Chief Justice Sandile Ngcobo’s Separation of Powers Jurisprudence

Abstract

This article examines Justice Ngcobo’s profound contribution to the development of the foundational jurisprudence on separation of powers in South Africa. The article is premised on the fact that Ngcobo can be better understood in the context of his contribution to the foundational jurisprudence. In this way, we will better comprehend how Ngcobo’s jurisprudence fits into our contemporary understanding of the Constitution. The key question this article seeks to investigate is to what extent has Ngcobo’s jurisprudence on separation of powers has impacted or shaped South African constitutional law. The article specifically investigates whether, in his contribution to the constitutional jurisprudence on separation of powers, Ngcobo developed a political question doctrine theory for South Africa. I find that he did, and that while Justice Ngcobo’s political question jurisprudence was not clearly articulated or endorsed by the majority of the Justices while he was on the bench, the Constitutional Court has recently unanimously endorsed some of his political question doctrine theories and arguments thereby crystallising the political question theory in South Africa. The article examines Ngcobo’s contribution through the lens of the judgments that he penned as well as his academic commentaries