SEPARATION OF POWERS, CHECKS AND BALANCES AND JUDICIAL EXERCISE OF SELF- RESTRAINT: AN ANALYSIS OF CASE LAW

The Constitution of the Republic of South Africa, 1996 creates a system in which there is a separation of the powers exercised by the different branches of the State. It also creates a system of checks and balances. The exercise of a power by one arm of state is checked by another to ensure that there is no abuse of state power. Organs of state ought to respect each other and the powers allocated to them by the Constitution. To this end, no organ of state should encroach upon the domain of the other organs. However, the courts wield enormous power because they are the ultimate guardians and custodians of the Constitution in South Africa. Courts have the power to declare any law or conduct unconstitutional. Where decisions have been taken by other arms of the State on matters falling within their exclusive domain and such decisions violate the Constitution, courts have a duty to intervene in order to make organs of state act within constitutional bounds. However, courts should not be overzealous and should not encroach upon the powers of the other arms of the State when exercising their judicial power and authority. Against this backdrop, this article analyses how the South African courts have cautioned themselves to exercise self-restraint in order not to usurp or encroach upon the powers of the other arms of the State while exercising their judicial authority and power.

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THE “DEFERENCE” OF JUDICIAL AUTHORITY TO THE STATE*

Obiter ◽

10.17159/obiter.v33i1.12185 ◽

2021 ◽

Vol 33 (1) ◽

Author(s):

Nomthandazo Ntlama

Keyword(s):

South Africa ◽

Judicial Review ◽

Separation Of Powers ◽

The State ◽

Constitutional Court ◽

Main Function ◽

Checks And Balances ◽

New Process ◽

State Authority ◽

The Republic

The adoption of the Constitution of the Republic of South Africa, 1996 (hereinafter “the Constitution”), provided an opportune moment for the courts, especially the Constitutional Court to ensure an appropriate balance in the development of the principles and values of the doctrine of separation of powers vis-à-vis those of judicial review. The Constitution is framed in a manner that entrenches a system of checks and balances (this is deduced from the manner in which the various chapters of the Constitution are structured, dealing with the roles of the legislature, executive and the judiciary). This system gives the general public a legislative and executive authority that is accountable to them subject to judicial review by an independent judiciary. The system of checks and balances affirms the limited power of the legislative and executive authorities which is confined within the constraints of constitutional values and principles. The importance of checks and balances is similarly endorsed by Edwards as a system that has ushered in a new process of the regulation of state authority in the new dawn of democracy. This system envisages a move away from a culture of authority of the apartheid rule to one of justification of the new constitutional dispensation. He substantiates his argument by pointing out that the new process of regulating state authority has enabled the courts to educate other branches of government through principled and robust articulations of the foundational and constitutional values of the Constitution in a democratic society. Against this background, the purpose of this note is to provide a brief overview of the Merafong Demarcation Forum v President of the Republic of South Africa (2008 (10) BCLR 968, hereinafter “Merafong”) judgment. The particular emphasis on this judgment is its potential to defer the judicialauthority (which the author refer to as a “political doctrine”) to the state. The objective is to analyse this doctrine and evaluate it against the development of substantive principles of judicial review. This purpose is motivated by Chaskalson CJ’s argument in Pharmaceutical Manufacturers Association of South Africa: In re Ex Parte President of the Republic of South Africa (2000 (3) BCLR 241). Chaskalson CJ in this case held that the Constitutional Court cannot allow itself to be diverted from its main function as the final andindependent arbiter in the contest between the state and its citizens. In Merafong, the court created an impression of having misconstrued this purpose and the objectives it has to fulfil. This note is limited to the “political approach” which the court emphasisedwithout much thought, and attempt to address the question of public involvement in legislative processes raised in this case. It alsoacknowledges that the court has affirmed its independence as the guardian of the Constitution in the regulation of state authority and advancement of the principles of judicial review, but its lack of consistency in its adopted approach is a worrying factor and a causefor concern for the regulation of state authority.

