B Mabandla: Konrad Adenauer Foundation Rule of Law Conference

8 November 2006

Programme director
Chief Justice Langa
Honoured Members of the Judiciary
Distinguished guests
Ladies and gentlemen

It is both an honour and a great pleasure for me to address you at this
conference. I would also like to welcome everyone, but especially our visitors
from abroad who will be sharing their experiences with us on the question of
separation of powers in sub-Saharan Africa. This is an important event as it
addresses a very topical and exciting theme–the separation of powers. Ladies
and gentlemen, the doctrine of separation of powers is a fundamental feature of
many democratic systems in Sub-Saharan Africa and indeed all over the world.
The principle of separation of powers, while not clearly spelled out in the
final South African constitution, has been tacitly incorporated in our
constitution, and underlies the South African constitutional order. In fact
this doctrine was captured as early as the Interim Constitution of 1993 which
stated that, "There shall be a separation of powers between the legislature,
executive and judiciary, with appropriate checks and balances to ensure
accountability,
responsiveness and openness."

A crucial function of any country's constitution and one of the classic
features of democracies is the division of power among the three pillars of
government. The doctrine of the separation of powers evolved under the
principle that liberty and the rights of the individuals were best preserved
and protected if governmental powers were distributed amongst the three arms of
government. Therefore, the essence of constitutionalism rests in the
limitations which the doctrine imposes on the arms of government as well as a
certain amount of diffusion of power. State power is devolved among these three
branches of government, namely the legislature, the executive and the
judiciary. The doctrine of separation of powers prevents the concentration of
power in one body. In practice, this means each arm of the state keeps watch
over the power of the others. The courts can judge the actions of the
legislature and the executive but cannot pass laws. The legislature can make
laws but cannot hand down judgments or take executive action.

At the heart of the principle of separation of powers is a desire to enhance
democracy, increase accountability and efficiency and protect the fundamental
rights against abuse. However, it has to be noted that there is no single
manner in which different countries have organised and managed the relationship
between the three arms of government, the legislature, the judiciary and the
executive. Thus, no system of separation of powers is perfect or absolute. In
fact the African National Congress (ANC)'s stance on this matter was quite
clear before the adoption of the final Constitution of South Africa. The ANC
stated that, "In regard to the question of 'check and balances' and 'Separation
of Powers,' we need on the one hand to insist on the primacy of parliament, in
the schema of government by and for the people, and on the other hand to avoid
a multiplicity of watchdog functions/bodies/and institutions and overtly
literal interpretation of the Separation of Powers doctrine."

Ladies and gentlemen, when the South African interim Constitution came into
force in 1994, it marked the beginning of a new legal order in which the
constitution became the supreme of this country. At the core of new
constitutionalism was the separation of powers doctrine. This was intended to
ensure that there were in-built 'checks and balances' to our democratic order.
When we drafted the South African Constitution, we consciously went for a model
that would allow the executive space to actively lead the country and bring
about a better life for all, but be answerable and accountable. The consequence
of this is a legislative process in which the executive often, without taking
away the constitutional right of the legislature to initiate legislation,
provides the impetus for new policy and legislation. However, the legislature
still plays a key role during the deliberative process in Parliament. Members
of the legislature actively shape and mould the content of the legislation and
in the end, promulgate the legislation.

The boundaries of the doctrine are flexible and undetermined and shaped by
each country's realities, struggles out of which the constitution, the supreme
law, was carved and aspirations for the future. Although the broad pattern of
instituting some separation is apparent in all democracies, the degree of it
differs. This was confirmed by the Constitutional Court in 1996 when certifying
the South African Constitution, the court said, "the separation of powers
doctrine is not a fixed or rigid constitutional doctrine, it is a given
expression in many different forms and made subject to checks and balances of
many kinds." The delicate balance of power between the three arms of
government, the executive, the legislature and the judiciary, is a challenge
that all democracies, old and young continue to face to this day.

The challenge presented by the delicate balance is particularly important in
South Africa, where the executive has a duty to lead the complete
transformation of our society and implement policies that will result in a
better life for all. In some quarters, unrestrained power and authority may be
seen as necessary for the executive of a developing country that is emerging
from centuries of state institutionalised oppression and poverty, to meet the
demands made on it by a populace. This is a challenge that has already resulted
in several controversies relating to government policies. It is instructive to
remember that ours is a developmental state and therefore, there is a critical
need for the three branches of government to work together towards the building
and developing this country to improve the quality of life of all people and
free the potential of each person. To realise this goal, which is set by the
constitution it is necessary for the three branches to work co-operatively
towards a common agenda which is for the national good and display oversight
and leadership to guide this national agenda.

For government to be effective in meeting the needs of the people there has
to be unity of purpose and a seamless link between its components. This is the
rationale for the entrenchment of the principle of co-operative governance in
our constitution. Ladies and gentlemen, in my view therefore, the challenge we
face is that of achieving a common understanding of the meaning of judicial
independence and the boundaries of separation of powers, particularly between
the judiciary and the other arms of government. It is a source of comfort for
us to note that we are not alone in our search for answers on where to draw the
boundaries of separation. This is a global quest.

