislator thinks proper to give himself. But, where the legislature and
executive authority are in distinct hands, the former will take care not to entrust the
latter with so large a power, as may tend to the subversion of its own independence,
and therewith of the liberty of the subject ....

He continued further:10
In this distinct and separate existence of the judicial power, in a particular body of
men, nominated indeed, but not removable at pleasure, by the crown, consists one
main preservative of the public liberty; which cannot subsist long in any state, unless
the administration of common justice be in some degree separated from both the legis-
lative and also from the executive power. Were it joined with the legislative, the life,
liberty, and property, of the subject would be in the hands of arbitrary judges, whose
decisions would be then regulated only by their own opinions, and not by any fun-
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damental principles of law; which, though legislators may depart from, yet judges
are bound to observe. Were it joined with the executive, this union might soon be
an over balance for the legislative ....
According to Dicey, the doctrine rests on 'the necessity ... of preventing the
government, the legislature and the courts from encroaching upon one another's
province'.11
Attempts at implementing a separation of powers have to date been few and
far between. The constitutional system of the United States perhaps comes
closest to the ideal that should, according to the Montesquieuan theory, govern
the distribution of political power. Neither the constitutional dispensation of
the United Kingdom nor of South Africa complies in any way with the demands
of the doctrine of separation of powers.

Separation of powers in the United States

In the United States of America, the formal distinction between the legislative,
executive and judicial components of state authority, as required by the prin-
ciple of trias politico is made in every one of the fifty-one jurisdictions; that is,
in the federal constitutional structure of the United States and in each one of
the fifty states within the union.

9 Commentaries on the laws of England in four books (7 ed 1775) vol I at 146.

10 Ibid 269.
11 Introduction to the study of the law of the constitution (1959) 337.
 180 1993 S Publiekreg/Public Law

In every one of the fifty-one jurisdictions a separation of personnel is also strictly

adhered to. The President of the United States and members of his cabinet are
accordingly not permitted to belong to any of the houses of Congress or to be
judges. Members of Congress, likewise, lack the capacity to serve in the execu-
tive or judiciary, and judges are disqualified from all legislative and executive
bodies. The same principle applies in relation to a state Governor and his execu-
tive, the state legislatures and judges serving in state courts.
The principle of separation of functions is, however, not strictly upheld in the
United States. The separation of functions has been undermined by the system
of checks and balances, which is an invention of the American constitutional
entrepreneurs and should, in fact, be seen as an outstanding feature of the
United States Constitution.
Congress has the power to make laws, but this power is subject to executive
and judicial control. The executive exercises checks and balances in respect of
the legislature through the qualified veto of the President.12 When a bill has
been passed in identical form by both houses of Congress, it is presented to
the President for approval, and should the President elect to veto the bill it may
again be presented to Congress but will only become law if (after a presidential
veto) both houses approve the bill with a two-thirds majority. The judiciary ex-
ercises checks and balances in respect of the legislature through the power of
procedural and substantive review of the Supreme Court.13 Enactments of the
legislature can be tested by the Court against provisions of the Constitution and
the Court has the power to invalidate such enactments if it finds them to be
unconstitutional.
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It should be noted that the qualified veto of the President amounts to a legisla-
tive function's being performed by the head of the executive and thus consti-
tutes a violation of the principle of the separation of functions. The power of
substantive review exercised within the framework of the system of checks and
balances, on the other hand, constitutes a judicial function exercised by the
judiciary and is, consequently, in keeping with the separation of functions which
goes to show that a system of checks and balances does not necessarily require
powers that violate the notion of separation of powers.
The function of the executive is to administer the affairs of state, but its powers
in this regard are subject to control by the legislature and the judiciary. The .
legislature exercises checks and balances in respect of the executive in that the
President's power to enter into treaties and to appoint ambassadors, public
ministers, consuls, judges of the Supreme Court and other executive officials
is subject to approval by the Senate. 14 The judiciary exercises checks and
balances in respect of the executive through the power of the Supreme Court
to pronounce upon the constitutionality of administrative acts.
Here, again, the control exercised by the legislature in respect of administra-
tive functions of the President constitutes an infringement of the principle of

