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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