Deputy Chief Justice Moseneke’s approach to the separation of powers in South Africa

• Jurisdiction: South Africa
• Citation: 2017 Acta Juridica 75
• Date: 15 August 2019
• Published date: 15 August 2019
• Pages: 75-98
• Author: Mhango, M.

Deputy

Chief

Justice

Moseneke’s

approach

to

the

separation

of

powers

in

South

Africa

†

MTENDEWEKA

MHANGO

&

NTOMBIZOZUKO

‡

DYANI-MHANGO

This

paper

is

premised

on

the

proposition

that

there

is

a

need

for

the

development

of

a

separation

of

principle,

which

incorporates

a

lucid

political

question

doctrine

that

will

assist

the

country

to

dispose

of

political

questions

that

come

to

the

courts

for

adjudication.

In

this

regard,

we

address

two

things:

f‌irstly,

we

examine

Moseneke

DCJ’s

jurisprudence

on

separation

of

powers

in

two

specif‌ic

and

related

cases

in

International

Trade

Administration

Commission

v

SCAW

South

Africa,

and

National

Treasury

v

Opposition

to

Urban

Tolling

Alliance,

where

he

penned

majority

opinions.

These

cases

are

related

because

Moseneke

DCJ

builds

on

the

theme

of

the

separation

of

powers

that

he

pronounced

in

International

Trade

Administration

Commission

v

SCAW

South

Africa,

when

he

resolved

the

issue

in

National

Treasury

v

Opposition

to

Urban

Tolling

Alliance.

In

examining

this

jurisprudence,

we

are

critical

of

Moseneke

DCJ’s

failure

to

contribute

to

the

development

of

a

coherent

political

question

doctrine

for

South

Africa,

which

def‌ines

the

scope

and

contours

for

judicial

authority,

and

for

being

unable

to

provide

cogent

reasons

in

some

of

his

academic

commentaries

against

the

application

of

such

principle

of

restraint.

The

Constitution

gives

the

judiciary

power

to

interpret

and

enforce

the

Constitution

and

I

do

not

think

that

this

independence

enables

the

judiciary

to

do

what

it

likes

by

undertaking

incursions

into

territory

reserved

for

Parliament

and

the

Executive.

This

court

should

not

behave

like

an

octopus

stretching

its

eight

tentacles

here

and

there

to

grab

jurisdiction

not

constitutionally

meant

for

it.

1

–

Justice

Kpegah,

Supreme

Court

of

Ghana

I

BACKGROUND

The

Constitution

of

the

Republic

of

South

Africa,

1996

(Constitution)

was

born

out

of

the

political

negotiations

at

the

Convention

for

a

Democratic

South

African

(CODESA),

where

an

agreement

was

reached

that

the

Constitution

would

be

drafted

based

on

34

pre-approved

†

BA

(Morehead),

JD

(Michigan),

LLM

(Wayne),

PG

Dip

Com

Law

(UCT)

Adjunct

Professor,

Nelson

Mandela

School

of

Law,

University

of

Fort

Hare.

‡

LLB

LLM

(UWC),

LLD

(Wisconsin-Madison)

Associate

Professor,

School

of

Law,

University

of

the

Witwatersrand,

Johannesburg.

1

Amidu

v

President

Kufuor

(2001–2002)

SCGLR

154.

75

2017 Acta Juridica 75

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constitutional principles. For our purposes, Constitutional Principle VI,

which stated that ‘[t]here shall be a separation of powers between the

legislature, executive and judiciary, with appropriate checks and balances

to ensure accountability, responsiveness and openness’, is the most rel-

evant. In In Re Certif‌ication of the Constitution of the Republic of South Africa,

2

the Constitutional Court certif‌ied that the Constitution complied with

the requirement for separation of powers envisaged in the Constitutional

Principle VI, and commented that:

The principle of separation of powers, on the one hand, recognises the

functional independence of branches of government. On the other hand, the

principle of checks and balances focuses on the desirability of ensuring that the

constitutional order, as a totality, prevents the branches of government from

usurping power from one another. In this sense it anticipates the necessary or

unavoidable intrusion of one branch on the terrain of another. No constitu-

tional scheme can ref‌lect a complete separation of powers.

3

In De Lange v Smuts, one of the earliest cases dealing with separation of

powers, Justice Ackerman made an important statement about the source

and status of the principle of separation of powers in South Africa:

[I]n our f‌irst certif‌ication judgment dealing with the 1996 Constitution, we

stated that although it is clear that pursuant to Constitutional Principle VI the

Constitution provides for a system of separation of powers among the three

co-equal branches of government, there is no universal model of separation of

powers. I have no doubt that over time our courts will develop a distinctively

South African model of separation of powers, one that ref‌lects a delicate

balancing . . . between the need, on the one hand, to control government by

separating powers and enforcing checks and balances, and, on the other, to

avoid diffusing power so completely that the government is unable to take

timely measures in the public interest.

4

A few years later in South African Association of Personal Injury Lawyers v

Heath,

5

the court reiterated the above principle when it dismissed a High

Court ruling that held that since ‘under our Constitution there is no

express provision dealing with the separation of powers, it was not

competent for a court to set aside a legislative provision on the basis that it

violates what is no more than a tacit principle of the Constitution’. Justice

Chaskalson, who wrote for the majority, rejected the idea that ‘an implicit

provision of the Constitution has any less force than an express provision’.

He reasoned that ‘in Fedsure Life Assurance Ltd v Greater Johannesburg

2

Ex Parte Chairperson of the Constitutional Assembly: In Re Certif‌ication of the Constitution of the

Republic of South Africa, 1996 1996 (4) SA744 (CC).

3

Certif‌ication (n 2) para 109.

4

De Lange v Smuts NO and Others 1998 (3) SA785 (CC) at paras 60–1.

5

South African Association of Personal Injury Lawyers v Heath and Others 2001 (1) SA 883 (CC).

76 A WARRIOR FOR JUSTICE

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