The doctrine of separation of powers and

its application in South Africa

Pieter Labuschagne
Department of Political Sciences
University of South Africa
e-mail: labuspah@unisa.ac.za

Abstract
During the period 1910 1993, the South African government was marked
predominately by the dominance of a fused executive and legislature in a
parliamentary system of government.This constitutional arrangement in-
hibited the separation of powers between the legislature, the executive
and the judiciary. However, this constitutional arrangement changed dra-
matically with the adoption of the final Constitution of1996.The aim of this
article is to review the constitutional changes that took place after the
adoption of the final Constitution, in particular at how the supremacy of
the Constitution and related provisions strengthen the principle of separa-
tion of powers. It will be argued in the article that the perpetual fusion of
the legislature and the executive in the present South African system still
undermines the proper functioning of the separation of powers in govern-
ment. In addition, the article will also deal with the important influence of
the inclusion of socio-economic rights on the separation of powers princi-
ple and, in the process, the imminent danger of the judiciary becoming in-
volved in the formulation of public policy, which is traditionally an executive
function.It is evidentthatthe unique socio-economic needs in South Africa
in future will test the resilience of the separation of powers doctrine and
it is this issue thatthe article wishes to consider in more detail.

Introduction
The legal historian W. A. Robson wrote in his well-known publication Justice and
administrative law that the threefold division of labour between a legislator, an
administrative official and an independent judge is a necessary condition for the
rule of law in modern society and therefore for government itself (Wade &
Bradley 1991, 50). Robson thus subscribes to one of the oldest constitutional
principles in politics and constitutional law, and refers to the threefold separation
of powers (trias politica) between a legislator (legislative authority), an

84 Politeia Vol 23 No 3 2004 ISSN 0256 ^ 8845 # Unisa Press pp 84 ^102

 The doctrine of separation of powers and its application in South Africa

administrative official (executive authority) and an independent judge (judicial

authority).
This article intends first, to outline the basic assumptions of the doctrine of the
separation of powers and, second, to analyse the implementation of the concept of
the separation of powers in South Africa in two distinct historical periods. The first
period is from 1910 to 1993 (the formation of the Union to the adoption of the
interim Constitution). The distinct constitutional aspect of this period was the
supremacy of parliament and the influence that this phenomenon had on the
implementation of the separation of powers in South Africa. The second period is
from 1993 (the adoption of the interim and final Constitution) to 2004. This period is
important because of the `legal revolution' that took place in South Africa when
legislative supremacy was ended and replaced by a supreme Constitution. The
purpose of the investigation is to establish whether the new constitutional
dispensation (interim and final Constitutions) was responsible for a more decisive
application of the separation of powers doctrine in South Africa.
In the discussion of the doctrine of separation of powers in South Africa during
the post-1993 period, special emphasis will be placed on the influence that the newly
introduced socio-economic rights, which were included in the Constitution, had on
the separation of powers. The article will also contain an evaluation of the
rejuvenated judicial review by the courts since 1993 under a supreme Constitution.
The purpose of the last section is to establish the impact that judicial review had on
the implementation of the basic assumptions of the separation of powers doctrine in
South Africa.

1. The doctrine of the separation of powers (trias politica)

The separation of powers is one of the oldest constitutional principles in politics and
constitutional law. Rautenbach & Malherbe (1996, 68) echo the sentiments of many
when they state that any discussion of the term `government authority' would be
incomplete without reference to the contribution of the separation of powers doctrine
to early and modern governance.
The fundamental value of the separation of powers lies in its constitutional
checks and balances in government to ensure that state authority is constitutionally
controlled and not exercised arbitrarily. This role is in keeping with the ideal of a
constitutional state or a Rechtstaat (Basson 1994, 144).
One of the oldest dicta on restricted authority (the doctrine of the separation of
powers) entails that the freedom of the citizens of a state can be ensured only by a
division of centralised institutionalised power, because the centralisation of power
can potentially lead to abuse. This division of authority is achieved by a structural
and functional separation of government's authority into legislative, executive and
judicial branches. These functions are then exercised by different governmental
bodies and different personnel (Rautenbach & Malherbe 1996, 68; Van der Vyver
1973, 177).

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The constitutional principle of separation of powers is a very important asset to

the maintenance of constitutional order in modern government. Klug (2000:2425)
explains that three sets of values in present-day modern governments frame
traditional notions of constitutionalism, namely: (1) federalism, or the spatial
divisions of power; (2) the separation of powers between the different powers of
government; and (3) the notion of constitutional rights. Each of the three sets of
values addresses different aspects of the `problem' of power its allocation,
application and restriction.
The global prominence of the separation of powers doctrine is proved by the fact
that it is a guiding constitutional principle in almost all democracies. Mr Justice
Berger (1993, 262) of the Supreme Court of British Columbia once declared:
The history of the long struggle for separation of powers and the independence
of the judiciary not only establishes that the judges must be free from political
interference, but that the politicians must be free from judicial intermeddeling in
political activities. This carries the important and necessary concomitant result
public confidence in the impartiality of judges both in fact and appearance.

