Authored By: Ompha Ndou
Introduction
The doctrine of separation of powers is globally recognized as the foundational pillar of constitutional democracy, designed principally to limit state authority and safeguard political liberty by dividing governmental functions among distinct branches: the Legislature, the Executive, and the Judiciary.1 The Constitution of the Republic of South Africa, 1996 (the Constitution), establishes this doctrine through a system of distributed powers coupled with mandatory checks and balances, intended to prevent the abuse of state power.2
The current constitutional structure represents a fundamental break from South Africa’s pre-1994 past, which operated under a doctrine of parliamentary sovereignty. Historically, instruments like the Union of South Africa Act, 1909, and subsequent apartheid-era constitutions (1961 and 1983) placed the administration of justice and the management of courts under the direct control of the Minister of Justice, effectively subordinating the courts to the Executive.3 The Constitution fundamentally remedied this historical subservience by enshrining constitutional supremacy and explicitly vesting judicial authority exclusively in the courts.4
This explicit guarantee of independence, including the mandatory obligation on all organs of state to actively assist and protect the courts, constitutes a deliberate constitutional measure to ensure the Judiciary is equipped to eradicate the possibility of executive control.5 Furthermore, the separation of powers is foundational to the democratic state values, including the advancement of human rights and freedoms.6 When the separation mechanisms fail, as evidenced during periods of systematic corruption and State Capture, the integrity of the constitutional state and the rule of law itself are compromised.7
This article argues that while the formal constitutional architecture of separation of powers in South Africa is robust, its functional efficacy is constantly undermined by political realities, notably the enduring challenges posed by the structural fusion of the Executive and Legislature under a dominant party system. Consequently, the Judiciary has been forced to assume an increasingly prominent, yet often controversial, role as the primary institutional guarantor of constitutional accountability. The analysis proceeds by contrasting the formal doctrine with the functional deficit, examining the structural weaknesses exposed by state capture, and detailing key jurisprudence where the Judiciary intervened to enforce constitutional boundaries.
The Foundational Doctrine: Separation, Fusion, and Checks on Paper
The South African model employs a system that necessitates both institutional integrity and functional distinction between the arms of government.8 However, unlike strict separation models, the Westminster tradition inherited by South Africa inherently involves a degree of functional overlap and, critically, a structural fusion between the Executive and the Legislature.
The Constitution explicitly vests governmental authority across three distinct branches:
- The Legislature
Parliament, consisting of the National Assembly (NA) and the National Council of Provinces (NCOP) (s 42), is the legislative authority of the Republic and has the power to make laws for the country.9 Crucially, the Legislature is also mandated to represent the people and to ensure
democratic governance, primarily by monitoring the Executive.10 This oversight function is an essential constitutional check, vital for maintaining balance.
- The Executive
The executive authority of the Republic is vested in the President (s 85(1)).11 The President exercises this authority, along with the Cabinet, by implementing national legislation, developing and implementing national policy, and initiating legislation.12 This arm is structurally fused with the Legislature because the President is chosen from and the Cabinet is largely drawn from the majority party in Parliament.13
- The Judiciary
The Constitution vests the judicial authority exclusively in the courts (s 165(1)).14 Section 165(2) mandates that the courts are independent and subject only to the Constitution and the law, which they must apply without fear, favor, or prejudice.15 Furthermore, no person or organ of state may interfere with the functioning of the courts (s 165(3)), and the state must actively assist and protect them (s 165(4)).16 The Chief Justice serves as the head of the Judiciary, overseeing norms and standards for judicial functions (s 165(6)).17
The separation doctrine is effective only insofar as the system of checks and balances successfully prevents every single branch from usurping the powers of another. 18 The primary mechanism employed by the Judiciary is judicial review, which grants the courts enormous power to declare any law or conduct of the other branches unconstitutional.19 This power positions the courts as the ultimate guardians and custodians of the Constitution. Conversely, Parliament checks the Executive through its legislative and oversight duties.20 A critical tension exists, however, in the exercise of judicial power. While the Judiciary has a duty to intervene where constitutional violations occur, courts are simultaneously enjoined to exercise self-restraint.21 This practice of self-restraint is intended to prevent the Judiciary from becoming “overzealous” and improperly encroaching upon the policy and functional domains reserved exclusively for the legislative and executive arms. 22 This creates an inherent institutional dilemma: the courts must intervene decisively to correct constitutional breaches under the doctrine of constitutional supremacy, but must carefully avoid the perception or reality of usurping political policy-making functions to preserve the democratic legitimacy of the political branches.23 The separation of powers, therefore, operates as a dynamic, contested principle, constantly being refined by jurisprudence.