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PRAWO RZYMSKIE JAKO ŹRÓDŁO PRAWA W AFRYCE POŁUDNIOWEJ

Zeszyty Prawnicze ◽

10.21697/zp.2003.3.1.05 ◽

2017 ◽

Vol 3 (1) ◽

pp. 139

Author(s):

Rafał Mańko

Keyword(s):

South African ◽

Legal System ◽

Case Law ◽

The Other ◽

Customary Law ◽

Roman Law ◽

The South ◽

Cape Of Good Hope ◽

Ius Commune ◽

The Republic

ROMAN LAW AS A SOURCE OF LAW IN SOUTHERN AFRICASummary Roman law is usually regarded as an object o f historic study and not as a practical discipline of the legal science. However, the situation is different in six South African states - the Republic of South Africa, Zimbabwe, Lesotho, Swaziland, Botswana and Namibia - which have preserved the uncodified ius commune europaeum brought by the Dutch to the Cape of Good Hope in the 17th century.The hierarchy of the fontes iuris oriundi in the South African legal system seems to be the following: the Constitution, statutes, customary law, case-law, Roman-Dutch law and Roman law. The position occupied by Roman law is in fact only subsidiary, however it is a source of law and is referred to from time to time in the case-law. On the other hand it permeates the whole legal system which is based on fundamental notions derived from Roman law, which have been preserved and developed in the treatises of the Roman-Dutch jurists and the case-law of the courts.The frequency o f citations of Roman law in the South African case-law has been an object of two major studies. One, conducted by Van Der Merve concerned the period 1970-1979, the other, by Du Plessis - took into account the cases of 1990-1991. The studies revealed that Roman sources are cited in 4,7-4,8% of the case-law. According to another study by Zimmermann, only in half o f those cases the Roman sources were relevant for deciding the case.Nevertheless, it is submitted that these figures should be treated as significant, especially when compared with the position occupied by Roman sources in the modern case law in other civilian jurisdictions.

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Modderklip Revisited: Can Courts Compel the State to Expropriate Property where the Eviction of Unlawful Occupiers is not Just and Equitable?

Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad ◽

10.17159/1727-3781/2018/v21i0a3477 ◽

2018 ◽

Vol 21 ◽

pp. 1-21

Author(s):

Jackie Dugard

Keyword(s):

South Africa ◽

Separation Of Powers ◽

The State ◽

Court Case ◽

Constitutional Court ◽

Constitutional Rights ◽

Western Cape ◽

The Supreme Court ◽

Constitutional Right ◽

The Republic

This article examines whether, to give effect to the section 26 constitutional right to adequate housing, courts can (or should) compel the state to expropriate property in instances when it is not just and equitable to evict unlawful occupiers from privately-owned land (unfeasible eviction). This question was first raised in the Modderklip case, where both the Supreme Court of Appeal (Modder East Squatters v Modderklip Boerdery (Pty) Ltd; President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd 2004 3 All SA 169 (SCA)) and Constitutional Court (President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd 2005 5 SA 3 (CC)). dodged the question, opting instead to award constitutional damages to the property owner for the long-term occupation of its property by unlawful occupiers. It is clear from cases such as Ekurhuleni Municipality v Dada 2009 4 SA 463 (SCA), that, mindful of separation of powers concerns, courts have until very recently been unwilling to order the state to expropriate property in such circumstances. At the same time, it is increasingly evident that the state has failed to fulfil its constitutional obligations to provide alternative accommodation for poor communities. In this context, this article argues that there is a growing need for the judiciary to consider, as part of its role to craft effective remedies for constitutional rights violations, the issue of judicial expropriation. It does so, first, through an analysis of the relevant jurisprudence on evictions sought by private landowners and, second, through an in-depth engagement of the recent Western Cape High Court case, Fischer v Persons Listed on Annexure X to the Notice of Motion and those Persons whose Identity are Unknown to the Applicant and who are Unlawfully Occupying or Attempting to Occupy Erf 150 (Remaining Extent) Phillipi, Cape Division, Province of the Western Cape; Stock v Persons Unlawfully Occupying Erven 145, 152, 156, 418, 3107, Phillipi & Portion 0 Farm 597, Cape Rd; Copper Moon Trading 203 (Pty) Ltd v Persons whose Identities are to the Applicant Unknown and who are Unlawfully Occupying Remainder Erf 149, Phillipi, Cape Town 2018 2 SA 228 (WCC).

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Bibliographical Progress in South Africa 1967-1968

African Studies Review ◽

10.1017/s0002020600037598 ◽

1969 ◽

Vol 12 (03) ◽

pp. 305-314

Author(s):

Reuben Musiker

Keyword(s):

South Africa ◽

South African ◽

The State ◽

The South ◽

Recent Developments ◽

The Republic ◽

Interim Period

This is a two-year survey of bibliographical work completed in the Republic of South Africa. Recent developments in current and retrospective national bibliography are outlined. The South African National Bibliography has been mechanised and good progress has been made with the retrospective volume for 1926-1958. Attention is drawn to the State Library's work on the documentation of banned books. Catalogues of important collections completed are briefly described, and recent developments in the field of periodical lists and indexes are outlined. Special attention is paid in the review to Africana indexes and bibliographies. The author concludes that despite lacunae which remain to be filled, the bibliographical scene in South Africa is satisfactory and full of promise. This review, like its forerunner covers a two-year period and is based on information derived from a questionnaire sent to the major libraries of South Africa. The interim period has also been covered to some extent by a number of informal bibliographical progress reports published in the South African Library Association Newsletter.