Almost all discussions of the trias politica doctrine start with reference to the
two influential philosophers of the Age of Reason who made fundamental
contributions to the development of the trias politica doctrine, namely John Locke
and the Baron de Montesquieu. Although the concept of separation of powers was
first introduced in the early 1600s by the Levellers movement in England, a
substantial part of the credit for further developing and popularising the principle
must go to Locke and Montesquieu.
The first modern design of the doctrine of the separation of powers was to be
found in the constitutional theory of John Locke (16321704) (Van der Vyver
1993, 177). In 1690 Locke wrote in his Second treatise of civil government, in
which he states: `It may be too great temptation to human frailty, apt to grasp at
power, for the same person who has the power to make laws, to have also on their
hands the power to execute them' (Wade & Bradley 1991, 51). However, as van der
Vyver (1993, 177) correctly points out, the separation of powers emanated from the
exposition of the principle by the French philosopher Montesquieu. In his well-
known work, L'esprit des lois (1748), Montesquieu describes the British
constitutional system, which he perceives as a model system for his country, as
one in which liberty was possible the supreme objective of a political society.
However, Montesquieu developed his doctrine on the basis of a somewhat erroneous
interpretation of the (British) Westminster system, because the parliamentary system
was in fact characterised by an extremely limited separation of powers to the
extent that Bagehot described the British system as `a close union, the nearly
complete fusion of the legislative and executive powers' (Wade & Bradley
1991, 53). Nevertheless, the doctrine had a tremendous influence on the
development of modern politics and constitutional law (Rautenbach & Malherbe

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1996, 69). There is virtually no constitution, written or unwritten in the modern

world, that is not structured, in one way or another, on the basic doctrine of
Montesquieu.
Rautenbach & Malherbe (1996, 69) describe the components of the separation of
powers doctrine as follows:
. Legislative authority is the institutionalised power to make, amend and repeal
rules of law.
. Executive authority is the institutionalised power to execute and enforce rules of
law.
. Judicial authority is the institutionalised power in disputes to determine what the
law is and how it should be applied.

The modern version of the separation of powers developed over centuries and
the Montesquieun ideas eventually developed into a norm that comprised four basic
principles:
(1) The principle of trias politica: a formal distinction is made between the different
branches of government, legislative, executive and judicial.
(2) The principle of separation of personnel functions: each branch of government is
staffed with different officials.
(3) The principle of separate functions: each branch of government is entrusted with
its core function, namely legislation, administration of state affairs and
adjudication.
(4) The principle of checks and balances: each branch is entrusted with special
powers, to keep a check on the others so that an equilibrium in the separation
and distribution of powers may be upheld (Van der Vyver 1993, 178).

2 South Africa and the separation of powers

2.1 Trias politica in the pre-1993 era
South Africa's constitutional history during the period 19101993 was marked
predominately by the dominance of legislative supremacy in a parliamentary system
of government. The impact of parliamentary dominance on the separation of powers
was compounded by the fact that parliament was sovereign and unrestrained in its
unlimited power to legislate (Devenish 1998, 8). The dominance of the legislative
supremacy from the Union in 1910 shaped South Africa's modern constitutional
history up to the demise of the tricameral constitution and the adoption of the 1993
interim Constitution.
In the parliamentary system of government the fusion of the executive and the
legislative branches of government institutionalised power in parliament. This
constitutional arrangement of fused institutions explains the dominance of
centralised power in the system. Compounding this over-concentration of power,

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the judicial authority was not allowed to exercise judicial review to restrict executive
power. This arrangement effectively blocked any developments, such that Chief
Justice Marshall of the United States Supreme Court was able to declare state
legislation in Marbury v Madison 1 Chranch (5 US) 137, 2 L Ed 60 (1803) invalid,
because it was contradictory to the American Constitution.
The supremacy of the South African Parliament during the period 19101993
was partly the result of the constitutional arrangement that the courts could only
interpret parliamentary statutes, and not question their validity. Consequently, as
Devenish (1998, 8) explains, there were no legally enforced limits to the authority of
a sovereign parliament.
For a system of checks and balances of executive and the legislative activities to
be established, it is vital that their actions be tested against a constitution or at least
some other form of objective standard. This constitutional method ensures that limits
will be placed on the legislative authority. In addition, this entails the ultimate and
final word on constitutional issues vesting in the courts and not in the legislature.
This form of checks and balances, known as judicial review, is usually found in
countries with federal institutions, such as the United States. In the United States the
state courts have jurisdiction to declare state legislation repugnant to the state
constitution, and the federal courts have jurisdiction to declare provisions of the state
constitutions, state legislation and federal legislation repugnant to the constitution
(Devenish 1998, 13).
In contrast, in South Africa the impact and development of the doctrine of
separation of powers were, from the outset, suppressed by all-powerful legislative
and executive institutions. This dominance was the result of the fused nature of the
legislature and executive. It is therefore hardly surprising that the separation of
powers principle developed only nominally at the central level of government in
South Africa.
The 1909 Union Constitution also closely followed the English tradition of
legislative supremacy in a parliamentary system of government. Although the
legislature was initially statutorily constrained by limited entrenchment, there were
constant battles with the courts to remove black and coloured voters from the
common voter's role in the Cape Province. It was this ongoing struggle with the
courts that eventually secured the dominance of Parliament over the Constitution.
The rise of parliament supremacy over the judiciary was finally secured with the
adoption of the 1961 Republican Constitution. Section 59 of the 1961 Constitution,
constitutionalising the exclusion of the courts from substantive judicial review,
struck a blow for parliamentary supremacy and fundamentally undermined the
functional effectiveness of a separation of powers. Despite the courts' initial
resistance, they soon had to recognise that the will of a racially exclusive Parliament
would be paramount in future (Klug 2000, 35; Hahlo & Kahn 1960, 152163).
The dominance of parliament was confirmed when the then prime minister,
Hendrik Verwoerd, rejected calls for the adoption of an entrenched bill of rights (and