The Functional Deficit: Challenges to Separation in Practice While the foundational doctrine provides a clear blueprint, the constitutional framework in South Africa faces significant implementation difficulties, resulting in a substantial divergence between the robust theory and the fragile reality. The most profound structural obstacle to effective separation is the political and institutional dominance of the Executive, rooted in the political structure of the dominant majority party system.24
The Executive is drawn from Members of Parliament (MPs) who belong to the majority party. Due to the closed party-list proportional representation electoral system, MPs’ allegiance is often primarily owed to the party leadership, which determines their political survival, rather than to their constitutional duty to the institution of Parliament.25 This structure results in intense party discipline, rendering MPs reluctant to scrutinize or hold their own party’s executive leaders accountable.
Consequently, the core constitutional check intended to operate between the Legislature and the Executive—Parliamentary oversight—is critically weakened.26 The failure of the Legislature to act as a vigorous, proactive check against abuse transforms the system from one of balanced accountability to one reliant on retrospective judicial intervention. This systemic collapse of the Legislative check is a functional deficit that compels the Judiciary to shoulder the immense responsibility of constitutional accountability, leading to the phenomenon often described as the judicialization of politics.27
A further, more insidious challenge to institutional independence lies in the control over financial resources. Although the Legislature has passed the Financial Management of Parliament and Provincial Legislatures Act 10 of 2009, aimed at regulating the financial management of Parliament consistent with its constitutional status,28 the functional reality remains compromised. Research indicates that while the Legislature retains the formal power to authorize the government’s income and expenditure budget, the Executive, acting through the Minister of Finance, maintains the power to determine the budget allocation for all state institutions, including the Legislature itself.29 This reliance means that the Legislature is financially tethered to, and effectively under the control of, the Executive. This centralization of financial power is diagnosed by scholars as contributing significantly to a “weak separation of powers” in South Africa.30 The implication is that legal solutions (such as passing the FMPPLA) are inadequate if the underlying budgetary mechanisms of state financial management remain centralized within the Executive, allowing for indirect institutional pressure and control.
The institutional integrity required by the separation of powers depends on mutual respect between the state organs. This necessary respect has been challenged by political leaders who question the Judiciary’s authority. Statements, such as those made by former President Jacob Zuma, asserting that the Judiciary is not more powerful than the “will of the majority,” are significant because they actively work to degrade the status of the constitutional state and the rule of law.¹⁸ Such public challenges risk damaging public confidence and exacerbating the perceived conflict inherent in the separation doctrine, complicating the Judiciary’s difficult role as the ultimate arbiter of constitutional conflicts.
Judicial Intercession: Defining and Enforcing Constitutional Boundaries
The functional weakness in the political branches has necessitated frequent and robust judicial intervention, where the courts have enforced the constitutional line against both the Legislature and the Executive.
The Judiciary established early in the post-apartheid era that Parliament, despite its legislative mandate, is an organ of state and is unequivocally subject to the Constitution. In Speaker of the National Assembly v De Lille and Another, the Supreme Court of Appeal (SCA) adjudicated Parliament’s attempt to punish a Member of Parliament (MP) by excluding her from deliberations for 15 days, despite her withdrawal of controversial remarks.31 The SCA affirmed that the National Assembly is subject to the supremacy of the Constitution in all respects, holding that Parliament may not confer upon itself or its constituent parts any powers not explicitly or implicitly granted by the Constitution.32 The court found the suspension unlawful because it exceeded the authority granted to the Assembly under the Constitution, demonstrating that legislative privilege must yield to constitutional limits.33
The Constitutional Court’s judgment in Economic Freedom Fighters v Speaker of the National Assembly and Others (2016) represents the most definitive articulation of the separation of powers regarding accountability, arising from the failure of both the Executive and the Legislature to respect the Public Protector’s (PP) remedial action concerning non-security upgrades at the Nkandla residence.34
The court found that the President had violated the Constitution by failing to comply with the remedial action ordered by the Public Protector. 35 Crucially, the judgment also found that Parliament had failed in its constitutional duty to scrutinize and hold the President accountable for the non-compliance. 36 The judgment clarified the interlocking duties of the three branches, unequivocally stating that the remedial actions of the Public Protector, as a Chapter 9 institution supporting democracy, are binding and must be respected by both the Executive and Parliament.37
This intervention achieved a fundamental restructuring of the power dynamics: when the primary political check (Parliamentary oversight) is politically neutralized by the dominant party system, the Judiciary steps in to empower an independent constitutional check (the Public Protector).38 The court thus adapted the separation doctrine to address the functional reality, ensuring that constitutional accountability remains effective despite the failure of the political arms to meet their duties.
