Chief Justice Sandile Ngcobo’s separation of powers jurisprudence
| Author | Mtendeweka Mhango |
| DOI | 10.25159/2522-6800/3572 |
| Published date | 01 August 2017 |
| Date | 01 August 2017 |
| Pages | 1-33 |
1
https://doi.org/10.25159/2522-6800/3572
ISSN 2522-6800 (Online) | ISSN 2219-6412 (Print)
© Unisa Press 2017
Southern African Public Law
https://upjournals.co.za/index.php/SAPL/index
Volume 32 | Number 1 and 2 | 2017 | pp.1–33
ARTICLE
Chief Justice Sandile Ngcobo’s Separation of Powers
Jurisprudence
Mtendeweka Mhango
Adjunct Professor, Nelson Mandela School of Law
University of Fort Hare
Email: mtendemhango@gmail.com
ABSTRACT
This article examines Justice Ngcobo’s profound contribution to the development of the
foundational jurisprudence on the separation of powers in South Africa; it is premised
on the fact that Ngcobo J can be better understood in the context of his contribution to
the foundational jurisprudence. In this way, we will better comprehend how Ngcobo J’s
jurisprudence ts into our contemporary understanding of the Constitution. The key
question I seek to investigate is to what extent Ngcobo’s jurisprudence on the separation of
powers has inuenced or shaped South African constitutional law. In doing so, I specically
investigate whether Ngcobo J developed a political question doctrine theory for South Africa.
I nd that he did, and that while the learned Judge’s political question jurisprudence was not
clearly articulated or endorsed by the majority of the justices while he was on the Bench,
the Constitutional Court has recently unanimously endorsed some of his political question
doctrine theories and arguments. In doing so, they have served to crystallise the political
question theory in South Africa. The article examines Ngcobo’s contribution through both the
lens of the judgments that he penned and his academic commentaries.
Keywords: separation of powers; judicial review; political question; doctrine theory; constitu-
tional jurisprudence
Background and Introduction
The Constitution of the Republic of South Africa, 1996 (‘the Constitution’) establishes
three branches of the State, namely the Legislature, the Executive and the Judiciary.1
Chapter four of the Constitution establishes parliament, which consists of two houses:
the National Assembly and the National Council of Provinces (NCOP). The main
1 See chs 4, 5 and 8 of the Constitution.
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Mhango Ngcobo’s Separation of Powers Jurisprudence
functions of parliament are to pass legislation, to scrutinise and oversee Executive
action, including the implementation of legislation, and to provide a national forum for
public consideration of issues.2 The allocation of these functions to parliament is based
on the constitutional theory that parliament is a branch that is representative of the many
dierent interests of South African society, so that what emerges from parliament will
respect and reect the nation’s varied interests.3
The Constitution vests executive authority in the president:4 Chapter ve confers on the
Executive the authority and function to implement the laws, develop and implement
national policy and initiate legislation.5 The allocation of these functions to a single
president is based on the constitutional theory that the president can act swiftly without
the need to harmonise conicting interests.6 This is why in some areas, such as foreign
relations or defence, the president is either constitutionally permitted to act without the
need to obtain prior legislative approval or is solely responsible to act.7 To illustrate,
sections 201 and 203 of the Constitution, respectively, permit the president as head of
2 See ss 42(3) and 55(2) of the Constitution.
3 See Democratic Alliance v Masondo 2002 (2) SA 413 (CC) paras 42–43. Sachs J’s concurring opinion
held that ‘the Constitution does not envisage a mathematical form of democracy, where the winner-
takes-all until the next vote-counting exercise occurs. Rather, it contemplates a pluralistic democracy
where continuous respect is given to the rights of all to be heard and have their views considered.
The dialogic nature of deliberative democracy has its roots both in international democratic practice
and indigenous African tradition … The open and deliberative nature of the process goes further
than providing a dignied and meaningful role for all participants. It is calculated to produce better
outcomes through subjecting laws and governmental action to the test of critical debate, rather than
basing them on unilateral decision-making. It should be underlined that the responsibility for serious
and meaningful deliberation and decision-making rests not only on the majority, but on minority
groups as well. In the end, the endeavours of both majority and minority parties should be directed
not to exercising … of power for its own sake, but at achieving a just society … At the same time, the
Constitution does not envisage endless debate with a view to satisfying the needs and interests of all.