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thus an objective standard against which the legislative activities of Parliament could
be tested) as the `unthinkable' and asserted that he was not prepared to `sacrifice the
sovereignty of Parliament'.
It is therefore safe to state that, during the period 19101993, the South African
government did not adhere to the most basic assumptions of the doctrine of
separation of powers. As van der Vyver (1993, 185) points out, the only component
of the doctrine that was upheld in South Africa was the formal classification of
political power into legislative, executive and judicial functions.
The only real success for the courts in terms of complementing the separation of
powers was at the regional level (Wiechers 1994, 622). Although the all-powerful
central government tended to shape the constitutional landscape during the period
19101993, the courts were still able to give many outstanding decisions. These
decisions were made mainly at regional level, to support the separation of powers,
especially in the demarcation of powers between the central government and
subordinate regional bodies. Undoubtedly, the courts had to be careful in their
approach in the face of restrictive institutional power, but managed to be successful
in a number of cases. A few of the well-known dicta on the separation of powers
were delivered in Johannesburg Consolidated Investments Co v Marshall Township
Syndicate 1917 AD 662, Middelburg Municipality v Gertzen 1914 AD 544 and
Joyce and McGregor Ltd v Cape Provincial Administration 1946 AD 658.
In later decisions, Government of the Republic of South Africa v Government of
KwaZulu 1983 1 SA 164 (A) and Staatspresident v Lefuo 2 SA 679 (A), it was clear
that South African courts were not afraid to define the competencies of provinces
and regional authorities and to give meaning and some substance to principle of the
division of state power and regional autonomy. However, Wiechers (1994, 623)
notes the absence of such a principle as a broad underlying concept of South African
state and statehood.
Despite the successes, it was still evident that the South African government was
adamant that it wished to adhere to the principles of parliamentary supremacy and
political control and all that the courts were able to do was to place temporary
obstacles in its path. In reality, the South African legislature could amend the
constitution or simply defeat the interpretation(s) of the courts. In plural societies,
without the necessary constitutional protection, it would be unrealistic to assume that
the judiciary could operate autonomously. In the battle with the executive or the
legislature, it would ultimately have to give way or risk self-destruction (Barrie
1993, 251).

2.2 Trias politica in South Africa in the post-1993 era

Basson (1994, v) describes the (interim) Constitution Act 300 of 1993 as perhaps the
most ambitious legislative instrument of all time. It was a complete break with the
past, with the old constitutional dispensation of a Westminster-style parliamentary
sovereignty, and was an innovation from which legal positivism could flourish. Both

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the 1993 interim and the 1996 final Constitutions include a bill of rights (chapters 2
and 3 respectively), and are able to bind all legislative, executive and judicial organs
of the state. Any inconsistencies with the supreme law, statutory and common law
are henceforth pro non scripto.
The political transformation that took place in South Africa during the 1990s
was described by many as nothing short of a miracle. Many ascribe this
transformation to external international pressure and internal dynamics. However,
Said Arjomand argues that, although it is generally assumed that the new
constitutional arrangements in a country reflect the internal development in that
country, it is actually the availability of constitutional models that is far more
important in shaping the constitutional arrangements (Klug 2000, 8).
One of the guiding constitutional principles of the interim and final Constitutions
was the provision for the formal separation of powers. In this regard section 96 of
the interim Constitution is of paramount importance. The primary prerequisite for a
separation of powers is that the judicial authority of the state must be truly
independent and impartial. This independence and impartiality of the judiciary will
enable the courts to act as arbitrator between the various organs of the state, and the
state authority and the subjects of the state. The independence of the judicial
authority was confirmed by section 96 (3) of the interim Constitution, which
stipulates that no person and no organ of the state will interfere with the judicial
officers in the performance of their duties. In addition to section 96 (1)(3), the
structural outline of the judicial authority was on par with the requirements of the
constitutional principle and requirements of adopting a system in which a trias
politica principle can operate. Section 96 (2) stipulates that the judiciary shall be
independent, impartial and subject only to the Constitution and the law. Section 98
(2)(e) further stipulates that any dispute of a constitutional nature between the organs
of the state require the judiciary to act as an arbiter, which strengthens the role of the
judiciary in the establishment of the separation of powers.
This constitutional arrangement meant that the separation of powers principle
was part and parcel of the constitutional checks and balances in the Constitution.
These provisions were intended to ensure that state authority is controlled and not
exercised arbitrarily. Furthermore, these arrangements are in keeping with the ideal
of a constitutional state or a Rechtstaat (Basson 1994, 144).
It must, however, be pointed out that the separation of powers in South Africa
cannot be equated with the American presidential system, where there is a stronger
separation of powers (Verney 1992, 115). The American president and his cabinet
are not members of the legislature (Congress), while in South Africa the members of
the cabinet (executive branch) are members of the legislature. In other words, in
South Africa there does not exist a comparable sharp division between the legislature
and the executive, as in the presidential system. The South African system, under the
1996 Constitution, is a hybrid between a parliamentary and presidential system,
because the executive and legislative bodies are still fused in parliament. In this