Upholding Judicial Independence: Structural Safeguards and Self Restraint
The functional ability of the Judiciary to act as the ultimate guarantor of the Constitution relies entirely on its entrenched independence. 39 The courts have proactively defined and enforced structural protections to ensure this independence against potential executive encroachment.
Judicial independence is not merely a statement of principle but a set of structural guarantees that must apply to all courts. This was recently confirmed by the Constitutional Court in O’Brien N.O. v Minister of Defence and Military Veterans and Others (2024), which addressed the constitutional status of military courts and judges.40
The Constitutional Court affirmed that the principles of judicial independence must apply fully to military courts and judges.41 The court specifically ruled that the statutory provisions governing the removal of military judges were constitutionally invalid because they failed to provide adequate structural guarantees for independence. The judgment stipulated that a military judge may not be removed except upon the recommendation of an independent inquiry.42 By demanding specific structural design requirements, the Judiciary reinforced the separation barrier, ensuring that the Executive (specifically the Minister of Defence) cannot unduly interfere with judicial tenure, thereby preventing the kind of historical executive control that defined the pre-1994 judicial system. The court suspended the declarations of invalidity for 24 months, obliging the Legislature to enact corrective legislation to cure the structural defect.43
While the courts retain the immense power of judicial review, they are continually reminded of the need for self-restraint to ensure they do not trespass into the exclusive domains of the political branches.44 This restraint ensures the legitimacy of their interventions. However, from a critical legal perspective, the Judiciary and the political branches are seen as inseparable in their pursuit of the same constitutional and political objectives.45 When the political environment fails to deliver on the Constitution’s transformative objectives—such as accountability and the rule of law— judicial activism, even if perceived as interventionist, is often the necessary enforcement of the democratic mandate itself.46 Thus, the line between required judicial review and prohibited judicial overreach is a matter of profound constitutional interpretation, essential for steering the state toward constitutional compliance without seizing political authority.
The State Capture Era: The Ultimate Failure of Separation The findings of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector (Zondo Commission) provide extensive evidence that the doctrine of separation of powers, particularly the system of checks and balances, failed catastrophically during the relevant period.
The Zondo Commission confirmed the deep-seated structural vulnerabilities caused by political fusion and party dominance. The Commission found that Parliament had “largely failed to exercise its oversight and accountability mandate” during the years of state capture. 47 Organizations monitoring parliamentary activity submitted evidence that Parliament was “ineffective, indecorous and symbolic”.48 This failure was attributed not to a lack of power, but to the choices of Members of Parliament who either chose—or were instructed—not to take serious action on allegations against high-ranking Executive members. 49 This systemic collapse of the Legislative check demonstrates a form of institutional constitutional betrayal. The failure of the Legislature to serve as an effective preventative mechanism meant that the power concentration necessary for State Capture to flourish went unchecked, ultimately necessitating judicial recourse to address the resulting constitutional crisis.50
The Zondo Commission recognized that restoring the separation of powers required not just goodwill but structural and legislative reinforcement to prevent future constitutional failure. Key recommendations focused on compelling political accountability:
- Legislating Executive Accountability: The Commission recommended that Parliament consider legislating to enforce regular, timeous, and proper reporting by representatives of the Executive, and to regulate non-attendance of Ministers at scheduled oversight meetings without adequate cause.51 This highlights that reliance on political custom is insufficient; the Legislature must be legally compelled to perform its duty when political motivation (party loyalty) fails.
- Improving Appointment Scrutiny: To curb the President’s perceived “boundless powers to appoint and dismiss state functionaries” (s 84(2)(f) and s 193(4)), 52 the Commission recommended improving Parliament’s role in key appointment processes. This aims to address the exploitation of the “seams” of the separation doctrine, where executive control over strategic organs of state was used to facilitate corruption.53
Conclusion:
The Imperiled Balance and Prospects for Reform The doctrine of separation of powers in South Africa is defined by a deep tension between a constitutionally supreme, highly independent Judiciary and politically dominant Executive Legislative institutions structurally weakened by fusion and financial centralization. The Judiciary has consistently acted to enforce the constitutional boundaries, demonstrating its willingness to correct constitutional breaches by both the Executive and the Legislature through robust judicial review (as seen in De Lille and Nkandla) and by enforcing structural guarantees for its own independence (O’Brien N.O.).