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The Photographic Presentation of South Africa, 1874 and 1923

Itinerario ◽

10.1017/s0165115300015023 ◽

2001 ◽

Vol 25 (3-4) ◽

pp. 143-153

Author(s):

Robert Ross

Keyword(s):

South Africa ◽

The State ◽

The Other ◽

South Africans ◽

Other Hand ◽

Single Person ◽

The Creation ◽

The Republic ◽

The One ◽

White Minority

What is, and was, South Africa? This is clearly not a question which has a single answer, nor has it ever had one. On the one hand, there is a constitutional answer. In these terms, South Africa did not exist before the creation of the Union in 1910 and since then has been the state created then, transformed into the Republic of South Africa in 1961 and transformed once again with the ending of white minority rule in 1994. On the other hand, there are innumerable answers, effectively those to be found in the minds of all South Africans, and indeed all those foreigners who have an opinion about the country. Nevertheless, these opinions are not random. Clearly, there are regularities to be found within them, such that it is possible, in principle, to describe at the very least the range of answers to this question which were held within particular groups of the population, either within the country or outside it, and also to use specific sources, emanating from a single person, or group of individuals, as exemplary of the visions held by a far wider group.

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Quantification of damages for unlawful arrest and detention: South Africa, Namibia and Eswatini/Swaziland (2)

South African Journal of Criminal Justice ◽

10.47348/sacj/v33/i3a6 ◽

2020 ◽

Vol 33 (3) ◽

pp. 617-645

Author(s):

Chuks Okpaluba

Keyword(s):

South Africa ◽

South African ◽

Case Law ◽

The Other ◽

Constitutional Court ◽

Constitutional Development ◽

Personal Liberty ◽

The Supreme Court ◽

Present Part ◽

Court Of Appeal

The discussion of the South African case law on the quantification of damages arising from wrongful arrest and detention which commenced in part (1) of this series, continues in the present part. In part (1), the Constitutional Court judgment in Zealand v Minister of Justice and Constitutional Development 2008 (4) SA 458 (CC) which emphasised the respect and reverence for the constitutional guarantee of personal liberty, and De Klerk v Minister of Police 2018 (2) SACR 28 (SCA) as well as the recent Constitutional Court judgment in the same case – De Klerk v Minister of Police 2020 (1) SACR 1 (CC); [2019] ZACC 32 (22 August 2019) – were among a host of important cases discussed. The Supreme Court of Appeal cases on quantification of damages for wrongful arrest and detention also discussed include: Mashilo v Prinsloo 2013 (2) SACR 648 (SCA); Minister of Police v Zweni (842/2017) [2018] ZASCA 97 (1 June 2018); Minister of Safety and Security v Magagula (991/2016) [2017] ZASCA 103 (6 September 2017). The first section of this part continues with the discussion of the other instances not involving failure to take the detainee to court within 48 hours or consequences of the accused person’s first appearance in court whereby Hendricks v Minister of Safety and Security (CA&R/2015) [2015] ZAECGHC 61 (4 June 2015); Mrasi v Minister of Safety and Security 2015 (2) SACR 28 (ECG); and Ramphal v Minister of Safety and Security 2009 (1) SACR 211 (E) are among the cases discussed. The second limb of the discussion in this part concerns the issue of wrongful arrest and detention under the Domestic Violence Act 116 of 1998 where the law has developed side by side with the traditional law of wrongful arrest and police negligence as illustrated by the case of Naidoo v Minister of Police 2016 (1) SACR 468 (SCA).

