Authored By: Tsakane Ayanda Madiseng
University of the Witwatersrand
- INTRODUCTION
Separation of powers is the legal doctrine that distributes power or state control among two or more branches of government. This doctrine is important to constitutional democracy because it aims to prevent the abuse of power, which is likely to occur when state power is concentrated in a single branch of government. The political influence on other spheres of government, which has undermined the doctrine of the separation of powers, has become more apparent, particularly with the recent ad hoc committee formed by the Parliament to investigate allegations made by Lieutenant-General Nhlanhla Mkhwanazi, the police commissioner of KwaZulu-Natal.
South Africa’s constitutional democracy in the post-1994 era signaled the collapse of the apartheid regime, which promised freedom and racial equality. This collapse led to the enactment of the doctrine of separation of powers, which promised accountability and transparency. However, continuous political influences have shaken the doctrine and its foundation in the democratic era.
This article aims to investigate the significant strain the political influences have placed on the constitutionally mandated system of separation of powers whilst arguing that structural reform is needed for separation of powers to persist.
THEORETICAL FOUND SEPARATION OF POWERS
- Definition
Charles-Louis de Secondat, Baron de Montesquieu is credited with developing the separation of powers doctrine, though he did not invent the doctrine. According to Montesquieu, the separation of powers allowed for the protection of liberty through ‘the concentration of political power by providing staggered terms of office in the key governmental bodies.’ Furthermore, under Montesquieu’s formulation of the doctrine, the judiciary occupied a more important position than in formulations by previous writers.
Essentially, according to Montesquieu, a government’s power should be divided among distinct branches, each with distinct functions, to ensure a system of checks and balances that prevents the concentration of power and safeguards individual freedom and autonomy. Montesquieu’s formulation of separation of powers has influenced modern constitutional frameworks, which are more flexible in their arrangements and exhibit a wide variety in their distribution of state control.
- South African constitutional framework
In South Africa, the doctrine of separation of powers is entrenched in the Constitution, which separates the government into three spheres: i. Legislation (Parliament) ii. Executive (President and Cabinet) iii. Judiciary. These arms of government conduct ‘appropriate checks and balances to ensure accountability, responsiveness and openness’.
Under this separation, the legislative authority enables the Parliament to make and enforce rules that control the people who live in the country and that affect a country’s economy, its people and its government. Executive authority allows the President, Cabinet and Deputy Ministers to apply the law and make sure that the laws and policies are properly and effectively realized. Judicial authority tasks courts and tribunals with interpreting the laws and confers the power to adjudicate on legal matters and to pass judgments and legal precedents.
- Constitutional Safeguards
In addition to requiring government branches to prevent the misuse of authority and stay within their designated boundaries, the Constitution provides safeguards to protect the separation of powers. One way it does this is by creating Chapter 9 institutions which, uphold constitutional democracy. According to s 181 of the Constitution, these institutions are ‘independent, and subject only to the Constitution and the law, and they must be impartial and must exercise their powers and perform their functions without fear, favour or prejudice.’ Furthermore, ‘other organs of state, through legislative and other measures, must assist and protect these institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions and no person or organ of state may interfere with the functioning of these institutions.’
The Constitution promises independence, accountability and transparency through separation of powers. However, more cases of corruption come into light which raises the question of whether the constitutional text is sufficient for the effective application of this doctrine.
SOUTH AFRICAN LEGAL CONTEXT
- Historical context
The doctrine of separation of powers is particularly important to the South African governmental landscape due to its harrowing past. For the latter half of the twentieth century South Africans lived under the apartheid system implemented by the parliamentary sovereignty, where nonwhites were exposed to racial dominance and segregation as well as political and economic discrimination.
During this period, judicial protest to the racist system that violated human rights was not apparent. In fact, ‘judicial officers often regarded these apartheid laws and practices as “normal law”. Those who did regard the law as unacceptable did not consider it their place to comment on the law’s character.’ In addition to validating the apartheid system, suppressing political disagreement, and encouraging systemic racial discrimination, the law was the primary means of violating human rights along with the dignity, freedom and equality of the nonwhite majority.
It was practically impossible to effectively protect human rights through the law pre-1994, before the establishment of a new democratic era because there was no constitutional check on the arbitrary laws passed by Parliament which did not intend to adhere to the law. The importance of the separation of powers thus become apparent because ‘at the end of the apartheid era; it became important that some credible body be vested with the power to blow the whistle when the parameters of a constitutional covenant were transgressed.’