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hybrid parliamentary system of government, the fusion of the executive and the
legislative branches of government, unfortunately institutionalised power in
parliament. This constitutional arrangement of fused institutions explains the
dominance of centralised power in the system.
Contrary to many opinions, South Africa did not adopt a federal form of state or
even a centralised federal state under the provisions of the 1993 interim Constitution.
Although many political scientists still overvalue the autonomy of provincial powers,
it is clear from the Constitutional Court's decision in Executive Council Western
Cape Legislature & Others v President of the Republic of South Africa & Others
1995 (4) SA 887 (CC); 1995 (10) BCLR 1289 that the control over local government
was constitutionally assigned to the national government. In this case the Western
Cape provincial government challenged the decision to assign plenary powers to the
national executive authority (State President). The basis for their challenge was the
guarantee in the Constitutional Principle XXII in Schedule 4 of the interim
Constitution, which guards the provincial integrity and autonomy of provinces.
While the Western Cape won the case, the province failed to achieve the autonomy it
was seeking and, furthermore, the Constitutional Court established a precedent
denying that autonomy.
However, this point is not the focus of the article, since the emphasis is on the
second and third of the constitutional principles (separation of powers). The
Constitutional Court findings confirmed both constitutional values as part of the new
constitutional arrangements in South Africa. The adoption of the trias politica as a
constitutional principle also confirms the omnipresent importance of judicial review
in South Africa.
In its decision in the Executive Council of the Western Cape supra, the
Constitutional Court reversed an earlier decision by the Cape Provincial Division of
the Supreme Court. This invalidated the President's proclamation and parliament's
amendment of the Local Transition Act by invoking the so-called `delegation
doctrine', which is a direct consequence of the doctrine of the separation of powers
(Devenish 1998, 18).
It is clear that the courts in general and the Constitutional Court in particular
have adopted a rigid approach to the separation of powers that it more inflexible than
it was during the pre-1993 era. The Western Cape case clearly demonstrated that the
executive power will not be allowed to exercise plenary legislative powers, contrary
to the most basic premises of the separation of powers. The Constitutional Court
held that there were limits to the legislative power that Parliament could delegate to
members of the executive. Section 37 of the interim Constitution very clearly vested
the legislative authority of the Republic in Parliament, and Parliament could not
abdicate this authority to the executive (Annual survey of South African law,
1995, 3). This was a clear message that the separation of powers will in future be
upheld in the new dispensation.

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Devenish (2003, 97) refers to De Waal, Currie and Erasmus, who stipulate that
the clear implication of the decision is that `whenever the executive is empowered to
make, amend and repeal acts of Parliament, the doctrine of separation of functions
between the legislature and the executive will be undermined. The executive, the
Court held, may not make this type of law'. The various organs of the state each
have their primary functions, which are separate powers, and should not trespass on
the terrain of others (Wade & Bradley 1991, 115). This is a clear articulation of the
intention of the judiciary to uphold the separation of powers in the new constitutional
era.
Another important judgment dealing with the separation of powers on the basis
of the provisions of the interim Constitution was Bernstein v Bester NO 1996 4
BCLR 449 (CC). With reference to section 22, the Court held that this section deals
with the access to courts and that the purpose of this section was to protect the
constitutional principle of separation of powers. It was therefore of paramount
importance for the courts to uphold the principle and to prevent legislatures from
converting themselves into courts (with reference to Minister of Interior v Harris
1952 4 SA 769 (A)).
It must be understood that the most effective checks and balances mechanism in
a constitutional arrangement is the judiciary, which acts as a watchdog over the other
organs of government (Hopkins 2002, 24). It was this role that the judiciary failed to
fulfil during the period 19101993. This was because the hands of the judiciary were
constitutionally tied, since testing was restricted to procedure and not substance. In
1993, with the adoption of the interim Constitution, this constitutional arrangement
was substantially altered, when a bill of rights was included in the Constitution. The
powers to test and judicial review were fundamentally strengthened, because the
Constitutional and Supreme Courts were given substantial testing powers against the
Constitution and the bill of rights.

2.3 Socio-economic rights, judicial testing and the separation of

powers
The inclusion of socio-economic rights in the bill of rights has direct ramifications
for the judiciary and the separation of powers. It is not merely an application of a
broad constitutional principle, but as Devenish (2003, 259) explains, a bill of rights
has the potential to judicialise politics. The interpretation of rights, especially socio-
economic rights, involves a political activity of a special and a broad kind, because
of its more complex nature. The Constitutional Court has been asked and will be
asked in future to make certain policy choices which, by their very nature, may be
profoundly controversial. It is especially the controversial issues, such as the death
penalty and socio-economic rights, that will present problematic legal and moral
issues. This situation will not be easily solved by the negotiators and eventually the
courts will have to be asked to step in to give judgment on these issues; their
findings are likely to be highly contentious.

