Authored By: Onwabe
University of Zululand
Introduction
Isaiah 33:22 states “For the LORD is our judge, The LORD is our lawgiver, The LORD is our king, he will save us.”[1] The inclusion of this scripture is deliberate. It is not presented as a source of South African law or as a basis upon which constitutional principles should be interpreted. Rather, it provides the personal point of departure for an inquiry into a question that lies at the heart of constitutional government: what happens when human beings are entrusted with authority that, in the language of the scripture ultimately belongs to a higher Judge, Lawgiver and King?
From the author’s point of view, this question gives the subject a meaning beyond the purely academic. Myles Munroe’s observation that “The rule of law is the bedrock of order and social justice”[2] provides a useful bridge between the personal and the constitutional. The rule of law does not merely establish institutions capable of exercising public power; it also requires that such power remains subject to legal limits. South Africa’s constitutional democracy reflects this commitment through constitutional supremacy, accountability and institutional restraint.[3]
The significance of the scripture therefore lies not in attempting to introduce religious doctrine into constitutional law, but in the question it provokes. If human beings are the ones who make laws, administer them and adjudicate disputes arising from them, how should a constitutional system respond to the fact that human judgement is necessarily imperfect? This article approaches that question through the South African doctrine of separation of powers and the constitutional mechanisms designed to prevent the concentration and unlocked exercise of state authority.
The article does not seek to repeat the familiar explanation that legislative, executive and judicial functions are distributed between different institutions. Instead, it asks a more difficult question: can the very people entrusted to exercise constitutional power become limited by their own understanding of that power? The concept of legal blindness is proposed as an analytical lens through which this possibility can be examined.
THE PROBLEM BEFORE THE POWER: Why Constitutionalism Distrusts Human Authority.
Constitutionalism begins with a proposition that is easy to overlook precisely because it is so ordinary: public power is exercised by human beings. The constitutional problem is therefore not confined to deliberate abuse. A person may exercise public power in good faith and still misunderstand its limits, overlook a relevant consideration or allow an institutional perspective to narrow his or her understanding of what the Constitution requires. This raises the question that precedes the allocation of power itself: how can authority be entrusted to human beings without allowing the limitations of human judgement to become limitations of the constitutional order itself?
South African constitutional scholarship recognises that constitutional government requires a balance between giving elected institutions sufficient power to govern and ensuring that such power remains subject to constitutional constraints. Govender argues that constitutional democracy depends upon adequate governmental power being exercised within a system of constitutional checks and balances, with particular emphasis on rationality, propriety, accountability and responsive governance.[4] The significance of this approach is that it moves the discussion beyond the simple proposition that government must obey the law. The manner in which public power is exercised matters as much as the existence of power itself.
This provides a more useful starting point for understanding separation of powers. Rather than viewing the doctrine merely as a division of governmental functions, it can be understood as part of a broader constitutional effort to prevent public power from becoming unchecked. O’Regan’s analysis of the South African model emphasises that separation of powers operates alongside checks and balances. The branches of government are not completely isolated from one another, rather, their interaction is structured in a way that protects institutional independence while preventing one branch from usurping the constitutional functions of another[5]
This point becomes particularly important when human judgement is placed at the centre of the analysis. If every institution were capable of perfect judgment, checks and balances would be far less necessary. Their importance becomes clearer because constitutional authority is exercised by institutions whose members may posses’ incomplete information, competing interests, institutional loyalties and different understandings of the public good.
The constitutional order therefore does something more subtle than simply distribute governmental functions. It prevents the holder of public power from becoming the sole judge of legitimacy of that power. The legislature remains subjects to constitutional requirements; executive power remains subject to legality and rationality, and the judiciary itself operates within constitutional boundaries. The Constitution’s design consequently recognises that institutional power requires institutional restraint.
It is within this tension between authority and limitation that this article develops the concept of legal blindness. The expression is not proposed as an established doctrine of south African law. It is used here as an analytical concept to describe a particular danger in the exercise of power: the failure to recognise a constitutional limit, purpose or consequence because the attention has become fixed on the existence or immediate exercise of the power itself.
