The doctrine of separation of powers - sabar.co.za

1 37 AdvocateApril paper seeks to discuss the import and impact of the doctrineof separation of powers ( the doctrine ) in South Africa. It discussesthe meaning of the doctrine , its origin, historical development,its main objectives (in line with the writer s views), its place inour Constitution and its application by the Constitutional doctrine is discussed in the context of seeking to contributetowards a debate on whether there is an off-side rule in its practicalapplication. A brief comparative overview of the some foreignconstitutions on the doctrine is presented as a prelude to theconclusion of separation of powersMeaning of separation of powersMeaning of separation of powersMeaning of separation of powersMeaning of separation of powersThe doctrine means that specific functions, duties and respon-sibilities are allocated to distinctive institutions with a definedmeans of competence and jurisdiction.

2 It is a separation of threemain spheres of government, namely, Legislative, Executive andJudiciary. Within the constitutional framework the meaning ofthe terms legislative, executive and judicial authority are of im-portance:(a) Legislative authority Is the power to make, amend andrepeal rules of law.(b) Executive authority Is the power to execute and enforcerules of law.(c) Judicial authority Is the power ; if there is a dispute, todetermine what the law is and how it should be applied inthe doctrine of separation of powers means ordinarily that ifone of the three spheres of government is responsible for theenactment of rules of law, that body shall not also be chargedwith their execution or with judicial decision about them.

3 Thesame will be said of the executive authority, it is not supposed toenact law or to administer justice and the judicial authority shouldnot enact or execute Mustill in R v Home Secretary, Ex p Fine Brigades Union2defined the doctrine of separation of powers in England as: It is a feature of the peculiary British conception of the Sepa-ration of powers that Parliament, the executive and the courtshave each their distinct and largely exclusive domain. Parliamenthas a legally unchallengeable right to make whatever laws itthinks right.

4 The executive carries on the administration of thecountry in accordance with the powers conferred on it by courts interpret the laws, and see that they are obeyed. The meaning of separation of powers in United States of Americaand France shows a variety of meanings. The concept may meanat least three different things:(a) That the same person should not form part of more thanone of the three organs of government, for example, thatministers should not sit in parliament;(b) that one organ of government should not control or interferewith the work of another, for example, that the executive shouldnot interfere in judicial decisions.

5 (c) that one organ of government should not exercise thefunctions of another, for example, that ministers should nothave legislative should not be lost of the fact that complete separation ofpowers is not possible -neither in theory nor in practice. Someoverlapping is unavoidable; given the fact that we talk here ofspheres of what is in fact one origin of the doctrine of separation of powersThe origin of the doctrine of separation of powersThe origin of the doctrine of separation of powersThe origin of the doctrine of separation of powersThe origin of the doctrine of separation of powersThe modern design of the doctrine of separation of powers is tobe found in the constitutional theory of John Locke (1632-1704).

6 He wrote in his second treaties of Civil Government as follows: It may be too great a temptation for the humane frailty, apt tograsp at powers , for the same persons who have power of makinglaws, to have also in their hands the power to execute them,whereby they may exempt themselves from the law, both in itsmaking and execution to their own private advantage .4It is clear that he was advocating the division of governmentfunctions into legislative, executive and judicial.

7 However it isthe French philosopher (jurist) Montesquieu (1689 1755) who isusually credited with the first formulation of the doctrine ofseparation of powers . He based his exposition on the BritishConstitution. In the pertinent chapter of his well celebrated work,L Esprit des Lois (1748),5 he purported to describe the BritishConstitutional system of the 18th Century6 so that it might serveas an example to France of a political dispensation founded onliberty, which according to him, was the supreme objective of apolitical society.

8 JD van Der Vyver observed that Montesquieuwas a poor observer, since the British constitutional system didnot comply then, neither does it today, with the basic norms ofthe idea of separation of Even if it were so, Montesquieu sanalysis of the British system, is generally accepted as politicalideal which is worth recognised the three basic pillars of stateauthority, which includes the executive, legislature and the judicial* Paper delivered at the Middle Temple South Africa Conference, September doctrine of separation of powers (a South African perspective)*by Judge Phineas M Mojapelo, Deputy Judge President of the Southern Gauteng High Court38 AdvocateApril 2013functions; and he added that these functions ought to vest inthree distinct governmental organs with, in each instance, differentoffice bearers.

9 He supported his argument by saying:8 All would be in vain if the same person, or the same body ofofficials, be it the nobility or the people, were to exercise thesethree powers : that of making laws, that of executing the publicresolutions, and that of judging crimes or disputes of individuals .His idea eventually developed into a norm consisting of fourbasic principles:9(a) The principle of trias politica, which simply requires a formaldistinction to be made between the legislative, executive andjudiciary components of the state authority.

10 (b) The principle of separation of personnel, which requires thatthe power of legislation, administration and adjudication bevested in three distinct organs of state authority and thateach one of those organs be staffed with different officialsand employees, that is to say, a person serving in the oneorgan of state authority is disqualified from serving in any ofthe others.(c) The principle of the separation of functions which demandsthat every organ of state authority be entrusted with itsappropriate functions only, that is to say, the legislature oughtto legislate, the executive to confine its activities to ad-ministering the affairs of the state, and the judiciary to restrictitself to the function of adjudication.