12 US Constitution art I sec 7.

13 The power of the Court to test Congressional legislation was confirmed in the landmark
decision in Marbury ν Madison 1 Cranch 137 (1803).
14 US Constitution art Π sec 2. Treaties must be approved by two-thirds of the senators present
at the session where the matter is being considered.
 The separation of powers 181

the separation of functions: approval of treaties and executive appointments

is by nature an executive act performed by the legislature. Judicial review,
however, is a judicial function exercised by the judiciary and therefore conforms
to the doctrine of separation of functions.
The power of adjudication is essentially a function of courts of law, but is exer-
cised in the United States subject to control by the legislature and the execu-
tive. The competence of Congress to circumscribe the powers of the judiciary
and to lay down the laws to be applied by the courts may be seen as checks
and balances at the instance of the legislature pertaining to the judicial branch
of state authority. The power of the President and the Senate to appoint
judges15 constitutes the contribution of the executive and a further contribu-
tion of the legislature to keeping the judiciary in check.
When Congress circumscribes the powers of the judiciary and lays down the
laws, it is performing a function that belongs to the domain of law-making, but
approval of a judicial appointment constitutes an executive act performed by
the legislature. The appointment of judges by the President is again an execu-
tive act performed by the executive.
Certain checks and balances provided for in the American constitutional sys-
tem therefore coincide with the notion of the separation of functions, others
do not. Gerald Gunther accurately summarised the state of affairs in the United
States that apply in this regard:16
The makers of the Constitution, influenced not only by their own experiences but
also by theorists such as Montesquieu, consciously provided for allocation of nation-
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al authority among the executive, legislative and judicial branches ... But, as an exam-
ination of the constitutional provisions readily reveals, separation was not intended
to be total and airtight.

This is not the case as far as the new South Africa is concerned. In the United
States certain powers of the legislature, executive and judiciary that deviate from
the demands of a separation of functions were written into the Constitution.
Those powers are therefore valid and enforceable in spite of their being in con-
flict with principles included in the notion of separation of powers. As far as
South Africa is concerned, the requirement that '[t]here shall be a separation
of powers ...' is proclaimed in mandatory terms and without exception; and
the constitutional principles of which this demand is a part are absolutely bind-
ing on the constitution-making body. Section 2(1) of chapter 5 of the Draft Con-
stitution of the Republic of South Africa, as proposed by the Technical Com-
mittee on Constitutional Issues, provides:
In undertaking its task of total revision of the present Constitution and the drafting
of a new constitutional text, the CMB shall adhere and give effect to the Constitu-
tional Principles contained in Schedule 1.

The Constitutional Court is given jurisdiction to decide whether any constitu-

tional proposal, if adopted by the constitution-making body, would conform
to the constitutional principles (s 2(2)); no constitutional provision will come
into effect, unless the Constitutional Court certifies that all provisions of the

15 US Constitution art II sec 2.

16 Constitutional law: cases and materials (1980) 384.
 182 1993 S Publiekreg/Public Law

new constitution do indeed give effect to the constitutional principles (s 2(3)),

and the decisions of the Constitutional Court on questions pertaining to the
compatibility of constitutional provisions with the constitutional principles will
be 'final and binding' and no court of law shall have jurisdiction to pronounce
upon any constitutional provision sanctioned by the Constitutional Court in view
of the constitutional principles (s 2(4)).
All checks and balances built into the new constitution that would require a
particular branch of state authority to perform a function which per definition
is not of the kind which that branch of the state structure is required or authorised
to perform within the meaning of the separation of powers, will therefore be
null and void. In the new South Africa, the State President can therefore not
be entrusted with a qualified veto in respect of parliamentary legislation, and
a provision requiring any house of the legislature to ratify executive acts or ap-
pointments, would likewise be impermissible.

Separation of powers in the United Kingdom

Several eminent British constitutional lawyers commended constitutional ar-
rangements based on a separation of powers. As far as the older generation
is concerned, the names of Sir William Blackstone,17 William Paley,18 John
Stuart Mill19 and Henry Sidgwick20 come to mind in this regard; and from
amongst contemporary writers, reference may be made to Edith Henderson,
who said: 21
This threefold division of labor, between a legislator, an administrative official, and
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an independent judge, is a necessary condition for the rule of law in modern society
and therefore for democratic government itself.

Wade and Bradley in the same trend referred to 'the contribution which the:
doctrine has made to the maintenance of liberty and the continuing need by
constitutional means to restrain abuse of governmental power' , 2 2
Separation of power is, however, not part of the British constitutional make-
up. Wade and Phillips, commenting on the theory of Montesquieu, accurately
stated: '...in England it means little more than an independent judiciary'.23 A
Canadian constitutional lawyer observed: '... neither in theory nor in practice,

17 (Notes 9 and 10).