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Davis (1993, 475490) is also of the opinion that the inclusion of socio-
economic rights may limit the power of majorities (in parliament) while conferring
undue powers on judges, and in the process serve to create unrealistic expectations
which will diminish confidence in the Constitution.
Kant (1996, 5558) points out the problems of the justiciability of socio-
economic rights, which are not rights, but normative goals. Socio-economic rights
would, according to estimates, add some R80 million to the budget annually;
satisfying these rights would place an insurmountable financial burden on
government. As Kant (1996, 5558) reiterates, the nonfulfilment of socio-economic
rights would furthermore in all likelihood, undermine the Constitution, the
legitimacy of the government and democracy itself. The question, then, is whether
these rights and freedoms can be thought of as fundamental when there is very
limited scope or practical way of guaranteeing their delivery. In the Indian
constitution, for example, this is acknowledged through the qualification that the
right to work, for example, is secured `within the limits of economic capacity and
development' (Heywood 2000, 280).
The Constitutional Court, in its first judgments of issues of socio-economic
rights, laid down clear requirements in its judgments of public policies. First and
foremost the government had to prove that its policies were of a reasonable and
rational nature. To enable the courts to decide about the reasonableness of executive
decisions, the judiciary had to venture into the (controversial) domain of socio-
economic rights and balance the rights of people vis-a-vis the responsibilities of the
government. The undermining impact of this interventionistic policy on the
constitutional principle of separation of powers is self-evident, because this action in
itself stretches the thin boundary between judicial testing of law and actually
formulating public policy (which is an executive function).
The status of socio-economic rights and their influence on the separation of
powers in the new constitutional order was dealt with in the first Certification case,
Ex parte Chairperson of the Constitutional Assembly; in re Certification of the
Constitution of South Africa, 1996 (4) SA 744 (CC) at 810, where the Constitutional
Court held that: `[t]he 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 usurping
power from one another'.
The Court proceeded to state that the principle of separation of powers was not a
fixed or rigid constitutional doctrine and that it was given expression in many
different forms and made subject to checks and balances of many kinds (Vawda
2003, 59).
What was important was that the Constitutional Court also dealt with the issue of
socio-economic rights in the Certification case. The thrust of the Court's arguments
was that the enforcement of civil and political rights, like the right to a fair trial and

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freedom of speech or even the provision of legal representation for someone, will
have direct budgetary implications almost in the same way that socio-economic
rights will. However, Hopkins (2002a, 25) suggests that this judgment should be
approached with circumspection, because it has far-reaching effects in terms of
budgetary matters. Hopkins (p. 25) argues that this could hardly imply that any order
compelling goods to the populace had became constitutionally valid in the light of
this judgment. The apparent danger is that, in the enforcement by the courts of socio-
economic orders, the judiciary would eventually have to overstep the boundary
between testing and actual policy-making. This would naturally mean that, in the
process, the judicial branch will unavoidably interfere in the affairs of the executive,
which will be contrary to the separation of powers doctrine.
A number of important constitutional issues were also raised in Ynuico Ltd v
Minister of Trade and Industry 1995 11 BCLR 1453. This was the first reported case
where a court had been called upon to grapple with the complicated issue of judicial
intervention in the legislative policy of a government (Henderson 1996:553). Mr
Justice van Dijkhorst makes the important point that a court should not declare a law
unconstitutional purely because the court's social and economic views differ from
those of the government. He held that `[i]t is up to the legislature, not the courts to
decide on the wisdom and utility of the legislature' (Henderson 1996, 553).
This is an important statement, because this viewpoint strengthens the basic
principles of the trias politica. The judiciary is the watchdog and plays an important
role in ensuring that encroachment between the different organs of the state are
restricted to their original role, according to the basic principles of the separation of
powers doctrine. As Hopkins (2002a, 24) puts it, a judge is not empowered to tell
government what policy it ought to implement, because to do so would be a serious
violation of the separation of powers doctrine.
However, according to the broader constitutional principles that underpin the
1993 interim and 1996 final Constitution, both form a bridge between the injustices
of the past and the prospects of a more just society in the future. One of the manifest
differences between the bill of rights in the interim and final Constitutions is that, in
the latter, socio-economic rights are dealt with more comprehensively (Devenish
1998, 7273). Because of this the judiciary will have to make judgments in the
broader context of this normative reality. In re Certification of the Constitution of the
Republic of South Africa Constitution Act 1996 supra, the court had already
stipulated that the inclusion of socio-economic rights in the bill of rights does not
violate or erode the doctrine of the separation of powers by encroaching on the
terrain of the legislative and executive powers.
As Devenish (1998, 72) remarks, the justiciability of socio-economic rights is
and will be a contentious issue, not only in South Africa, but also in other countries.
In a positive sense it places a duty on the state to support individuals or groups in
society. In both instances this places a burden on the state and on the basic principles

