Judiciary Vs Legislature And Executive: Is The Principle of Separation of Powers Under Threat?

By Dr Lehlohonolo Kennedy Mahlatsi and Tiisetso ‘Afrika’ Makhele

Kennedy Mahlatsi Dr Lehlohonolo Mahlatsi

Tiisetso Makhele Tiisetso Makhele

The Constitution is the supreme law of the country and provides for a strikingly wide purview of judicial review, probably an important reason why it is held in such high esteem. The courts in South Africa are assigned powers to review and to declare administrative and executive conduct, as well as legislation, in all spheres of government, unconstitutional and invalid. Such extensive powers should make them more powerful than the judiciaries in most other jurisdictions.

The Constitutional Court is the apex court in relation to all constitutional matters and in a number of constitutional issues it exercises exclusive jurisdiction. It may also exercise appeal jurisdiction in relation to matters not constitutional in nature on the grounds that a matter raises an arguable point of law of general public importance. Except for this particular power, the Supreme Court of Appeal (SCA) is the highest court in all matters not of a constitutional nature and also has sweeping jurisdiction in constitutional matters, with a few exceptions which fall within the exclusive jurisdiction of the Constitutional Court. The High Courts are not courts of final instance, but in all other respects the subject matter of jurisdiction is essentially the same as that of the SCA. Especially in view of the South African courts’ broad review powers relating to legislation and executive acts, the judiciary has become a potentially important political actor which the other branches of government should heed.

Section 165(2) of the Constitution provides that the courts are subject only to the Constitution and the law, which they are required to apply impartially and without fear, favour or prejudice. Section 165(4) requires organs of state, through legislative and other measures, to assist and protect the courts to ensure their independence, impartiality, dignity, accessibility and effectiveness.

In the case of National Director of Public Prosecutions and Others v Freedom Under Law, the full bench of the Supreme Court of Appeal referred to the English case of R v Director of Public Prosecutions, Ex Parte C where it was held that:

‘It has been common ground before us in the light of the authorities that this Court does have power to review a decision of the Director of Public Prosecutions not to prosecute, but the authorities also show that the power is one to be sparingly exercised.’

Reversing the decision of High Court, the SCA held that: “The doctrine of separation of powers precludes the courts from impermissibly assuming the functions that fall within the domain of the executive. In terms of the Constitution the NDPP is the authority mandated to prosecute crime, while the Commissioner of Police is the authority mandated to manage and control the SAPS. As I see it, the court will only be allowed to interfere with this constitutional scheme on rare occasions and for compelling reasons … The setting aside of the withdrawal of the criminal charges and the disciplinary proceedings have the effect that the charges and the proceedings are automatically reinstated and it is for the executive authorities to deal with them. The court below went too far”.

The power conferred on our courts is irrefutably substantial. The SCA sends a clear warning that the power conferred on our courts should not be overemphasised as our judiciary is in the main limited to determinations of the constitutionality of laws made by the legislature and to the judging of the crimes or the disputes of individuals. It needs to be emphasised that all litigants, irrespective of their status, should be treated equally by our courts. Judges must therefore be wary of creating the impression – which would undoubtedly be unfounded in this case – that they have more respect for some litigants or their representatives than for others.

The independence of the judiciary entails more than merely an absence of undue influence, interference or control with the judicial function of the courts, but also contemplates a genuine accountability and meaningful relationship between the judiciary and the executive under our law and the Constitution. While judicial activism will no doubt to some extent encroach on government policy and performance, the judiciary, like all other organs and institutions established under our Constitution, remains accountable under the law and, as demonstrated by the SCA in this case, must adhere to and respect the doctrine of separation of powers and must function in unison with other organs of state.

The exhaustion of internal remedy seems to be the appropriate option to discourage political parties to abuse the access of courts for the narrow political agenda. At common law the duty to exhaust internal remedies is far less stringent. There is an authority for the proposition that common law requires that a court to condone a failure to pursue an available internal remedy only in certain circumstances; for instance, where that remedy is regarded as illusory or inadequate. Our Constitutional democracy provides for the available mechanisms and internal remedies before litigants can resort to courts for adjudication. We are of the view that our courts are simply ignoring exhaustion of internal remedies especially in politically sensitive matters where parties should deal with issues as in terms of the rules.