18 The principles of morals and political philosophy (1829) 400: 'The first maxim of a free state is,
that the laws be made by one set of men, and administered by another; in other words,
that the legislative and judicial characters be kept separate'.
19 Considerations on representative government (1882) ch 14. It should be noted that Mill included
judicial powers under the executive branch of government and that one must read between
the lines of this chapter to ascertain a separation of the powers of legislation and
administration.
20 The elements of politics (1897) ch 19 at 356: '...the work of government should be distributed
under three main heads, as Legislative, Executive, and Judicial, each division being allot-
ted to a separately constituted organ'.
21 Foundations of English administrative law (1963) 5.
22 Constitutional and administrative law (1985) 50.
23 Wade and Bradley Constitutional law (1970) 25; and see also Wade and Bradley (n 22) at 58:
'In the absence of a written constitution there is no formal separation of powers in the United
Kingdom'.
 he separation of powers 183

,vas it ever part of the English constitution';24 and an American commentator

remarked:25
... few English'writers have given attention to the formal classification and separa-
tion of governmental powers. This has been specially true since it has been more clearly
recognized that the doctrine of three coordinate and independent organs was not ap-
plicable to the British government.
The formal classification of state authority according to the powers of legisla-
tion, administration and adjudication (fries politico), together with an indepen-
dent judiciary, are about as far as the British constitutional system goes in fol-
lowing the separation of powers dictate. Yardley listed nine 'principal factors
which in the United Kingdom render it impossible to insist that any strict sepa-
ration of powers exists'. 26 Yardley's examples are rearranged here to place
those that address the principle of a separation of personnel and those perti-
nent to the separation of functions in separate baskets.
Having conceded that the British constitutional system does distinguish formally
between the legislative, executive and judicial branches of state authority, it re-
mains, first, to consider the separation of personnel. This component of the sepa-
ration of powers is violated in the United Kingdom in the following instances:
(a) The monarch serves in all three branches of state authority: she is head of
the executive government; she constitutes the 'third house of Parliament'
in the sense of having to add her signature to all bills passed by the House
of Commons and the House of Lords before such bills can become law; and
as 'the fountain of justice', she is presumed to be present in all courts of
law, prosecutions in criminal cases are conducted in her name, and she
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exercises the prerogative of mercy in respect of convicted persons.

(b) Members of the Cabinet (an executive body) are required to be or to become
members of either the House of Commons or the House of Lords (consti-
tuent bodies of the legislature).27
(c) The Lord Chancellor is chairperson of the House of Lords in its capacity
as component of the legislature and as a court of appeal,28 and he is also
a member of the government.

24 Finkelman 'Separation of powers: a study in administrative law' 1963 The University of Toronto
LJ 313 at 319.
25 Fairlie "The separation of powers' 1923 Michigan LR 393 at 415.
26 Yardley Introduction to British constitutional law (1978) 69; and for those 'principal factors'
see 70-1.
27 Yardley (n 26) 70 states that this is 'usually' the case and that it is not 'an absolute rule .
He mentions two examples to show that a member of the cabinet need not necessarily also
be a member of Parliament: Sir Frank Soskice maintained his ministerial office of Attorney-
General following his defeat in the 1950 elections, but did subsequently in a by-election
gain a seat in the House of Commons after a fellow Labour MP had stood down from his
seat in order to make the election of Sir Soskice possible. In 1964, Mr Gordon Walker was
appointed to the Cabinet in the Labour Party government, in spite of the fact that he had
been defeated in the elections. He did, however, resign from office following his defeat
in a subsequent by-election. Yardley concludes in view of these two cases: 'Probably a member
of the Government may retain his office providing he does not cease to be a member of
one of the Houses of Parliament for more than a few months. The alternative is for a minister
who takes office without having a seat in Parliament to be created a peer so as to acquire
a seat in the House of Lords'.
28 See par (a) below.
 184 993 S Publiekreg/Public Law

(d) The Lords of Appeal in Ordinary - that is, those members of the House of'
Lords who perform a judicial function (as will be explained later) - as well
as the Speaker of the House of Commons are also members of the Privy
Council whose functions (as will be shown) are administrative, legislative
and judicial in nature. Members (and former members) of the Cabinet are
also Privy Councillors.
As far as the separation of functions is concerned, the British constitutional sys-*
tem also falls short of the doctrine under consideration:
(a) The House of Lords is primarily a constituent part of the legislature, but
it serves also as the highest court of appeal in both civil and criminal mat-
ters and thus also performs a judicial function. Members of the House of
Lords who act in a judicial capacity are called thie Lords of Appeal in
Ordinary. --
(b) The Privy Council performs a great variety of functions falling within the
domain of all three branches of state authority. Upon the death of the
monarch, it is responsible for the funeral and for the accession and corona-
tion of the new monarch - which constitutes an executive function. It issues
proclamations and orders in council, which - as a general rule - are made
under the royal prerogative and statutory authority, respectively. Both in*
their making and promulgation these constitute a legislative functive. The
Privy Council is finally the ultimate court of appeal in respect of the Isle
of Man, the Channel Islands, what might have remained of the British
colonies and dependencies, member states of the British Commonwealth
that have not abolished its jurisdiction, and certain municipal British statu-
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tory or administrative tribunals (such as the General Medical Council) -