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The Structure of the South African Labor Market, 1970–83

The Review of Black Political Economy ◽

10.1007/bf02903730 ◽

1987 ◽

Vol 15 (4) ◽

pp. 63-78

Author(s):

Rudolph Daniels

Keyword(s):

South Africa ◽

Labor Market ◽

Predominantly White ◽

South African ◽

Land Ownership ◽

The Other ◽

Black Labor ◽

Income Distributions ◽

Political Upheaval ◽

The Republic

The structure of the labor market in the Republic of South Africa over 1970–83 is strongly linked to the Natives Land Act of 1913, No. 27, which dispossessed blacks of their legal right to land ownership. One of the intended results of this act was to increase the supply of cheap black labor to South Africa's predominantly white-owned industry. Thus, over the 1970–83 period, as before, blacks occupied the lowest ends of the educational, occupational, employment, and income distributions among all races in South Africa. On the other hand, the white minority lived at a standard equal to that of Americans and Scandanavians. However, even within these constraints, the demographics of South Africa are such that over the next decade or more, and even in the absence of major political upheaval, blacks may comprise an increasing percentage of the workforce and occupy positions which have been mainly occupied by whites to date.

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Gagasan Penyempurnaan Lembaga Majelis Permusyawaratan Rakyat Republik Indonesia dalam Sistem Parlemen Dua Kamar

PLENO JURE ◽

10.37541/plenojure.v9i1.305 ◽

2020 ◽

Vol 9 (1) ◽

pp. 1-15

Author(s):

Rizki Ramadani

Keyword(s):

Separation Of Powers ◽

State Power ◽

State Institution ◽

Fifth Amendment ◽

Checks And Balances ◽

Parliamentary System ◽

The People ◽

The Republic ◽

To Come

Berdasarkan Pasal 1 ayat (2) UUD 1945 Sebelum Perubahan dan Penjelasannya, kekuasaan Negara yang tertinggi ada di tangan MPR. Sejak itu telah ada pengakuan bahwa MPR merupakan Lembaga Tertinggi Negara, bahkan sebagai penjelmaan seluruh rakyat Indonesia. Pasca Amandemen, UUD NRI Tahun 1945 resmi menganut pemisahan kekuasaan dengan ‘checks and balances’ yang lebih fungsional. Implikasinya, MPR kehilangan sebagian fungsi dan wewenangnya, dan tidak lagi berkedudukan sebagai lembaga tertinggi negara. Kini, bersamaan dengan munculnya wacana amandemen kelima, timbul pula pembicaraan untuk mereformulasi peran dan kelembagaan MPR. Artikel ini berupaya merespon wacana secara obyektif dengan berupaya memunculkan gagasan penyempurnaan MPR dengan pendekatan konsep parlemen dua kamar. Gagasan tersebut adalah melalui penegasan posisi kelembagaan MPR dalam sistem parlemen dua kamar dan perimbangan kekuasaan antar kamar. Abstract. Based on Article 1 paragraph (2) of the 1945 Constitution Before the Amendment and its Elucidation, the highest state power is in the hands of the MPR. Since then there has been recognition that the MPR is the Supreme State Institution, even as the manifestation of all the people of Indonesia. After the Amendment, the 1945 Constitution of the Republic of Indonesia officially adopted a more functional separation of powers with more functional checks and balances, making the MPR lost the vital parts of its functions and authority, and no longer has the position of the highest state institution. Now, along with the emergence of the discourse of the fifth amendment, discussions also emerged to reform the role and institutions of the MPR. This article attempts to respond to the discourse objectively by trying to come up with the idea of perfecting the MPR with the concept of a two-chamber parliamentary approach. The ideas were, through the affirmation of the institutional position of the MPR in the two-chamber parliamentary system and the balance of powers between chambers.

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SEPARATION OF POWERS AND THE INDEPENDENCE OF CONSTITUTIONAL COURTS

Journal of Foreign Legislation and Comparative Law ◽

10.12737/17101 ◽

2016 ◽

Vol 1 (6) ◽

pp. 0-0

Author(s):

Кристоф Грабенвартер ◽

Kristof Grabenvarter

Keyword(s):

Power System ◽

Separation Of Powers ◽

State Power ◽

Division Of Labour ◽

The State ◽

Point Of View ◽

The Other ◽

Constitutional Courts ◽

Constitutional Justice ◽

Further Development

The presented article is devoted to one of the essentially and vitally important problems of an each country state power system maintaining, which is obviously influencing the sovereignity strengthening and making the legal constitutional basis of a state more durable and stable. The author considers the various aspects of the proportionality, which is to be provided in the state powers separation principle realization, dividing them into three traditional branches on one hand, and at the same time in the promoting constitutional courts real independence in every state on the other hand. The author tries to observe the appearance and further development of two methods which might be effected in reaching these goals. From his point of view the first method should be focused on further perfecting the division of labour in the state power system, which is to promote the actual independence of constitutional courts as the integral component of one of the state power system branches and which is provided with the separation of powers principle. The other method is to make the judicial constitutional justice administration more effective and qualified, which will help to implement the proper preconditions for firm incorporation the separation of powers principle into the every days life of society and state. The author also underlines and pays everyone’s attention to the mutual interdependency and intercommunication which are existing between the above mentioned state aims of priority and the results of fulfilling them. As for the author’s own scientific and practical elaborations of the facilities and instruments which might be used in the field of the legal statehood foundations strengthening is concerned, he suggests arranging the international cooperation of the constitutional courts of the states and setting up professional links between them, starting up the state system of “constitutional culture” educational courses for the population and implementing the unified international unanimous ethical standards for estimating the features of the persons intending to become constitutional judges.