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of the separation of powers, because the judicial branch has to judge policy decisions
by the executive on socio-economic matters.
Soobramoney v Minister of Health, KwaZulu Natal 1998 (1) SA 765 (CC) was
the first case that dealt extensively with socio-economic rights and specifically the
constitutional right to access to health care. The appellant relied on the right not to be
refused medical treatment and the right to life. The appellant's life could be
prolonged only by ongoing renal dialysis and his application to the High Court was
for an order to provide him with ongoing renal dialysis at state expense. The Court
found that the appellant's demand to be provided with a particular health care service
as set out in section 27 of the Bill of Rights, hence formed part of the appellant's
socio-economic rights. The appellant's application, however, was dismissed. He
subsequently appealed the Constitutional Court, which also dismissed his appeal
(Van Wyk 2003, 397).
The dismissal of the appeal in the Soobramoney case was done on the basis that
the Constitutional Court argued that a court could not make a judgment as to how a
limited budget of a province should best be utilised for the general good (Vawda
2003, 59). Although the decision was criticised on the basis that the Court's role was
too limited and that there was an inability to dictate to the state, it was still a positive
decision in the light of the separation of powers doctrine. This decision was also a
correct interpretation of section 27 (1)(a) and (2), which stipulates that the state must
take reasonable steps within the limits of the available resources to achieve the
realisation of these rights. (The situation in the case of children under the age of 18 is
substantially different, and there the state has to provide these services regardless.)
The judiciary did not overstep the boundary to policy-making and judged the case
purely on the basis of the reasonableness of the existing policy.
The decision reconfirmed the status of the separation of powers in the new
constitutional dispensation. Van Wyk's (2003, 395) outline of the relationship
between the executive and the judiciary is a very valid one in the broader ambit of
the separation of powers doctrine. The explanation of the relationship between the
government and the populace is that, if the people are unhappy because the health
department of KwaZulu-Natal does not have an adequate budget, they should direct
their frustration at the executive and the legislature. The populace can show their
disapproval during the next election by voting for the opposition. The new political
order can then devise a new more satisfactory policy to rectify the situation. The
remedy for an unpopular policy on health issues should thus be looked for at the
political and not the judicial level.
In the next case the judiciary was more prescriptive in its approach to the
obligations of the state. Section 26 of the final Constitution provides that everyone
has the right to adequate housing. In this regard the state is obliged to take
reasonable legislative measures within its resources to achieve the progressive
realisation of these rights. Section 27, in a similar vein, stipulates that everyone has

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the right to access to health care services, including reproductive health care,
sufficient food and water and social security.
In Government of the Republic of South Africa and Others v Grootboom and
Others 2000 (11) BCLR 1169 (CC) the Court took a different approach from that
used in the Soobramoney case. The Cape High Court invoked the provisions of
section 28 (1) (c), which states that `[e]very child has the right to basic nutrition,
shelter and basic health services and social services' and ordered that the authorities
should provide `children and their accompanying parents with shelter until such time
as the parents are able to shelter their own children'. This order by the High Court
overstepped the boundary because it had the effect of policy-making.
The decision went on appeal to the Constitutional Court, which chose to deal
with this matter in terms of sections 26 (1) and (2), which placed a stronger
argument on `reasonable legislative and other measures within its available
resources' (my emphasis). In doing so, the Constitutional Court placed the emphasis
on the reasonability of the policy in the first place and, secondly, on the availability
of resources.
The Constitutional Court went further than in the Soobramoney case, in that it
held that the existing housing policy of the Cape Metro fell short of its constitutional
obligations. The Court found that section 26 placed a burden on the state to take
positive and other measures, i.e. the formulation and implementation of appropriate,
well-directed policies and programmes, within its available resources, to meet the
housing needs of the homeless. Van Wyk (2002, 401) explains that the obligation in
terms of section 27 is not absolute, because three separate elements underpin it,
namely that legislative measures have to be supported by appropriate, reasonable,
coherent, progressive and purposeful programmes, which were implemented in a
reasonable manner, that the fulfilment does not mean overnight, and that the state
must take positive steps to achieve the goal. These elements formed the context that
eventually dictated the pace and the reasonableness of future government policies.
Although these elements amount to positive steps that need to be taken by the Cape
Metro, it did not add up to policy-making by the courts. With this decision the Court
made a contribution to the separation of powers by confirming the divide between
judicial orders and policy-making.
Hopkins (2002a, 24) refers in his discussion of the Grootboom case, to the fact
that the state has an obligation to justify its choice of means and that the standard of
reasonableness requires reason-giving and convincing a reasonable person of its
coherence. It is about the rationality of a policy on its own terms, even if the courts
are not convinced about choosing such a policy in the first place. Hopkins (p. 25)
argues that the courts should not question that policy, unless the `science' of the
policy as such is unable to convince a reasonable person of its coherence.
Vawda (2003, 59) emphasises that the Grootboom decision illustrates how the
judiciary are able to hold the executive to account, without breaching the separation
of powers doctrine. Klug (2000, 159) makes the point that the judiciary's source of