which clearly constitutes a judicial function.
(c) The Crown has the power to remove superior judges from office, acting on r
an address by both houses of Parliament requesting the Crown to do so.
The legislature and the executive in this instance perform a judicial func-
tion. Inferior judges are removed from office by the Lord Chancellor, who
is primarily a legislative official but is here called upon to perform a judicial
function.29
(d) Members of the executive are often given the power to make subordinate '
(delegated) legislation, and in doing so they perform a legislative function.
(e) Administrative tribunals, as well as many ordinary courts of law, have been
entrusted with both administrative and judicial functions.
(f) Justices of the peace (comparable to South African magistrates) are first and
foremost judicial officers but they are also required to perform executive func-
tions, such as licensing. "

29 Yardley (n 26) 71 seems to think that judicial appointments made by the executive consti-
tute a breach of the theory of separation of powers. That is not the case. The making of
appointments is an executive act, and although it might be seen as an instance of checks
and balances, the fact that superior judges are appointed by the executive (the Crown) is
in conformity with the principle of the separation of powers. With the appointment of in-
ferior judges there is a problem, though. Such judges are appointed by the Lord Chancel- '
lor, whose primary position is that of legislative official and who here performs an execu-
tive act.
 The separation of powers 185

1 (g) Local government authorities, instituted in Britain by Acts of Parliament or

by royal charter, perform within their areas of jurisdiction, executive as well
as legislative functions.
The system of checks and balances is not part of the British constitutional dis-
pensation. The legislature in the United Kingdom is not subject to any special,
legally enforceable power constraints and the independence of the British
'judiciary is 'jealously preserved'.30 By virtue of the sovereignty of Parliament,
the executive is, however, responsible to and controlled by the legislature.31
The fact that superior judges are appointed by the executive and inferior judges
by a legislative official, and that the executive and a legislative official have the
power to remove members of the judiciary from office, might be seen as an in-
stance of checks and balances. There is, however, no equilibrium or balance
-in the power of control entrusted to the different repositories of state authority.

Separation of powers in South Africa

The current South African constitutional system, like the British, is not found-
ed on the doctrine of the separation of powers. The only component of the doc-
trine that is upheld in South Africa is the formal classification of political power
'into legislative, executive and judicial functions. South Africa, in fact, went as
far as proclaiming separate capitals - Cape Town, Pretoria and Bloemfontein
- for the distinct branches of state authority.
As far as central governmental structures are concerned, legislative functions
are primarily vested in the State President, the three houses of Parliament and
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the (now defunct) President's Council; the central executive consists of the State
President, the Cabinet, the three Ministers' Councils, deputy ministers and the
·, civil service; and judicial powers are in the main vested in the Appellate Divi-
sion and the Provincial and Local Divisions of the Supreme Court.
Non-compliance in South Africa with the other basic demands of a separation
of powers will appear from the following examples.
First, consider the separation of personnel:
(a) The State President is first and foremost head of the executive32 but also
serves as an integral part of the legislature.33 In the latter capacity he is,
amongst other things, required to assent to and sign all bills before they
can become law, and he may withhold his assent if he is satisfied that the
bill in question has not been dealt with in accordance with the pertinent
procedures as provided for in the Constitution Act. 34
»(b) Members of the Cabinet (except for the State President) and of the Ministers'
Councils, as well as deputy ministers - all of whom belong to the executive

30 Yardley (n 26) 71.

31 See Van der Vyver 'Parliamentary sovereignty, fundamental freedoms and a bill of rights'
1982 SAL] 557 at 563.
'· 32 Section 19(1) of the Republic of South Africa Constitution Act 110 of 1983.
33 Section 30: 'The legislative power of the Republic is vested in the State President and the
Parliament of the Republic ...'.
34 Section 33(1).
 186 1993 S Publiekreg/Public Law

branch of state authority - are permitted to be members of Parliament - that

is, part of the legislature.35
The three organs of state authority have each been entrusted with competences
and duties that violate the principle of the separation of functions.
Parliament is the supreme legislature but also performs non-legislative func-
tions. 1