Legal blindness, in this sense, does not necessarily involve bad faith. Its significance lies precisely in the possibility that an individual or institution may act sincerely while failing to recognise something constitutionally important. The danger is therefore not simply that those in authority may deliberately disregard the law, but that they may become so accustomed to their own authority that the limits place upon that authority become less visible.
This understanding gives practical meaning to the constitutional safeguards surrounding state power. Separation of powers, judicial review, public participation and other mechanisms of accountability can therefore be viewed not merely as institutional technicalities, but as ways of ensuring that no single exercise of human judgement becomes immune from constitutional scrutiny.
The question that follows is therefore not whether parliament, the executive, or the judiciary possesses legitimate authority. Each soes. The more important question is whether the exercise of legitimate authority remains open to constitutional scrutiny when its limits become obscured.
The Lawgiver: When Legislative Authority Meets Constitutional Accountability.
Parliament occupies a distinctive position in a constitutional democracy. It is elected to represent the people and is entrusted with legislative authority. Yet its democratic mandate does not place its law -making power beyond constitutional scrutiny. The more difficult question is therefore not whether parliament has the authority to make laws, but whether the exercise of that authority remains attentive to the people and constitutional obligations that give the authority its legitimacy.
This tension is clearly illustrated in Doctors for Life International v Speaker of the National Assembly. The case concerned Parliament’s failure to facilitate public involvement in the legislative process surrounding several health-related statutes. The Constitutional Court held that public involvement was not merely a desirable feature of good governance, but a constitutional obligation imposed upon the legislature. Parliament was given a significant discretion in determining how that obligation should be fulfilled, but that discretion had to be exercised reasonably.[6]
The importance of Doctors for Life lies in the balance it establishes. The court did not replace Parliament’s legislative judgement with judicial judgement. Instead, it recognised parliaments institutional autonomy while simultaneously insisting that such autonomy operates within constitutional boundaries. The court ultimately declared that parliament had failed to fulfil its constitutional obligation in relation to two of the statutes challenged and declared those statutes invalid, while suspending the declaration to allow parliament to correct the constitutional defect.[7]
The approach has been described in scholarship as a defining feature of South Africa’s participatory democracy. Public participation is not simply an invitation for citizens to express disagreement, it creates an opportunity for members of the public to understand legislation, make representations and potentially influence legislative decision-making.[8] The significance of this is particularly clear in a country whose constitutional democracy was established against a history in which large sections of the population were excluded from meaningful participation in government.
Justice Sachs’s reasoning in Doctors for Life adds an important dimension. He emphasised that elections do not exhaust the meaning of democracy. Accountability, responsiveness and openness continue between elections, meaning that citizens should not become constitutionally invisible once they have elected their representatives.[9]
This is where the idea of legal blindness becomes useful. Parliament may possess lawful authority to legislate, yet concentrating on that authority alone may obscure the constitutional responsibilities attached to it, The danger is not necessarily deliberate disregard for the public, it may instead arise when the institution becomes so focused on making the law that it loses sight of the constitutional requirement to remain meaningfully connected to those who will live under it.
The court’s more recent decision in Corruption Watch (RF) NPC v Speaker of the National Assembly confirms that Doctors for life remains central to this area of constitutional law. The court reiterated that public participation is an integral feature of South African Constitutional democracy and that parliament retains significant discretion in determining how to facilitate it, subject to an objective standard of reasonableness.[10]
The lawgiver is therefore not constitutionally blind simply because it exercises legislative power. Blindness arises when the existence of that power begins to obscure the constitutional responsibilities that accompany it. Constitutional accountability exists precisely to ensure that legitimate authority remains capable of being questioned.
The King: Executive Power and the Limits of Discretion.
The executive presents a different form the problem because constitutional power is often exercised through decisions made by an individual official in particular circumstances. The question is therefore not merely whether an official possesses lawful authority, but whether that authority has been exercised within the purpose and limits for which it was granted.
This is particularly evident in Minister of Safely and Security v Sekhoto and Another. The Supreme Court of Appeal held that where the jurisdictional requirements for a warrantless arrest are satisfied, the arresting officer has a discretion whether to arrest. Importantly, that discretion must be exercised in good faith, rationally and without arbitrariness, and within the limits of the empowering statute read in light of the Bill of Rights.[11] The Court stressed that rationality is an objective enquiry: a decision does not become rational merely because the official honestly believed it to be rational.[12]
The Constitutional Court’s decision in Groves N.O v Minister of Police adds an important qualification. Although Sekhoto remains significant regarding warrantless arrests, Groves clarified that an officer executing a warrant under s 43(2) of the Criminal Procedure Act has no discretion to refuse to execute the warrant.[13]The distinction is important because constitutional judgement cannot mean that an official simply substitutes personal preferences for legal command.