It is important that the judiciary is responsible for this role as it is valued for its emphasized impartiality and independence and also because ‘in a credible democracy such an agency could only be the judiciary alone. The judiciary alone would have the final power to decide whether the impugned enactment or provision had transgressed the constitutional guarantee.’
- Judiciary as a transformative actor.
In the new democracy, the judiciary has constitutionally protected independence. S 165 of the Constitution grants courts judicial authority and states that ‘the courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice. No person or organ of state may interfere with the functioning of the courts.’ The Constitutional Court is the highest court for interpreting, protecting, and enforcing the Constitution. The ConCourt only hears cases that concern constitutional matters such as the interpretation and application of the Constitution.
Moreover, s 178 of the Constitution establishes the Judicial Service Commission, which is an independent body responsible for upholding judicial impartiality. The JSC has authority to advise the national government on matters pertaining to judiciary and the effective carrying out of justice. It also handles complaints against judges, evaluates candidates for judicial positions and makes suggestions for bench appointments thus ensuring a fair and transparent judiciary that maintains public trust in the courts.
- Case studies
- S v Makwanyane
S v Makwanyane was the first case in the Constitutional court and addressed the constitutionality of the death penalty. After being found guilty of murder and given the death penalty, the applicants in the case contested the validity of s 277(1)(a) of the Criminal Procedure Act.
The court found that s 277(1) breached the constitutionally protected right to not be exposed to treatment or punishment that is inhumane or cruel which affected the rights to life and dignity. The Makwanyane case was heard during the transition period from apartheid to democracy, a time of significant political change.
This case started a new trend in protecting human rights. Furthermore, the judgment emphasized compassion, humanity and the interconnectivity of all people through the incorporation of the African notion of Ubuntu that is found in the spirit and purport of the Bill of Rights.
- Blue Moonlight
Blue Moonlight is another landmark case that follows the ever-growing trend of protecting human rights. This case concerned the balancing of the ‘right to adequate housing’ and property rights, specifically the ‘constitutional prohibition against arbitrary deprivation of property’.
In this case, the occupiers claimed that the City was required by the Constitution to provide alternative housing as Blue Moonlight Properties, the owner of the unused building, sought to remove them to develop the building.
On appeal, the Constitutional Court held that ‘a court cannot grant an eviction order pursuant to the PIE Act unless it is just and equitable.’ Furthermore, the court concluded that the property owner’s rights may become secondary to the occupants’ right to housing whn evicting residents from private property would render them homeless.
This ruling is important because it makes it clear that the state must provide alternative accommodation to illegal occupants who might become homeless after being evicted from private property, simultaneously showing that illegal squatters’ rights to shelter may sometimes restrict a private owner’s property rights. The case also reinforced the social context of property in South Africa by balancing socio-economic rights with private property rights.
CORRUPTION AS A POLITICAL INFLUENCE
- Definition
Political influences vary, however, considering the recent Vusimuzi ‘Cat’ Matlala case, the focus of this part of the article will be on corruption. Corruption is defined as ‘dishonest or fraudulent conduct by those in power’. Expanding on this definition, corruption as a political influence is the use of corruption as a tool to maintain power which is subsequently used to gain, maintain and expand political authority. In other words ‘corruption becomes political by other means, enmeshed in how institutions operate, allocate power and make decisions.’
- How corruption influences corruption
One way corruption influences politics is by undermining governance and trust. When political parties are linked to corruption, voter turnout and support decline because corruption undermines the legitimacy and trust of political leaders, raising doubts about their honesty and motivations.
Another way is through the weakening of the rule of law. This is because corruption enables the corrupt to subvert legal policies and laws, thereby weakening legal frameworks and fostering further corruption. This is because ‘when legal frameworks are compromised, corruption becomes systemic, disproportionately enriching those with resources and power while exacerbating impoverishment among the broader population.’
CASE STUDIES
- State Capture: Zuma and the Gupta family
This case is an example of executive overreach. State capture is defined as ‘a form of corruption where private interests significantly influence a state’s decision-making processes for their own benefit.’
State-owned businesses and government agencies in South Africa had contracts with the Guptas’ businesses, and the Guptas ordered public employees in charge of numerous state agencies to make decisions that served their personal agendas.
‘…Public bodies that are said to have been “captured” in this fashion include the ministries of finance, natural resources and public enterprise, as well as the government agencies responsible for tax collection and communications, the state broadcaster SABC, the national carrier, South African Airways, the state-owned rail-freight operator Transnet and the energy giant Eskom, one of the world’s largest utility companies.’