Parliament performs executive functions when, for instance, inquiries are con-
ducted by parliamentary committees,36 or when through the agency of the
Parliamentary Internal Security Commission it 'investigate^] matters which,
in the opinion of the State President, affect internal security and which are
referred to it by the State President ...\ 37
Parliament performs judicial functions when, in terms of section 4 of the Powers
and Privileges of Parliament Act 91 of 1963, a house acts or the houses of
Parliament act as a court to summarily inquire into conduct which in terms of
the Act constitutes an instance of contempt of Parliament,38 or when, in terms
of section 10(7) of the Supreme Court Act 59 of 1959, it conducts impeachment
proceedings for the removal from office by the State President of a judge of the,
Supreme Court on the grounds of 'misbehaviour or incapacity'.39
The executive likewise performs non-administrative functions. The executive
performs legislative functions when, by virtue of delegated powers of law-
making vested in it, any of its officers - for instance the State President or a
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35 Prior to the enactment of the Constitution Amendment Act 149 of 1992, ministers and deputy
ministers were, in fact, required to be members of Parliament or to become members of
a house of Parliament within a period of twelve months as from the date of their appoint-
ment. It is interesting to note that the (former) President's Council, which was instrumen-
tal in drafting constitutional proposals that culminated in the Republic of South Africa Con-
stitution Act 110 of 1983, recommended that ministers should not be members of Parlia-
ment. See the first report of the Constitutional Committee of the President's Council on
the adaptation of constitutional structures in South Africa (PC 3/1982) ch 6. The govern-
ment rejected this proposal, and although the President's Council in a subsequent report'
repeated the recommendation (see the second report of the Constitutional Committee of
the President's Council on the adaptation of constitutional structures in South Africa (PC
4/1982) ch 5), the government persisted in its opposition to the principle of separation of
personnel.
36 The Constitution Act s 64(l)(a) and (c) provides for joint committees consisting of members
of each one of the Houses of Parliament and for standing comittees: that is joint commit-
tees that function while Parliament is prorogued.
37 Section 4 of the Parliamentary Internal Security Commission Act 67 of 1976.
38 See s 10(3) of the Act, which lists the acts that are here conveniently referred to as instances
of 'contempt of Parliament'. Section 4 of the Act provides that a 'House or the Houses sit-
ting as a court shall... have all such rights and privileges of a court of law as may be neces-
sary for the purpose of summarily enquiring into and punishing any act, matter or thing
herein declared to be a contravention of this Act'.
39 Ά judge may in this way and for these reasons be removed from office upon an address
from each of therespectiveHouses of Parliament in the same session praying for such removal·'
...'. See also s 13(4) of the Magistrates Act 90 of 1993 authorising Parliament to recommend
the removal from office of a magistrate on grounds of misconduct, ill health or incapacity
to carry out his or her duties.
 The separation of powers 187

ninister - proclaims subordinate legislation,40 or when the Rules Board for

Courts of Law exercises its power to make, amend or repeal rules of procedure
for the Supreme Court or the lower courts.41
rhe executive performs judicial functions by virtue of the competence of the
Black Divorce Court42 and a great variety of administrative tribunals (such as
the water courts, the childrens' courts, the court for income tax appeals and
the Publications Appeal Board) to adjudicate in matters that fall within their
respective areas of jurisdiction.43 The competence of the State President, in the
exercise of his prerogative of mercy, to pardon or reprieve offenders,44 or, upon
discovery of further evidence that materially affects a conviction or sentence
in any particular case, to afford to the offender a free pardon or to order a sub-
stitution of the court's earlier verdict,45 also amounts to the executive's per-
forming a judicial function.
rhe Supreme Court is also entrusted with non-judicial powers. The judiciary
performs legislative functions when the Judge President of a provincial division
Df the Supreme Court makes rules of procedure for the day-to-day functioning

10 The examples, selected here at random, include the power of the State President, in terms
of s 5(l)(fl) of the Black Administration Act 38 of 1927, to define the boundaries of tribal
areas or settlements, and the power of the Minister of Justice, in terms of the Magistrates'
Courts Act 32 of 1944, to determine the amount of any claim or the value of any matter
in dispute that would bring the claim or dispute within the civil jurisdiction of a magis-
trates' court (s 29(l)(g)) and to determine the maximum fine that may be imposed by a magis-
Reproduced by Sabinet Gateway under licence granted by the Publisher (dated 2012)

trates' court in a criminal trial (s 92(l)(i>)).