In his landmark judgement on the subject in Van Rooyen v the State, the
former Chief Justice, the Honourable Arthur Chaskalson, confirms this. He
further indicates that different democracies have drawn the boundaries at
different places depending on their constitutional framework and
socio-political context while maintaining the universally acknowledged core
principles of judicial independence as articulated in the United Nations Basic
Principles on the Independence of the Judiciary.

Ladies and Gentlemen, I would like to turn to practical challenges of the
doctrine of separation of powers within the sphere of the administration of
justice in South Africa. Notwithstanding the need for co-operative governance,
there is a need to clearly delineate areas of responsibility between the
judiciary and the elected branches of government, especially with regard to the
policy formulation. The executive, as elected officials, has the sole
discretion to decide policies of government. This challenge is perhaps
articulated clearly by Justice VR Krishna Lyer of India who observed that,
"Legality is within the courts' province to pronounce upon, but canons of
political propriety and democratic dharma are polemic issues on which judicial
silence is the golden rule." This means that once government has decided on the
appropriate policies, the judiciary cannot, in striking down legislation or
parts thereof on the basis of illegality, raise that as an opportunity to
change the policies as determined by the Executive area of government.

It is our assertion that the on-going debate, on legislation intended to
delineate areas of responsibility in terms of the doctrine of separation of
powers, is an indication of the need to identify the specific activities over
which the branches of government have responsibility. The judiciary is
responsible for judicial functions only. Judicial functions include the
allocation of a Judge to a particular case and determining the court roll. The
executive is responsible for the administration of the courts. This also
involves expenditure of taxpayers' money and for which the Executive must
account to Parliament in terms of the Public Finance Management Act (PFMA). It
is argued by many, including the judiciary, that the provision in the
Constitution 14th Amendment Bill, providing for the minister to exercise
responsibility for the administration of and budget for all courts, constitutes
interference with the judiciary.

It is very difficult to imagine why this would be so. The judiciary is
responsible for judicial functions and not administrative functions. It
therefore, cannot be expected that Judicial Officers should pay attention on
the hiring and firing of civil servants; engaging service providers to attend
to the court facilities and to ensure that computers and recording equipments
are in good working order. After all that is not the core functions of a
judicial officer. This is not part of the job description and is not tested in
the job interview. What is tested rather is the substantive knowledge of the
law. The argument that the judiciary be responsible for the budget of the
courts is fundamentally flawed as it suggests that judicial officers, in
particular, the Chief Justice, will be required to account before parliament
for the expenditure in the courts. The policy choice to locate the
administrative function in the executive, entrenches the independence of the
judiciary.

It is critical that Judicial Officers, during the course of decision-making,
keep in mind the nature of the judicial role as it relates to the question of
separation of powers. This, in mind, means that it is critical that the
judiciary, accord respect to the legislature's interpretations of rights and
allowing the elected branches as much latitude as possible to develop and
experiment with economic and social policies. As former Chief Justice, the late
Ismael Mohamed addressing an International Commission of Jurists in 1998 noted
that, "this difficulty arises firstly because the enforcement of the relevant
right might not only involve a negative protection against its invasion but
also a positive duty to deliver the right to the aggrieved citizen to whom it
is denied and secondly because the effect of judicial orders in this kind of
area might be to compel the legislature and the executive to restructure their
priorities, their budgetary resources or the methods they might have chosen to
secure different constitutional rights."

Ladies and Gentlemen, in conclusion, the judiciary in a healthy
constitutional democracy, needs to be sensitive when addressing inherently
conflicting demands that it protect people's rights and that it respect the
policy judgements of the elected branches of government, the legislature and
the executive. As Justice Albie Sachs reflected in Prince V President of the
Cape Law Society and others, said, "in achieving this balance, this court may
frequently find itself faced with complex problems as to what properly belongs
to the discretionary sphere which the constitution allocates to the legislature
and the executive, what falls squarely to be determined by the judiciary. The
search for an appropriate accommodation in this frontier legal territory
accordingly imposes a particularly heavy responsibility on the courts to be
sensitive to considerations of institutional competence and the separation of
powers. Undue judicial adventurism can be as damaging as excessive judicial
timidity."

Ladies and gentlemen, this country's democracy and constitution are
relatively young. They have faced some important challenges and will continue
to do so in the future. The value of the Constitution will be measured by how
these challenges are met. Some of the challenges which will no doubt be
considered over time are discussed here. I wish you well for the rest of the
conference and hope you have fruitful deliberations. To the foreign visitors,
once again welcome and enjoy your stay in our country.

I thank you!

Issued by: Department of Justice and Constitutional Development
8 November 2006
Source: Department of Justice and Constitutional Development (http://www.doj.gov.za)