Jaco Barnard-Naude
Jaco Barnard-Naude

Zuma reignites separation of powers debate

Yesterday, President Jacob Zuma used the joint sitting of Parliament — convened to bid farewell to former chief justice Sandile Ngcobo and welcome newly appointed Chief Justice Mogoeng Mogoeng — to reiterate the ANC’s views on the separation of powers. According to a report in Business Day, Zuma said “we” “wish to reiterate our view that there is a need to distinguish the areas of responsibility between the judiciary and the elected branches of the state, especially with regards to policy formulation”.

He continued that “the executive, as elected officials, has the sole discretion to decide policies for government”. He referred to the “encroachment” of one branch of government on the terrain of another and warned that this had to be discouraged. In this context he emphasised that the judiciary needed to respect the executive and the legislature in the same way as these branches respect it. “The powers conferred on the courts cannot be regarded as superior to the powers resulting from a mandate given by the people in a popular vote. We must not get a sense that there are those who wish to co-govern the country through the courts, when they have not won the popular vote during elections.”

It so happens that I have on my desk a copy of the 2011(1) edition of the Stellenbosch Law Review in which is published the law faculty’s annual human rights lecture given in October 2010 by Ngcobo. The topic of the lecture is “South Africa’s transformative Constitution: towards an appropriate doctrine of the separation of powers”. Ngcobo opens the lecture by quoting Montesquieu to the effect that there can be no “liberty” if the judiciary, legislature and executive are not separate. Ngcobo continues to reflect on what a distinctively South African model of the separation of powers might entail. In this context Ngcobo notes explicitly that the Constitution “does not require an absolute, categorical division of institutions, powers and functions. It contemplates that there will be some encroachment upon one branch by another branch or branches, resulting in the lines between the branches being blurred at times”. Furthermore, our Constitution contemplates an interaction between the branches of government, known in the literature as a “constitutional dialogue”.

Yet Ngcobo is at pains to point out that the Constitutional Court is the final arbiter when it comes to deciding whether a branch of government has exercised its powers in accordance with the Constitution or not: “It is a necessary component of the doctrine of the separation of powers that courts have a constitutional obligation to ensure that the exercise of power by the other branches of government occurs within constitutional bounds.” In fact, Ngcobo argues that the final text of the Constitution itself is a product of judicial review, given that it had to be certified by the Constitutional Court. The former chief justice goes on to refer to a number of cases in which the Constitutional Court, in different ways, ordered government to comply with the Constitution.

Ngcobo’s lecture reflects a careful and nuanced understanding of the doctrine of separation of powers in a South African context and in the context of a post-liberal Constitution in which the distinction between law and politics (or legislation and policy) is not always as clear as some would want it to be. While it may be true that “the executive has the sole discretion to decide policies for government” it is the judiciary’s responsibility to decide whether those policies expressed in legislation and conduct pass constitutional muster. After all, that is what constitutional sovereignty means — conduct and law inconsistent with the Constitution is invalid. Zuma and the ANC’s insistence on a rigid separation of the branches of government is contrary to the Constitutional Court’s established jurisprudence and international academic consensus that the separation of powers is always only relative. The relativity of the separation of powers doctrine does not translate into a legitimation of “encroachments” by one branch of government on another.

The system of checks and balances in the context of cooperative government rather implies that it is the constitutional duty of all branches of government to scrutinise the exercise of power by any one particular branch. And this does not mean that the separation does not exist — courts, for instance, are not legislatures in the sense that they do not make law out of nothing: they are constrained by the legal materials that they have to interpret, which includes the Constitution. The hoped for separation of powers that underlies Zuma and the ANC’s statements in this regard is in fact a separation that exists nowhere.

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    • Bram Fischer

      If only Zuma had said ““wish to reiterate our view that there is a need to distinguish the areas of responsibility between the judiciary and the elected branches of the state, especially with regards to administration of justice”. If only Zuma had pleaded with the executive not to interfere with the judiciary – the real threat – the real risk which may destroy the SA democracy – not the other way round. If only Zuma had said that politics, and politicians are BELOW the courts, not the other way round. Politicians are usually slimeballs – judges MUST be professionals . Zuma has made an error of judgement so enormous – so absolutely devastating – it is almost beyond belief his own judgment is so poor. It has to be the lowlight of his presidency.

    • Brian Bunting

      “The powers conferred on the courts cannot be regarded as superior to the powers resulting from a mandate given by the people in a popular vote. We must not get a sense that there are those who wish to co-govern the country through the courts, when they have not won the popular vote during elections.” You are so wrong, Mr Zuma. You are so wrong here, it is not funny. The popular vote will be your downfall. The professionalism of the courts – still not destroyed – will be your saviour. And the nation’s.

    • Julian Knight

      He sounds more and more like P.W Botha what is it with a Politicians brain that makes them incapable of distinguishing between the Party and the State?

    • MLH

      Having been at my desk for ten hours today, I could be misinterpreting your message. I assume it is that Ngcobo makes a good point two? Which makes my point: I’m impressed that you didn’t shove your opinion down my throat!

    • Peter Joffe

      The National elections are held under the banner of existing laws and norms. They are not held to give the winners free reign to do whatever they like there after unless it is within those bounds.
      This misconception or purposeful misconception is designed to give the ANC freedom to change laws, the constitution or whatever they like. In effect what Zuma is trying to do is to change the constitution to suit the desires of the corrupt and inept ANC. With regards to his biggest problem, the Arms Deal he has stated that he is willing to testify but has not said that he will tell the truth? Will his testimony rate alongside his promises where we all know what will result from his promises.
      Is he going to testify or is he going to liestify? Any Stalinist inclinations of a ruling party find the courts a great inconvenience unless they want to use those courts to convict opponents on trumped up charges!
      Look no further than Zimbabwe to see how the courts can become a partner in oppression and injustice.
      If Zuma testifies truthfully it is likely that he will exchange his presidential office for one that has bars on it. The laws have to therefore be changed so that this will not happen.

    • mikeA

      Effectively, the President was using a straw man argument. He was positing that the courts have sought to be “superior” to the Executive, and that certain “people” have sought to co-govern through the Courts. Actually, what has taken place is that the courts have made rulings in response to actions brought, that the Executive has, at times, not acted consistently witht he requirements of the Constitution.

      In issuing orders to the Executive, the Court is not assuming a superior position. It is the Constitution that is superior. The Court has merely carried out its designated role of ruling on the constitutionality (or otherwise) of the Executive’s actions.

      The effect of the President’s statements is not to assert the role of the Executive as against that of the Court, but is rather to assert implicitly the superiority of the Executive over the Constitution.

    • Bovril24


      You’ve nailed the prime ‘uneasy utterance’. It smells of the ANC’s psuedo-people dictatorship.

    • http://www.cindynel.co.za peter

      It seems quite clear that JZ feels intimidated by the judiciary and requires that they are his lapdogs or else. His point of view about who is superior to whom is quite ludicrous, but when one speaks with a forked tongue anything can be misconstrued.

    • Sterling Ferguson

      What Zuma is saying is very dangerous because he wants to take away the power of the courts to review the laws made by parliament. One should not make no mistake by thinking this is Zuma’s thinking because this is the policy of the ANC. The ANC believes the media and the courts are a threat to their power and they do not want to share power with any other branch of government. Many prople are blaming Zuma for the thing he is doing but, one has to look at the power behind the throne in the ANC.