41 Section 6 of the Rules Board for Courts of Law Act 107 of 1985.
42 See s 10 of the Black Administration Act 1927 as amended by Act 9 of 1929.
43 Prior to the entering into force of the Magistrates Act 90 of 1993, magistrates clearly also
constituted part of the civil service. The said Act attempts to sever the link between magis-
trates' courts and the executive branch of government by affording to magistrates security
of tenure (s 13(4)) and establishing the Magistrates Commission, which, amongst other things,
will be charged with securing that the appointment, promotion, transfer or discharge of,
or disciplinary action against, judicial officers in the lower courts take place without favour
or prejudice (s 4). It should be noted, though, that the Minister of Justice will retain the
power to appoint magistrates (s 10; and see also s 9 of the Magistrates' Courts Act 32 of
1944) and to determine their conditions of service by regulation, albeit only in consultation
with the Magistrates Commission (s 11 of the Magistrates Act 90 of 1993; and see also the
Magistrates' Courts Amendment Act 120 of 1993, which made provision for a Regional Magis-
trates Appointment Advisory Board (s 9Ws of the Magistrates' Courts Act 32 of 1944) and
a Senior Civil and Family Magistrates Appointment Advisory Board (ibid s 9ter)). The Minister
of Justice will furthermore determine the salary scales of magistrates in consultation with
the Magistrates Commission and after consultation with the Commission for Administra-
tion (s 12(1) of the Magistrates Act 90 of 1993). The Magistrates Act thus perhaps does not
go far enough to satisfy the demands of the separation of powers as far as securing the
independence of judicial officers in the lower courts and severing the links between magis-
trates and the executive are concerned. Section 9(3) of the Magistrates' Courts Act 32 of
1944, moreover, still authorises the appointment of a 'competent officer of the public ser-
vice' to act in place of an absent or incapacitated judicial officer in the lower courts; and
the Magistrates Act 90 of 1993 also adds to the problems of upholding the separation of
functions by conferring on the legislature the judicial function of dismissing magistrates
from office.
44 Section 6(3)(d) of the Republic of South Africa Constitution Act 110 of 1983; s 325 of the
Criminal Procedure Act 51 of 1977.
45 Section 327 of the Criminal Procedure Act 51 of 1977.
 188 993 S Publiekreg/Public Law

of the court.46 Operation of the stare decisis rule may also be seen as constituting
the formation of (judge-made) law47 - at least when the court is called upon
to create a norm, 'in accordance with the principles of reasonableness, justice,
equity and ... the boni mores', in cases where previously no rule of law as to
the point to be decided existed,48 and also when the courts' finding on a ques-
tion of law amounts to an erroneous exposition of the law.
The Supreme Court has also been burdened with administrative functions49 - '
admittedly in most instances ones that are intimately related to, and which in
many cases involve, controversies and dispute resolution. Such functions in-
clude the liquidation of a company,50 the sequestration of insolvent estates,51
the dissolution of marriages,52 and the 'certifying' of persons as 'mentally ill'. 53
It should be noted that the above outline of governmental personnel and func- r
tions that violate the principles included in the notion of the separation of powers
reflects only the tip of an iceberg; and further, that the examples deal with the
disposition of central authorities only. On the level of provincial and local govern-
ment, the functions of legislation and administration are almost entirely integra-
ted. The legislative function entrusted to the administator of a province,54 and
the selection of members of a municipal management committee from the ranks
of city councillors, are but a few examples that apply in this regard.
The South African constitution does not profess to uphold the principle of checks
and balances. The Republic of South Africa Constitution Act 110 of 1983 is par-
ticularly noted for the absence of substantive power constraints55 and for vest-
Reproduced by Sabinet Gateway under licence granted by the Publisher (dated 2012)

ing supreme power in the executive, with a particularly potent State President
at the helm. 56 The following provisions might be seen as (slight) concessions
to the idea of checks and balances.
The legislature has been given the power to conduct proceedings for the removal'
from office of the judiciary on grounds of 'misbehaviour or incapacity' (a judicial