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institutional legitimacy and power lies in its ability to insinuate itself institutionally
in conflicts over the distribution of powers, as it does in the defence of rights.
Furthermore, it also draws on its legacy as the determiner of rights between parties.
In this way the judiciary creates a space, or node of power, from which it could
continually assert its institutional right to be the final arbiter of the meaning of the
Constitution.
This is the standard expectation of the role of the judiciary to complement the
separation of powers doctrine. However, in South Africa, the inclusion of socio-
economic rights and the responsibilities of the courts in this regard means that this
obligation takes the courts further than before in order to decide on these issues. In
this process the judiciary is taken into the domain of the more liberal understanding
of the separation of powers doctrine. In South Africa, as Klug (2000, 179) correctly
points out, the Constitutional principles imply a role for the judiciary in mediating
the construction of a post-apartheid political order, inter alia, to correct the socio-
economic imbalances of the past. The faith is in the courts to resolve these
complicated conflicts, which are too difficult to negotiate between opposing political
parties or between groups. This addition to the traditional role of the courts is, in a
way, a delimitation of the basic functions of the legislature and the executive by the
judiciary. This development amplifies the responsibilities of the courts and puts
additional responsibility on the shoulders of the judiciary.
Traditionally, politics is seen as the actions of organised disputes, and how these
disputes are articulated and then resolved by public decisions made by governments
(Jackson & Jackson 1997, 23). If one adopts the rigid approach of the separation of
powers, the new extended role of the judiciary will undoubtedly trespass on the
traditional field of executive policy-making. It is the right of the politicians
(executive authority) to make socio-economic decisions `about who gets what, when
and how' (Laswell 1956, 1). In this context, it does not matter if these decisions are
wise or unwise. Government does not need to convince a reasonable person of the
reasonableness of its policies. If the policies of the executive are unwise, then it is
the democratic right of the people during the next election to replace the existing
governing party with another political party that is able to make wise decisions. That
is why the executive branch is elected, and court officials are not. Therefore, in the
stricter, more rigid interpretation of the separation of powers doctrine, the `broader'
role of the courts is not complementary to the separation of powers and is a
usurpation of executive powers.
The added burden on the courts in the more liberal view on the separation of
powers stretches further than the conventional notion of the role of the judiciary.
Hopkins (2002b, 24) refers to the fact that the judiciary has to `ensure that the
policies which government implements are reasonable and rational'. Traditionally,
what separates the judicial from the executive is the fact that the judiciary does not
formulate public policy, that being the task of the executive. However, the problem is
that the judiciary, in the liberal interpretation, must ensure and establish the

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reasonableness and rationality of (government) policies. This function must be

performed not only in terms of the reasonableness of the policy, but also of the
measures taken by government (public policies) to achieve the progressive
realisation of its constitutional obligations and the progressive realisation of
socio-economic rights. The fundamental question is whether, in doing so, the
judiciary oversteps its traditional boundaries.
Moellendorf (1998, 331) also outlines the extensive nature of this undertaking
by the courts. The state or provinces cannot simply plead a lack of resources, as in
the Soobramoney case, but have to give conclusive evidence that financial
constraints prevent such specific health care. The courts must be convinced that the
policy decisions are reasonable and were taken in good faith (Van Wyk 2003, 396).
The courts may assess expert evidence, including medical and budgetary evidence,
and may issue court orders which have the potential to overturn government policies.
The court orders may have direct implications for budgetary matters and may also
require a change in fiscal policies (Van Wyk 2003, 296; Moellendorf 1998, 331).
This demand by the courts for a more positive and purposeful role by the
executive is clearly a more liberal approach to the well-known doctrine of the
separation of powers. Devenish (1998, 13) equates this phenomenon to the
increasing disintegration of separation of powers in the actual functioning of
modern government. The Constitutional Court also accepts this in its certification
judgment, when it finds that `[i]t is true that the inclusion of socio-economic rights
will have direct consequences for budgetary matters' and explains that other orders
also have financial implications for the state. However, socio-economic rights are not
traditionally part of the broader range of human rights. Hopkins (2002b, 25) is of the
opinion that reasonableness has to dictate the interventionism of the courts. Again,
the determination of reasonableness depends on one's vision of socio-economic
expectations. This was further complicated by the appointment of the Constitutional
Court as guardian over the transformation process. It is obvious that South Africa's
apartheid legacy and socio-economic imbalances call for a fresh approach to the
notion of constitutional review, specifically in relation to constitutionally entrenched
socio-economic rights (Devenish 1998, 13).
It may therefore seem that, in spite of a more liberal perception of the separation
of powers doctrine, the sacred constitutional principle of the separation of powers is
still safe in the ambit of constitutional development in South Africa. However, this
notion was challenged by the Minister of Health and Others v Treatment Action
Campaign and Others (No 2) 2002 (5) 721 (CC).
In Minister of Health and Others supra, Botha J dealt with the separation of
powers doctrine and referred in his decision to Mohamed and Another v President of
the Republic of South Africa 2001 (3) SA 893 CC, which in his view, was correct.
Hopkins (2002b, 25) argues that in this regard the reference by the judge was
correct. The judge stated that the judiciary does have a constitutional imperative to
make a determination of the reasonableness of the government policies, in meeting