The courts must stand in an independent relationship to the legislature and the executive, and that judges must be in a position to discharge their functions free from interference of whatever nature and from whatever source. It would be unrealistic and incorrect to portray the judiciary as the supreme power centre in the constitutional system which the weak political branches must obey. Judicial independence does not imply a judiciary in the nature of a threatening opposition to the political branches. The judiciary, even one with sweeping powers of review such as the present South African judiciary, cannot on its own be an effective mechanism for the protection of individual and communal interests. It falls well short of securing a balanced constitution. However, such a mythical image of a supposedly all-powerful judiciary is often presented.

The aura of respectability and dignity surrounding judges has been breached from time to time, particularly in view of the not so significant fact that they have proved themselves to be human and hence prone to error. This has given rise to volumes of studies on the judiciary, most of which have left the judicial reputations untarnished. Others, however, have been fiercely and unremittingly critical.

To cite an example of such decisions, the Indian Supreme Court in April this year made a court decision that may very well be an example of judicial overreach. The Court made an order prohibiting the sale of liquor on national and state highways. This finding is made despite the fact that the Constitution of India regards the prohibition of liquor as a ‘directive principle’, which is better left to the government of the day.

In its report; The Roberts Court and Judicial Overreach (2013), Washington-based legal watchdog Alliance for Justice stated; “It has been well-documented that the Roberts Court consistently pursues an agenda that favours powerful corporate interests and the wealthy at the expense of everyday Americans. What is less well-known is that in order to reach these preferred outcomes, a bloc of five conservative justices has proven strikingly willing to engage in judicial activism by overreaching and twisting the law”. These and many other examples point to an extent to which the respectability of courts and judges have been compromised over time due to various reasons, including judicial overreach.

Professor Koos Malan, in his article entitled- “Reassessing Judicial Independence and Impartiality against the Backdrop of Judicial Appointments in South Africa, argues cogently that that judges, being senior members of the legal profession and well-versed in the rhetorical and doctrinal strategies of the legal discourse, can avail themselves of many techniques to express themselves convincingly in legal terms, and credibly to sustain the impression that their judicial decisions were genuinely and objectively reached and based on the applicable law and nothing else. Thus viewed, articulated legal reasoning is in itself a redoubtable political strategy for its ability to hide any extra-legal political considerations and motivations that might have been harboured when a politically sensitive decision was made.

It is important that courts must remain sensible to the legitimate constitutional interests of the other arms of government and avoids undue and unwarranted intrusion, while protecting fundamental rights, intrudes as little as possible in the terrain of the executive and legislature.   If the judiciary loses legitimacy with the political branches and ceases to be a cog in the state machine working in harmony with the other cogs, it runs the risk of losing the support of the political branches and its own effectiveness.

With the recent developments, we are worried that our country run the risk of legislative and executive matters being run by the courts. Judiciary must be respected but the intrusion of judiciary raises serious questions about its credibility. It is a crisis that the opposition parties are so desperately trying to achieve and render our hard-won democracy ineffective and meaningless.

In a classic example of a besiege of the principle of separation of powers, the North Gauteng High Court has ordered President Jacob Zuma to provide the record of all documents and electronic records (including correspondence, contracts, memoranda, advices, recommendations, evaluations and reports) that relate to the making of the decisions to fire Pravin Gordhan as Minister of Finance as well as the reasons for the decision. This judgment has been rightly criticized as unfettered encroachment of the judiciary into the realm of the executive – pandering to the whims of the opposition who want to co-govern with the popularly elected government through the courts. The appointments or dismissals of Cabinet ministers are highly charged political decisions and courts do not usually interfere with such decisions. It would be impossible to prove that the President indeed acted in bad faith or with an ulterior purpose.

Upon the insistence by the opposition parties, the Constitutional Court is currently considering whether the motion of no confidence against President Jacob Zuma could be taken by secret ballot. Our view is that opposition parties are opportunistically dragging the apex court to the matters reserved to Parliament in terms of the Constitution. This is one of the classic example of cases where the judiciary is abused with matters that should have been discussed by political parties in terms of the rules of Parliament. We are worried that conduct of the opposition parties in many cases is designed to undermine the independence of judiciary in burdening it with legislative and executive matters. These grandstanding and cheap political point-scoring inevitably casts doubts on the independence of judiciary and risk the accusation of, inter alia; judicial overreach.

Dr Lehlohonolo Kennedy Mahlatsi, SACP Free State PEC Member 

Tiisetso ‘Afrika’ Makhele, Spokesperson for Free State Premier Hon. Ace Magashule

Both authors are also members of the ANC Free State Political Education Sub-Committee. They write in their personal capacities.

