You will agree with me that the concept of Separation of Powers has some features that makes it very important. It undertakes to examine how the Constitutional Court in South Africa has fared in its role of being the guardian of the Constitution as well as the protector of democratic values while adhering to the doctrine of separation of powers. HAS THE SOUTH AFRICAN CONSTITUTIONAL COURT OVER-REACHED? rent understanding of the separation of powers.1 In this consideration of the doctrine I look at a particularly interesting trilogy of court challenges which illustrates the difficulty of the application of the doctrine of separation of powers in South Africa. The separation of powers is an approach to governing a state.Under it, a state's government is divided into branches, each with separate, independent powers and responsibilities so that the powers of one branch are not in conflict with those of the other branches. This constitutional arrangement inhibited the separation of powers between the legislature, the executive and the judiciary. South African model of separation of powers, one that fits the particular system of government provided for in the Constitution and that reflects a delicate balancing, informed both by South Africa’s history and its new dispensation, between the need, on the one SUNPRESS: Stellenbosch Chapter 6 (p 131-173) 1. Powers in a democracy are held by the people as the popular sovereign. Such a separation limits arbitrary excesses by government, since the sanction of all three branches is required for the making, executing, and administering of laws. Separation of powers is not a doctrine in the sense of positive law; it is a political theory concerning the system of allocation of governmental powers. South African Context NE Mathebula and PH Munzhedzi* Abstract: Trias politica is an idea aimed at ensuring strict separation of powers between the legislature, executive and judiciary. Not Powers but Functions: Montesquieu labels his theory as ‘separation of powers’. This study focused on analysing the principle of separation of powers at local government level, while navigating through the political and administrative dichotomy in South Africa. 5 E Fagan ‘Roman Dutch Law in its South African Historical Context’ in R Zmmerman & D Visser (eds)Southern Cross: Civil Law and Commercial Law in South Africa 32. violations and disregard for the rule of law and the principle of separation of powers, still holding the centre stage. separation of powers are threatened. In this article, i will be discussing some of the importance of Separation of Powers in a state. When politicians invoke the system of separation of powers they inadvertently also invite us to consider the ways in which the system of checks and balances limit their own power. its application in South Africa. 4. The separation of powers is important because it provides a vital system of ‘checks and balances’: Firstly, it ensures that the different branches control each other. judiciary), retains powers of judicial review over the laws passed by Parliament and decisions taken by 4 Ibid at 193. 26 While the “rule of law” is expressly referred to in sec 1 of the Constitution as one of South Africa's founding values, “separation of powers” is not mentioned. CRITICAL PERSPECTIVES ON SEPARATION OF POWERS AND THE INDEPENDENCE AND IMPARTIALITY OF THE JUDICIARY This discussion is based on Malan, K. 2019. However, this constitutional arrangement changed dramatically with the adoption of the … The origins of the doctrine of separation of powers can be traced back as far as ancient Greece. 7 The legislature makes law, the judiciary interprets the law, and the executive must implement the law. As one South African judge recently warned in Mazibuko v Sisulu1 there is a threat to judicial independence when the judiciary is drawn in to resolve political questions that are beyond its competence or jurisdiction.2 He further said: power, „discontinous legislative power‟ implies the rule making power, „federative power‟ signifies the power regulating the foreign affairs.1 The French Jurist Montesquieu in his book L. Esprit Des Lois (Spirit of Laws) published in 1748, for the first time enunciated the principle of separation of powers. The typical division is into three branches: a legislature, an executive, and a judiciary, which is the trias politica model. 2.3 Separation of powers and rule of law 9 2.4 International standards of judicial appointment, security of tenure and removal procedures 12 2.5 Judicial independence and democratic governance 14 2.6 Conclusion 16 CHAPTER THREE: JUDICIAL INDEPENDENCE IN ZAMBIA AND SOUTH AFRICA IN A … seeking to increase the power of their own branch. The remarks made on Friday by President Jacob Zuma in front of an audience of judges at the Access to Justice conference in Johannesburg, has elicited much comment. This is intended to make them accountable to each other – these are the ‘checks’. This constitutional provision is adopted from a century old principle of trias politica which stipulates that power … 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 … President Zuma and the separation of powers. It was made popu-lar much later by French philosopher Charles de Montesquieu in 1748 in his work L'Esprit des Lois (the Spirit of the Laws). Stephen Gardbaum * Over the past dozen years or so, the South African Constitutional Court has dramatically shed the general reluctance it had shared with courts around the world to review legislative processes as distinct from outcomes. Separation of Powers: Origins In order to fully illuminate the contemporary implications of our separation of powers system, it is helpful to understand its origins. The doctrine of separation of powers is at the centre of modern democratic principles of governance. It is noteworthy that the philosophy is not legislated in South Africa through an Act of parliament but takes form through the provisions of functions, 7. and another v President of the Republic of South Africa and others (Marikana 1)2, the Constitutional Court based its reasons for refusing to grant the interim relief sought in both cases on the doctrine of separation of powers. A STUDY OF THE COURT’S APPLICATION OF THE SEPARATION OF POWERS DOCTRINE BETWEEN 2009 AND 2013. The Constitution of the Republic of South Africa of 1996 (1996 Constitution) makes a provision that there shall be separation of powers between the legislature, executive and judiciary, with appropriate checks and balances to ensure accountability, responsiveness and openness. In fact, the word ‘powers’ should not have been used. PDF | F W De Klerk ... of the doctrine of separation of powers under the South African ... does not foreclose the arms of government from checks and balances of power in South Africa. 12 Pieter Labuschagne, ‘The Doctrine of Separation of Powers and Its Application in South Africa’ (2004) 23 Politeia 87. 14 Sebastian Seedorf & Sanele Sibanda, Separation of Powers, in Stu Woolman, Theunis Roux, “South Africans did not establish this court to be another rubber stamp. importance of separation of powers in south africa. There is no Supreme Constitution: A Critique of Statist-individualist Constitutionalism. Separation of powers, division of the legislative, executive, and judicial functions of government among separate and independent bodies. 13 Nicholas W Barber, ‘Prelude to the Separation of Powers’ (2001) 60 Cambridge Law Journal 59, 60. Those importance features will be explicitly explained as we continue. Glenister, a South African … South Africa's post-apartheid constitutional order is characterized by an abiding tension, between a popular, democratically elected, ruling party – the political system might best be described as a unipolar democracy – and a constitutional promise of democratic accountability. The doctrine of separation of powers and. fessor Kurland, I believe the separation of powers continues to play a role in protecting liberty in America.8 It is not a precision tool for this South African Appellate Division's decisions in cases dealing with the state of emer-gency). He wrote that a nation's freedom depended on the three powers of governance - legislative, executive and He should have used the word ‘function’ instead. South Africa is a constitutional democracy that encompasses the principle of separation of powers, based on the trias politica principle, which refers to the division of governmental power into three branches, namely the legislature, executive and judiciary. Judicial independence is an important component of democracy in the modern state. The Opposition to Urban Tolling Alliance (OUTA) had approached the Court in SANRAL 1,3 to interdict the South African 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. Pieter Labuschagne Department of Political Sciences University of South Africa e-mail: labuspah@unisa.ac.za. this paper endeavours to discuss five articles from the Zambian 6 Q Zhang An Introduction to Chinese History and Culture (2015). We expect you to be creative and independent. 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