The Constitutional Court has thus become the indispensable, yet frequently burdened, guarantor of the constitutional state. However, relying primarily on judicial intervention to police institutional boundaries is unsustainable for a healthy democracy. The evidence from the State Capture era confirms that the breakdown of accountability was rooted in the functional collapse of the Legislature, which failed its duty due to political loyalty overriding constitutional obligation.
For the constitutional balance to be restored, fundamental reforms must be implemented by the political branches:
- Fiscal Autonomy: Constitutional integrity demands that the Legislature and Judiciary achieve genuine financial independence from the Executive. The mechanisms governing budget determination must be reformed to ensure that institutional operational capacity is not subject to executive discretion.
- Legislative Self-Correction: Parliament must implement the Zondo Commission’s recommendations, including legislating executive reporting and attendance compliance. These steps are necessary to legally compel the performance of oversight duties that political motivation has proven insufficient to guarantee.
Ultimately, the effectiveness of the separation of powers is contingent on the political will of all organs of state to respect their respective constitutional domains and to exercise their powers of accountability rigorously. Until the political checks are functionally revitalized, the constitutional equilibrium will remain dependent upon, and constantly challenged by, the weighty pronouncements of the Judiciary.
Bibliography
Cases
Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others ZACC 11
O’Brien N.O. v Minister of Defence and Military Veterans and Others ZACC 30
Speaker of the National Assembly v De Lille and Another 1999 (4) SA 863 (SCA)
Legislation
Constitution of the Republic of South Africa, 1996
Financial Management of Parliament and Provincial Legislatures Act 10 of 2009
Books, Reports, and Journal Articles
Corder H M, ‘Constitutional Law’ (1998) Annual Survey of South African Law 120
Fawole A B M, ‘The Efficacy of the Separation of Powers and Judicial Independence in South Africa’ (2023) 4(1) African Journal of Interdisciplinary Multidisciplinary Studies 18
Fawole D O, ‘Challenges to the separation of powers doctrine in South Africa: The place of party discipline’ (2018) PS: Political Science and Politics 1
Groenewald H, ‘As the Zondo Commission Reports Show, It May Be Time To Curb the President’s Powers (2022) The Brenthurst Foundation hhtps://www.thebrenthurstfoundation.org/news/as-the-zondo-commission-reports-show it-may-be-time-to-curb-the-presidents-powers/ (accessed 29 November 2025)
International Commission of Jurists (ICJ), Constitutional Court of South Africa Affirms Judicial Independence of Military Courts and Judges (18 August 2025) https://opiniojuris.org/2025/08/18/constitutional-court-of-south-africa-affirms-judicial independence-of-military-courts-and-judges/ (accessed 28 November 2025)
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Kanyane O, ‘Judicial self-restraint as a doctrine for promoting separation of powers in South Africa’ (2018) Obiter 548
Ndivhuwo K N, ‘Judicial Independence and the Transformative Mandate of the South African Judiciary: A Critical Legal Theory Perspective’ (2025) 14(1) Journal of Judicial Administration
Odendaal G O and Ngulube T C, ‘Executive dominance over the legislative sector in South Africa: Implications for good governance and public accountability’ (2025) 30 Journal of Public Administration, Development, and Accountability 416
Parliament ignored state capture and failed South Africans (OUTA Report, 2021) https://www.outa.co.za/web/content/151524 (accessed 27 November 2025)
SECTION27, Constitutional Court Ruling Affirms the Powers and Duties of All Chapter 9 Institutions (1 April 2016) https://section27.org.za/2016/04/landmark-con-court-nkandla ruling/ (accessed 29 November 2025)
The Judiciary, What is the separation of powers (Constitutional Court of South Africa) https://www.concourt.org.za/index.php/46-what-is-a-constitution/what-is-the-separation of-power s/109-what-is-the-separation-of-powers (accessed 28 November 2025)
Venter J, ‘Is the judiciary in South Africa more powerful than the will of the majority?’ (2014) 26(1) Journal for Contemporary History 120
1 The Constitution of the Republic of South Africa, 1996; The Judiciary, What is the separation of powers (Constitutional Court of South Africa)
https://www.concourt.org.za/index.php/46-what-is-a-constitution/what-is-the-separation-of-power s/109-what-is-the-separation-of-powers (accessed 28 November 2025)
2 The Constitution of the Republic of South Africa, 1996; The Judiciary, What is the separation of powers (n 1); O Kanyane, ‘Judicial self-restraint as a doctrine for promoting separation of powers in South Africa’ (2018) Obiter 548, 550.
