The mysteriously appearing and disappearing doctrine of separation of powers: toward a distinctly South Africa doctrine for a more radically transformative Constitution

Abstract

The doctrine of the separation of powers remains an enigma in South African law. Despite promising that ‘a distinctively South Africa model of separation of powers’ will be developed over time, the Constitutional Court has made little effort to do so explicitly. This article argues that all separation of powers doctrines are a practical matter of constitutional design underpinned by political theory and a theory of state. Given the track record of liberalism as racist, sexist and tolerant of poverty and inequality, and because the South African Constitution itself embodies a radically different doctrine of separation of powers, simply recanting the journey of the doctrine through the minds of Montesquieu, Locke and Madison is of little value. This article suggests that the basic foundations of a distinctively South African doctrine can be developed through an analysis of the Constitution, a determination of the purposes of the doctrine and a reinterpretation of Constitutional Court judgments. Five basic foundations of this distinctively South African doctrine emerge: chapter 9 Institutions as a fourth branch of government; the evolving and dynamic relationship between different branches of government; constitutional dialogue and participatory democracy; the absence of a political question doctrine; and the separation of powers harm principle. The development of a clearer doctrine of separation of powers will reduce reasonable speculation and public perception that the doctrine is merely appealed to at a court’s convenience. It will also encourage constitutional dialogue between branches and spheres of government, constitutional institutions and civil society about the nature of South African constitutional democracy.