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KEDUDUKAN KEJAKSAAN SEBAGAI PELAKSANA KEKUASAAN NEGARA DI BIDANG PENUNTUTAN DALAM STRUKTUR KETATANEGARAAN INDONESIA

Jurnal Ius Constituendum ◽

10.26623/jic.v3i1.862 ◽

2018 ◽

Vol 3 (1) ◽

pp. 27

Author(s):

DIAN ROSITA

Keyword(s):

State Power ◽

Secondary Data ◽

The State ◽

Judicial Power ◽

The Public ◽

Executive Authority ◽

State Administration ◽

Judicial Authority ◽

The Republic ◽

Government Institution

ABSTRAK Selama ini pengaturan kedudukan Kejaksaan tidak diatur secara tegas dalam Undang-Undang Dasar Negara Republik Indonesia Tahun 1945 hanya disebut secara eksplisit dalam Pasal 24 ayat (3) UUD NRI Tahun 1945 yang menyatakan, “Badan-badan lain yang fungsinya berkaitan dengan kekuasaan kehakiman diatur dalan undang-undang.” Pasal 2 ayat (1) Undang –Undang Kejaksaan No. 16 Tahun 2004 tentang Kejaksaan menyebutkan bahwa Kejaksaan adalan lembaga pemerintah yang melaksanakan kekuasaan Negara dibidang penuntutan serta kewenangan lain yang berdasarkan undang-undang. Sehingga secara kelembagaan berada di bawah kekuasaan eksekutif namun dalam menjalankan tugas dan fungsinya merupakan bagian dari kekuasaan yudikatif yang menjadikan ketidakjelasan kedudukan Kejaksaan dalam struktur ketatanegaraan Indonesia. Penelitian ini menggunakan metode yuridis normatif dengan spesifikasi penelitian yang bersifat preskriptis analitis. Jenis data yang digunakan dalam penelitian ini adalah data sekunder, yaitu data yang diperoleh melalui bahan hukum primer, sekunder dan tersier. Simpulan yang diperoleh dari hasil penelitian ini adalah kedudukan Kejaksaan yang secara kelembagaan berada di bawah kekuasaan eksekutif dan secara kewenangan dalam melaksanakan tugas dan fungsinya termasuk bagian dari kekuasaan yudikatif menyebabkan Kejaksaan rawan terhadap intervensi kekuasaan lainnya dalam melaksanakan tugas dan fungsinya sebagai pelaksana kekuasaan negara di bidang penuntutan. Serta untuk mewujudkan kekuasaan penuntutan yang independen maka perlu untuk melakukan reposisi kedudukan Kejaksaan Republik IndonesiaABSTRACT So far, the regulation of the Public Prosecutor's Office is not expressly stipulated in the 1945 Constitution of the State of the Republic of Indonesia. It is only mentioned explicitly in Article 24 Paragraph (3) of the 1945 Constitution of the Republic of Indonesia which states, "Other bodies whose functions relate to the judicial authority are regulated in legislation" Article 2 paragraph (1) of the Prosecutor's Law No. 16 of 2004 on the Prosecutor's Office. It states that the Attorney is a government institution that exercises state power in the field of prosecution and other authorities based on the law. So that institutionally, it is under the executive authority but in carrying out its duties and functions it is part of the judicial power that makes the ambiguity of the position of the Prosecutor in the structure of the state administration. This research used normative juridical method with analytic prescriptive research specification. The type of data used in this study is secondary data, data were secondary data which gained from primary, secondary and tertiary legal materials. The conclusion derived from the results of this study is the position of the Attorney which is institutionally under the authority of the executive. Further, its authority in carrying out its duties and functions includes part of the judicial power, it causes the Attorney is prone to other power intervention in carrying out its duties and functions as the executor of state power in the field of prosecution. To realize the power of independent prosecution, it is necessary to reposition the position of the Prosecutor of the Republic of Indonesia.

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