3 The Judiciary, What is the separation of powers (n 1); O Kanyane (n 2) 550; Constitution of the Republic of South Africa, 1996, s 165(2)–(4).
4 Constitution of the Republic of South Africa, 1996, s 165.
5 Ibid.
6 The Constitution of the Republic of South Africa, 1996; A B M Fawole, ‘The Efficacy of the Separation of Powers and Judicial Independence in South Africa’ (2023) 4(1) African Journal of Interdisciplinary Multidisciplinary Studies 18.
7 Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector, including Organs of State, Report on State Capture (2022).
8 A B M Fawole (n 6).
9 Constitution of the Republic of South Africa, 1996, s 42.
10 Ibid [s 42] [s 85].
11 Ibid [s 85].
12 Ibid.
13 D O Fawole, ‘Challenges to the separation of powers doctrine in South Africa: The place of party discipline’ (2018) PS: Political Science and Politics 1, 1-2.
14 Constitution of the Republic of South Africa, 1996, s 165(1).
15 Ibid [s 165(2)]
16 The Constitution (n 4).
17 Ibid
18 The Judiciary, What is the separation of powers (n 1); O Kanyane (n 2) 550;
19 D O Fawole (n 13).
20 Constitution of the Republic of South Africa, 1996, s 165(1).
21 D O Fawole (n 13).
22 Ibid.
23 Constitution (n 20).
24 D O Fawole (n 13).
25 Ibid.
26 A B M Fawole (n 6) 24; D O Fawole (n 13) 2.
27 Ibid.
28 Financial Management of Parliament and Provincial Legislatures Act 10 of 2009.
29 G O Odendaal and T C Ngulube, ‘Executive dominance over the legislative sector in South Africa: Implications for good governance and public accountability’ (2025) 30 Journal of Public Administration, Development, and Accountability 416, 421.
30 Ibid.
31 Speaker of the National Assembly v De Lille and Another 1999 (4) SA 863 (SCA).
32 Ibid (n 31) 868.
33 De Lille (n31).
34 Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others ZACC 11.
35 EFF v Speaker of the National Assembly (n 34) ; SECTION27, Constitutional Court Ruling Affirms the Powers and Duties of All Chapter 9 Institutions (1 April 2016) https://section27.org.za/2016/04/landmark-con-court nkandla-ruling/ (accessed 29 November 2025).
36 Ibid.
37 Ibid.
38 A B M Fawole (n 6) 24.
39 Constitution of the Republic of South Africa, 1996, s 165.
40 O’Brien N.O. v Minister of Defence and Military Veterans and Others ZACC 30.
41 O’Brien N.O. (n 40) [5(e)]; International Commission of Jurists (ICJ), Constitutional Court of South Africa Affirms Judicial Independence of Military Courts and Judges (18 August 2025)
https://opiniojuris.org/2025/08/18/constitutional-court-of-south-africa-affirms-judicial-independence-of-military courts-and-judges/ (accessed 28 November 2025).
42 O’Brien N.O. (n 25) [5(f)]; ICJ (n 26).
43 Ibid.
44 O Kanyane (n 2) 550.
45 K N Ndivhuwo, ‘Judicial Independence and the Transformative Mandate of the South African Judiciary: A Critical Legal Theory Perspective’ (2025) 14(1) Journal of Judicial Administration.
46 Ibid.
47 Report on State Capture (n 7); Parliament ignored state capture and failed South Africans (OUTA Report, 2021) https://www.outa.co.za/web/content/151524 (accessed 29 November 2025).
48 Parliament ignored state capture and failed South Africans (n 47).
49 Ibid.
50 A B M Fawole (n 6) 24.
51 Report on State Capture (n 7)
52 Report on State Capture (n 6) (General Zondo Commission findings); H Groenewald, ‘As the Zondo Commission Reports Show, It May be Time to Curb the President’s Powers’ (2022) The Brenthurst Foundation https://www.thebrenthurstfoundation.org/news/as-the-zondo-commission-reports-show-it-may-b e-time-to-curb-the presidents-powers/ (accessed 29 November 2025).
53 H Groenewald (n 52).