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the positive obligation of socio-economic rights. Hopkins (2002b, 25) further notes
the correctness of the judge's observation that, when the government sits in
judgment of government policies, it must not violate the separation of powers
doctrine, since this is part of the function of an independent judiciary. The judge was
also correct in pronouncing on the reasonableness of government policy and that his
pronouncement cannot be equated to making policy for the government. But, as
Hopkins (p. 25) subsequently points out, the judge then does not follow his own
reasoning by simply pronouncing on the reasonableness of the government policies;
he went further than a mere pronouncement and ordered the various MECs for
Health to provide Nevirapine to pregnant women and their babies. As Hopkins
argues, this order to the MECs is equivalent to the making of policy and is not
merely a pronouncement on the reasonableness of government policies. This is
policy-making and an overstepping of the boundary between judicial and executive
functions, and an intrusion into the normative principles of the separation of powers
doctrine.
Van Wyk (2003, 401) makes the same observation in a discussion of the
Treatment Action Campaign case. The Pretoria High Court actually went further than
both Grootboom and Soobramoney, where only the reasonableness of the existing
state policies on socio-economic matters, and not actual policy, was reviewed. Van
Wyk (p. 402) points out that in the case of Grootboom, the policy was found
wanting, but the Court did not draft a new policy for government, nor were specific
services identified that the government needed to provide. In Treatment Action
Campaign, the Pretoria High Court not only assessed the reasonableness of
government policy, but redrafted policy and made an order with budgetary
implications, namely to provide a specific drug to specific people. The Pretoria High
Court was criticised for going too far and having taken an executive decision by
making the provision of a drug a constitutional obligation.

Conclusion
In conclusion it is safe to say that the separation of powers doctrine in South Africa
is securely embedded in constitutional law development in the post-1993 period. The
supremacy of the Constitution and the constitutional principle of the separation of
powers, as part of the new constitutional arrangement, is and was a `contractual'
guarantee that the trias politica doctrine is part and parcel of the constitutional future
of South Africa.
Structurally and functionally, the perpetual fusion of the legislature and the
executive in the South African government is to a certain extent contrary to the
separation of powers doctrine. It is a central thesis of this doctrine that there must be
effective checks and balances of power and that the excessive concentration of
power in a single organ or person is an invitation for abuse or maladministration
(Devenish 1998, 12). However, the fusion of the legislative and executive branches
of government is contrary to the ideas of constitutionalism and limited government.

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The executive has a dominant presence in the legislative assembly and the ruling
party, the ANC, enjoys a two-thirds majority in the chamber, which amounts to an
over-concentration of power in a single institution. There is clear evidence that the
ANC previously had no hesitation in using that power if necessary, even if that
meant undermining the separation of powers doctrine. An example is the handling of
the controversial arms deal and the controversy surrounding the Heath Investigation
Unit in 2000. At its final session in 2000, the South African Parliament adopted the
report of its Standing Committee on Public Accounts (Scopa) calling for an inquiry
into the arms deal that excluded the Heath Unit. This was the result of pressure being
put on the legislative by the executive. As part of the executive's strategy the leader
of the ANC group of members and deputy chairperson, Mr Andrew Feinstein, was
removed from his position and replaced by an apparently less independent and more
pliant representative of the ANC. The separation of executive from the legislature is
an important feature of the separation of powers. Devenish (2003, 89) remarks that
in this regard the executive's influence on the composition of Scopa is cause for
concern. It also reflects adversely on the independence of parliament, which will
always be dominated by the executive in a fused model.
However, infringements will take place, and the major constitutional difference
from the pre-1993 period is the added value of the stronger judicial authority of the
courts and the entitlement to substantial judicial review. This constitutional
arrangement is an `institutionalised watchdog' that prevents (any) encroachment
between the different institutions, against a backdrop of an embedded constitutional
principle of separation of powers.
The acceptance and capacity of the separation of powers doctrine was proved in
a continuing line of judgments by the Constitutional Court, such as the Western
Cape Legislature & Others v President of the Republic of South Africa & Others
1995 (4) SA 887 (CC) 1995; Ex parte Chairperson of the Constitutional Assembly;
in re Certification of the Constitution of South Africa, 1996; Government of the
Republic of South Africa and Others v Grootboom and Others 2000 and Minister of
Health and Others v Treatment Action Campaign and Others. These cases serve as
proof that the Constitutional Court values the separation of power principle, and is
prepared to enforce this in its judgments.
It is also clear that, by including socio-economic rights in the bill of rights, the
Constitutional Court will have to play a more interventionist role in relation to
government policy. But what is important is that, judging by the line of decisions in
the matter, the Court has rarely overstepped the line to actually making policy
(which is an executive function). Furthermore, not every case of bad government
policy will require intervention from the courts and the Constitutional Court made it
clear that it will not lightly do so. The Treatment Action Campaign must therefore be
seen as the exception and not the rule. This was confirmed by a recent decision in
Bato Star Fishing (Pty) Ltd v The Minister of Environmental Affairs and Tourism
2003 Case CCT 27/03 where the Constitutional Court held that it is not for the

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courts to exercise powers that were entrusted to other institutions. The Court
furthermore stipulated that it is the task of the various courts to ensure that the
executive branch fulfils its functions free from interference. This is one of the
strongest messages in this regard and a further guarantee that the separation of
powers will be an important constitutional principle in future.
Hopkins's (2002) remark is a very valid one: `There is still good reason for
retaining the separation of powers in South African law and the case (Treatment
Action Campaign) does not represent the complete destruction of the doctrine, but
rather a development of a new kind of South Africanised doctrine.'
It is clear that the unique socio-economic needs in South Africa and the conflicts
enforcing these rights will in future test the resilience of the separation of powers
doctrine. However, the assurance is that the new constitutional dispensation will be
able to fulfil this new role.

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