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  1. I was nodding in agreement until I reached the final two paragraphs, that’s where I parted ways with the authors.

    Dear Paki Dlomo

    In a constitutional democracy, the majority view does not always win, and this is a good thing. There were eras were majorities believed that slavery was morally right, that women were less able than men (this latter belief is quite prevalent even today). Similar odious majoritarian beliefs exists in modern eras, for example, that some individuals are worthy of less rights because of their sexual orientation. The Constitution (the Bill of Rights) exists to protect individuals from pernicious majoritarian views.

    1. Dear Paki

      As we’ve come to learn, Mdu, like you, is no legal guru.

      I have sent your question to the authors and hopefully they will give you an answer soon.



  2. Well written and articulated. As much as I am not a legal guru, how will this affect the constitution moving forward….are we going to see the constitution being amended in case the judgement favours the applicants. Currently the opposition is using our judicial system to challenge what the majority view think is correct (Democratic principle, how is this also going to be avoided in the long run.

  3. What a beautiful and highly informative article! These are the sort of submissions which we expect to get from time to time : very carefully researched and presented . May I also state that I am very encouraged to note that one of the contributors is from the SACP . It is certainly comforting to know that there are still genuine communists in the party of Mabhida, Slovo and Hani . The apparent swing towards the right wherein we saw members of this once glorious organisation join forces with the champions of the far right and march side by side with the DA and its proxy and surrogate forces had those of us who have always held communists in the highest regard deeply dismayed and feeling deeply betrayed.
    Thanks Dr Mahlatsi for sending out the message that the glorious banner of the SACP can not be
    lifted side by side with that of the agents of white monopoly capital . The SACP cannot and must not be sold for thirty pieces of silver .

    1. Dear Greg

      Thank you too for your well thought-out responses. Im excited to have Comrades Kennedy and Tiisetso joining us as contributors.



  4. Comrades you are spot on.
    Thinking about the judiciary ordering the President to hand-over an intelligence report to people that are not even security checked, vetted and cleared by the the State security agency!
    Co-ordinator for Intelligence’ ……
    [Definition of ‘Co-ordinator for Intelligence’ deleted by s. 1 (d) of Act 37 of 1998.]
    ‘counter-intelligence’ means measures and activities conducted, instituted or taken to impede and
    to neutralise the effectiveness of foreign or hostile intelligence operations, to protect intelligence and any
    classified information, to conduct security screening investigations and to counter subversion, treason,
    sabotage and terrorism aimed at or against personnel, strategic installations or resources of the Republic;
    [Definition of ‘counter-intelligence’ substituted by s. 1 (a) of Act 67 of 2002.]
    ‘covert collection’ means the acquisition of information which cannot be obtained by overt means
    and for which complete and continuous secrecy is a requirement;
    ‘crime intelligence’ means intelligence used in the prevention of crime or to conduct criminal
    investigations and to prepare evidence for the purpose of law enforcement and the prosecution of offenders;
    ‘departmental intelligence’ means intelligence about any threat or potential threat to the national
    security and stability of the Republic which falls within the functions of a department of State, and includes
    intelligence needed by such department in order to neutralise such a threat;
    ‘domestic intelligence’ means intelligence on any internal activity, factor or development which is
    detrimental to the national stability of the Republic, as well as threats or potential threats to the constitutional
    order of the Republic and the safety and the well-being of its people;
    ‘domestic military intelligence’ means intelligence required for the planning and conduct of military
    operations within the Republic to ensure security and stability for its people;
    ‘evaluate’ means the process of determining and assessing whether or not information is possibly
    correct, probably correct or factually correct;
    ‘foreign intelligence’ means intelligence on any external threat or potential threat to the national
    interests of the Republic and its people, and intelligence regarding opportunities relevant to the protection
    and promotion of such national interests irrespective of whether or not it can be used in the formulation of the
    foreign policy of the Republic;
    ‘foreign military intelligence’ means intelligence regarding the war potential and military
    establishment of foreign countries (including their capabilities, intentions, strategies and tactics) which can be
    used by the Republic in the planning of its military forces in time of peace and for the conduct of military
    operations in time of war;
    ‘Minister’ means the President or the member of Cabinet designated by the President to assume the
    responsibility for intelligence services as contemplated in section 209 (2) of the Constitution;

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