46 Section 43(2)(b) of the Supreme Court Act 59 of 1959.

47 See Van der Vyver and Van Zyl Persone- en familiereg (1982) 309-311; and see also Hahlo
and Kahn The South African legal system and its background (1968) 304-25.
48 Van Erk ν Holmer 1992 2 SA 636(W) at 648.
49 The attitude of the South African judiciary with regard to administrative functions of the
Supreme Court is reflected in a dictum of Rumpff AJ (as he then was) in Publications Control
Board ν William Heinemann Ltd 1965 4 SA 137(A) 156: 'The duty to perform purely adminis-
trative functions is, fortunately, seldom if ever, entrusted to the Supreme Court. The per-
formance of such administrative work is the privilege of the executive government, and
it is intrinsically alien to the character of the supreme court. The administrative function "
that had been entrusted to the court in relation to publications control (censorship), which
was the subject-matter of the case, was subsequently transferred to an administrative tribunal,
the Publications Appeal Board. It should be noted, though, that censorship may involve
questions requiring adjudication'.
50 See s 344-348 of the Companies Act 61 of 1973.
51 See s 6 and 12(1) of the Insolvency Act 24 of 1936.
52 See s 2 and 3 of the Divorce Act 70 of 1979.
53 See s 19(l)(b), 21 and 60 of the Mental Health Act 18 of 1973.
54 Section 14(2) of the Provincial Government Act 69 of 1986.
55 Van der Vyver Die Grondvxt van die Republiek van Suid-Afrika (1984) 48-83.
56 Idem 17-21; and see also Boulle South Africa and the consociational option (1984) 204-5.
 The separation of powers 189

function)57 and to call on members of the executive in question-time in Parlia-

ment to answer for their administrative acts (an executive function).58
The executive has been given the power of appointing judges of the Supreme
Court (an executive function)59 and, acting through the State President, of
withholding the approval of a bill passed by Parliament in cases of non-
compliance by the legislature with the procedural provisions in the Constitu-
tion Act pertaining to the process of law-making (a legislative function).60
The judiciary has been given the power of procedural review in relation to acts
of Parliament and administrative acts of the executive (a judicial function).61
The above checks and balances - some of which are, as indicated, in conform-
ity with the separation of powers and others not - are clearly outclassed by the
power of the executive to manipulate legislation, as evidenced, inter alia, by the
power of the State President to categorise a matter as an 'own affair' of a par-
ticular population group and in doing so to select the legislative mechanism
to be applied in its enactment,62 and by the power of the State President in
general affairs matters to activate the President's Council as a substitute legis-
lature in cases where the three houses of Parliament have failed to reach
consensus.63

The 'Third Republic'

Separation of powers - everyone will agree - constitutes a most commendable
constitutional principle, but one which, like all other mechanisms of governmental
Reproduced by Sabinet Gateway under licence granted by the Publisher (dated 2012)

constraint, ought to be applied with circumspection and within appropriate

limits. Even the norms of human rights protection are, after all, not absolute
and should in the appropriate circumstances be subjected to derogation.
In the case of separation of powers, however, drafters of Schedule 1 made no
provision for such limitations or exceptions to the rule. Nor does the phrase
'... with appropriate checks and balances to ensure accountability, responsive-
ness and openness' in paragraph ΠΙ of the 'Constitutional Principles' contained
in that schedule make allowance for checks and balances that would confer
powers on either the legislature, executive or judiciary which deviate from the
norm of separation of functions. That phrase mandates the constitutional drafters
to make allowance for checks and balances that would secure the objectives men-
tioned in paragraph III, but does not authorise any deviation from the norm
stated in the opening lines of the paragraph.64 Strict compliance with separa-

57 See η 39 above.
58 However, members of the executive can refuse to answer questions if, in their opinion,
divulging of the information sought would not be in the public interest.
59 Section 10(1) of the Supreme Court Act 59 of 1959; and see also s 10 of the Magistrates Act
90 of 1993, authorising the Minister of Justice to appoint magistrates.
60 Section 33(1) of the Republic of South Africa Constitution Act 110 of 1983.
61 Section 34(2)(a); and see Van der Vyver 'Judicial review under the new constitution' 1986
SAL] 236.
62 Section 14, read with s 16(l)(a).
63 Section 32.
64 This appears from use of the word 'with'; i e there must be a separation of powers (func-
tions) with appropriate checks and balances.
 190 1993 S Publiekreg/Public Law

tion of powers - also in the selection of checks and balances - is therefore called7
for.
Even if that were not the case, many of the commendable deviations from the
norm of separation of powers do not derive from checks and balances but have
been developed purely as a matter of constitutional expediency. That, for in-
stance, is the case as far as delegated powers of law-making of members of the
executive are concerned. i
The above outline is intended to illustrate the far-reaching consequences which
strict adherence to the principle of separation of powers would have: no mem-
ber of the Cabinet would qualify for membership of either house of the legisla-
ture; the State President would no longer be permitted to sign, let alone veto,
legislation; ratification of executive and judicial appointments by any house of
the legislature would not be permissible; all administrative tribunals would have'
to be abolished; executive institutions with law-making powers, such as the Rules
of Courts of Law Committee, would become obsolete; the State President and
other members of the executive would lose their statutory/delegated powers
of law-making; the stare decisis rule would have to go, and so on and so forth.
In a word, South Africa would no longer remain within the family of 'adminis-
trative states' and its constitutional system would be unique throughout the'
world. The end result would not be one to be desired! And all that, in the writer's
opinion, by reason of the sloppy drafting at Kempton Park of principle III.
It should again be emphasised that the Constitutional Principles are more than
constitutional provisions. A constitution can always be amended, albeit through
Reproduced by Sabinet Gateway under licence granted by the Publisher (dated 2012)