Majority rule, within the framework of fundamental rights, presupposes that after proper deliberative
procedures have been followed, decisions are taken and become binding.’ See also Burt Neuborne,
‘The Last Walls’ (Paper presented in the Great Hall at The Cooper Union, 13 December 2012) <https://
www.youtube.com/watch?v=ATK7FftBiF4>. See also Burt Neuborne, ‘Felix Frankfurter’s Revenge:
An Accidental Democracy Built by Judges’ (2011) 35 NYU Review of Law and Social Change 602.
4 Section 85 of the Constitution. See Mtendeweka Mhango, ‘Constitutional Eighteenth Amendment
Bill: An Unnecessary Amendment to the South Africa Constitution’ (2014) 35 Statute Law Review
19–34 (arguing that s 85 means that under the South African Constitution a single president possesses
the entirety of the executive authority, which he or she exercises together with the Cabinet).
5 See s 85(1) and (2) of the Constitution.
6 Neuborne (n 3).
7 See Kaunda v President of the Republic of South Africa 2005 (4) SA 235 (CC) para 244, where it was
held that ‘it is clear from the existing jurisprudence of this Court that all exercise of public power is to
some extent justiciable under our Constitution, but the precise scope of the justiciability will depend
on a range of factors including the nature of the power being exercised. Given that the duty to provide
diplomatic protection can only be fullled by government in the conduct of foreign relations, the
executive must be aorded considerable latitude to determine how best the duty should be carried out’
[author’s emphasis].
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Mhango Ngcobo’s Separation of Powers Jurisprudence
the national Executive to authorise the employment of the defence force in defence of the
Republic or the fullment of an international obligation, or to declare a state of national
defence without obtaining prior approval from parliament. In addition, section 231 of
the Constitution entrusts the national Executive with the responsibility for negotiating
and signing all international agreements.8 Section 231(3) provides that
an international agreement of a technical, administrative or executive nature, or an agreement
which does not require either ratication or accession, entered into by the national executive,
binds the Republic without approval by the National Assembly and the National Council of
Provinces, but must be tabled in the Assembly and the Council within a reasonable time.
There are several other areas where the president, when acting as a Head of State, is
constitutionally permitted to act without prior approval, such as in pardoning convicted
oenders,9 appointing commissions of inquiry10 and conferring honours.11
8 See Glenister v President of the Republic of South Africa 2011 (3) SA 347 (CC) para 89, where
it is explained that ‘the constitutional scheme of section 231 is deeply rooted in the separation of
powers, in particular the checks and balances between the executive and the legislature … it assigns
to the national executive the authority to negotiate and sign international agreements… requires
approval by resolution of Parliament.’ But see Law Society of South Africa, reporting that the Law
Society of South Africa had launched an application in the Gauteng High Court on 19 March 2015
to declare the actions of the president as well as the ministers of Justice and International Relations
and Cooperation in voting for, signing and planning to ratify the SADC Summit Protocol in 2014
as it relates to the SADC Tribunal, to be unconstitutional <http://www.lssa.org.za/our-initiatives/
advocacy/sadc-tribunal-matter>; News24 Reporter, ‘DA Takes ICC Withdrawal Decision to the
High Court’ Hungton Post (5 December 2016) <http://www.hungtonpost.co.za/2016/12/05/da/>
accessed 17 November 2017, reporting that the Democratic Alliance was to challenge the decision by
the government to withdraw from the International Criminal Court as unconstitutional.
9 See s 84 of the Constitution. See also President of the Republic of South Africa v South African Rugby
Football Union 2000 (1) SA 1; President of the Republic of South Africa v Hugo 1997 (6) BCLR 708
(CC).
10 South African Rugby Football Union (n 9) para 146, where it was held that ‘section 84(2) powers are
discretionary powers conferred upon the President which are not constrained in any express manner
by the provisions of the Constitution. Their scope is narrow: the conferral of honours; the appointment
of ambassadors; the reception and recognition of foreign diplomatic representatives; the calling of
referenda; the appointment of commissions of inquiry and the pardoning of oenders. They are closely
related to policy; none of them is concerned with the implementation of legislation. Several of them
are decisions which result in little or no further action by the government: the conferral of honours,
the appointment of ambassadors or the reception of foreign diplomats, for example … In the case of
the appointment of commissions of inquiry, it is well-established that the functions of a commission
of inquiry are to determine facts and to advise the President through the making of recommendations.
The President is bound neither to accept the commissions factual ndings nor is he or she bound to
follow its recommendations.’
11 See Mansingh v General Council of the Bar 2014 (2) SA 26 (CC); General Council of the Bar v
Mansingh 2013 (3) SA 294 (SCA); Mansingh v President of the Republic of South Africa 2012 (3) SA
192 (GNP).
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