These cases reveal the other side of legal blindness. An official may become so focused on exercising power or so convinced that the existence of power determines the outcome, that the limits governing that power disappear from view. Conversely, an official must not invent discretion where the law provides none. The constitutional challenge is therefore to ensure that public power is exercised neither mechanically nor personally, but within the legal purpose and constitutional limits that govern it.
Conclusion
Isaiah 33:22 provided the personal starting point for this article, but its significance ultimately lies in the constitutional question it raises: how should human authority be exercised when those entrusted with it remain capable of human error? South African constitutionalism does not answer this question by assuming that those who exercise public power are infallible. Instead, it places their authority within a framework of constitutional limits, accountability and institutional checks.
The discussion of the legislature and the executive demonstrates that lawful authority does not exist in isolation from the responsibilities that accompany it. Legal blindness, as proposed in this article, describes the danger that arises when the exercise of legitimate power causes its constitutional limits to become obscured. The answer is not to distrust public authority altogether, but to ensure that no exercise of human judgement becomes beyond question.
Ultimately, the strength of constitutional government lies not in the perfection of those who govern, but in its capacity to make power answerable when human judgement fails to see what it ought to see.
Bibliography
Table of cases
Corruption Watch (RF) NPC v Speaker of the National Assembly and Others [2025] ZACC 15; 2026 (1) SA 327 (CC)
Doctors for Life International v Speaker of the National and Others 2006 (6) SA 416 (CC)
Groves N.O. v Minister of Police [2023] ZACC 36; 2024 (1) SACR 286 (CC)
Minister of Safety and Security and Security v Sekhoto and Another 2011 (5) SA 367 {SCA)
Legislation.
Constitution of the Republic of South Africa, 1996.
Books
Munroe M, Kingdom Principles: Keys to the Kingdom (Destiny Image Publishers 2006)
Journal Articles
Govender K, ‘Power and Constraints in the Constitution of the Republic of South Africa 1996’ (20130 13(1) African Human Rights Law Journal 82-102
Nyati L, ‘Public Participation: Reflections on the Development of the Doctrine of Separation of Powers under the South African Constitution’ (2005) 8(1) Potchefstroom Electronic Law Journal 119-150
Auxiliary source
The Holy Bible, King James Version
[1] The Holy Bible, King James Version, Isaiah 33:22
[2] Myles Munroe, Kingdom Principles: Keys to the Kingdom (Destiny Image Publishers 2006) 141.
[3] Constitution of the Republic of South Africa, 1996 ss 1(c), 2 and 7(2).
[4] K Govender, ‘Power and Constraints in the Constitution of the Republic of South Africa 1996’ (2013) 13(1) African Human Rights Law Journal 82, 82-84.
[5] K O’Regan, ‘Checks and Balances: Reflections on the Development of the Doctrine of Separation of Powers under the South African Constitution’ (2005) 8(1) Potchefstroom Electronic Law Journal 119, 119 – 123.
[6] Doctors for Life International v Speaker of the National Assembly and Others 2006 (6) SA 416 (CC) paras 122-125, 145-146.
[7] Doctors for Life (n 6) para 225.
[8] See generally L Nyathi, ‘Public Participation: What Has the Constitutional Given the Public?’ (2008) 12(2) Law, Democracy & Development 102, 105-107.
[9] Doctors for Life (n 6) paras 227-235 (Sachs J).
[10] Corruption Watch (RF) NPC v Speaker of the National Assembly and Others [2025] ZACC 15; 2026 (1) SA 327 (CC) para 29.
[11] Minister of Safety and Security v Sekhoto and Another 2011 (5) SA 367 (SCA) paras 28, 36-40.
[12] Sekhoto (n 11) para 36.
[13] Groves N.O. v Minister of Police [2023] ZACC 36; 2024 (1) SACR 286 (CC) paras 48-56.