the medium of procedures difficult to effect. Constitutional Principles, however,

precede and operate above and beyond the constitution, which must fit into
the framework of those Principles. The Constitutional Principles were designed r
to be an immutable Grundnorm in the true sense.
The wisdom of compromising the state apparatus in our changing world in ac-
cordance with such principles is, to say the least, questionable - even more so
if it should appear that the Grundnorm was drafted without proper care or in
language that does not accurately reflect the intention of the drafters - as might
be suspected in the case of the third principle.
The options available to the Constitutional Court in applying the third princi-
ple are threefold. In order to preserve the politically sound institutions of the
administrative state, it might seek to discover an 'intention' on the part of the
drafters not expressed in the words of the first schedule itself; or it might, with
the same objective in mind, redefine the notion of 'separation of powers'65 by

65 The Constitutional Court might find support for that approach in the writings of constitu-
tional lawyers who-seem to think that 'separation of powers' has no fixed meaning. See,
e g, Carpenter Introduction to South African constitutional law (1987) 156-157. It is submitted,
though, that the meaning of 'separation of powers' is perfectly clear. The problem is sim-
ply that no country in the world strictly applies the norms included in that concept, and
the differences in approach referred to by Carpenter relate to the nature and number of
exceptions to the rule sanctioned in different jurisdictions. Exceptions made to a rule do ·'
not determine the substance and meaning of the rule. For instance, the presidential veto
in the United States is admittedly not part of the rule, it is an exception made in that coun-
try to the norm of separation of powers. It is important to note that Carpenter herself
 The separation of powers 191

reading some of the exceptions to the rule into the substantive definition of the
concept itself; or it might take 'separation of powers' to mean what it says and
give it the meaning it has come to acquire, thereby causing South Africa to
sacrifice the expedience of a modern administrative state.
It is clearly not within the province of the Constitutional Court to read provi-
sions into the Principles that have not been expressed in the instrument itself,
or to interpolate the Principles in accordance with the Court's own perception
of a good or workable constitution. The Constitutional Court has been charged
with taking the Constitutional Principles at face value and with ruling out any
constitutional provision found to be. in conflict with those Principles.
In the prevailing South African situation, ill-considered drafting of the Constitu-
tional Principles is most unfortunate. Not only might such neglect result in the
enactment of undesirable constitutional constraints, it could also spark cease-
less political dispute.
There are many 'bitterbekke' amongst the political leaders in South Africa who
will be taking their followers into the new South Africa with vexatious intent.
Others, who might at present seem at ease in a new South Africa, may change
their tune if election results should fail to live up to their expectations. Ill-defined
Constitutional Principles could provide fertile soil for those nursing political
grievances. Then, instead of sanctioning the assurances and securing the cer-
tainty it was designed to promote, the first schedule - if the third principle is
anything to go by - will more likely provoke accusations of a breach of trust
and become the instrument for perpetuating irresponsible political conflict.
Reproduced by Sabinet Gateway under licence granted by the Publisher (dated 2012)

(at 157 with reference to Hinds ν The Queen 1977 AC 195 at 212) regards the separation of func-
tions as the core meaning of 'separation of powers'; which is where the problem with prin-
ciple III lies. It should further be noted that Carpenter severely discredits her own under-
standing of the principle of separation of power by concluding (ibid): 'Taken in this limited
sense, the doctrine may be said to be adhered to both in England and in South Africa, ...'.

LLM course in Advanced Statutory Interpretation (Unisa)

The Department of Constitutional and Public International Law offers an LLM
course (B curriculum) in Advanced Statutory Interpretation (MSINLW-J).
The course includes topics such as advanced theories of statutory interpretation,
constitutional review and an entrenched bill of rights, judicial activism and the
creative discretion of the judiciary, theories of constitutional interpretation, a 'rights
culture' in South Africa, as well as different models of constitutional courts.
Students interested in registering for the course and who require additional
information, may contact Mr Christo Botha of the Department of Constitutional
and Public International Law (012-429-8509) or Mr GW Cox of the Department of
Postgraduate Student Affairs (012-429-2805).