This is all to illustrate that the Gupta family successfully blurred the lines between executive and private authority by influencing ministerial selections and state contracts. As President of South Africa, Zuma had the authority to appoint heads of law enforcement and boards members for state-owned businesses, which was crucial to the success of the state capture. Therefore, the NPA and other democratic monitoring institutions were undermined by the misuse of executive power to further private interests.
- Compromising the judiciary
Judge Hlophe’s case is an example of the judiciary being compromised and features the appointment of an impeached judge to the Judicial Service Commission. Hlophe was previously impeached for breaking his judicial oath and was considered unqualified to serve as a judge, therefore Parliament violated the Constitution by nominating him to the commission and undermined the validity and integrity of any JSC procedure in which he might participate in future judge selections. The Western Cape High Court decided that ‘the judicial branch is responsible not only for resolving disputes between private parties, but also for resolving disputes between government and private parties and even disputes between different branches or sectors of government. It has the responsibility to protect individuals from government overreaching, and it plays an important role in our country’s constitutional balance of powers.’
Under the new democratic order, the judiciary is vital to the preservation of constitutional democracy. By guaranteeing answerability and defending people’s rights, the judiciary is essential to preserving the balance of power. Therefore ‘…appointing an impeached judge to the JSC undermines the very body entrusted with upholding judicial integrity and accountability.’
- Ad hoc committee into the investigation of serious allegations by the KZN police commissioner
An ad hoc committee was established to investigate allegations posed by the KZN police commissioner. These allegations include the illegality of Police Minister Senzo Mchunu’s decision to abolish the Political Killings Task Team, and his supposed prohibition on filing positions in the SAPS Crime Intelligence Unit. Additional considerations include the nature and implications of the connection between certain members of the public and SAPS senior leadership as well as the Investigative Directorate Against Corruption’s alleged interference in police matters, including court proceedings.
If General Mkhwanazi’s allegations are proven true, it could expose how some groups undermine the integrity of law enforcement for personal or political advantages. This means that legislative and structural reforms are required to restore public confidence in the criminal justice system.
ARGUMENTS FOR AND AGAINST THE TOPIC QUESTION
- South Africa cannot still claim separation of powers
Despite the constitutional promise of separation of powers, which is meant to lead to greater accountability and transparency, ongoing cases of corruption show that the principle is poorly implemented in practice. The three case studies above, which are just a few of many, expose a recurring pattern of encroachment, overreaching and the undermining of the separate duties and powers of the distinct spheres of government, notably leading to executive dominance.
Independent institutions and impartial bodies are rendered useless by corruption, leading to weak legal rules that can easily be subverted and violated with little to no disciplinary action. And if the disciplinary action does occur, it is politicized and ineffective as a deterrence.
Public confidence in the system is eroded by constant corruption and lack of, if not ineffective, punishment of the perpetrators, making it difficult to conclude that South Africa can continue to claim separation of powers with full confidence.
- South Africa can claim separation of powers
In the same breath, there is no denying that South Africa has undergone significant changes since its harrowing past where the blatant violations of human rights were considered ‘normal law’. The doctrine of separation of powers though poorly executed in some arears, does a great job in preventing the abuse of power on the scale of that of apartheid.
There is greater protection of human rights and an almost strict adherence to the Constitution as the supreme law of the Republic exemplified by the notion that only the Constitutional Court as the highest court in South Africa has jurisdiction on constitutional matters. And as a result, although shaken, the public’s confidence in the judiciary, at least, as the guardian of human rights, remains high.
The judiciary remains the body entrusted with preventing abuse of power by both the executive and parliament and it continues to play its role as a whistleblower by ruling against the government when necessary. Compared to the era of apartheid, South Africa’s democratic order largely maintained by the separations of powers doctrine is a system worth upholding and claim despite its many flaws and shortcomings.
CONCLUSION
Although significantly weakened by structural politics and recurring corruption cases, South Africa can still claim separation of powers. But it is under serious strain, which calls for comprehensive structural reform and the enactment of further legislation as constitutional text is no longer sufficient.
BIBLIOGRAPHY
BOOK
M.J.C Vile, Constitutionalism and the Separation of Powers (2nd edn, Indianapolis, Liberty Fund 1998).
CONSTITUTION
Constitution Act 1996 s 25, 26, 165(2), 165(3), 181(2).
CASE LAW
S v Makwanyane and Another [1995] ZACC 3, [1995] 6 BCLR 605.
Democratic Alliance v Hlophe and Others [2025] ZAWCHC 234, [2025] 10 BCLR 1206.
City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another [2011] ZACC 33, [2012] 10 BCLR 150.
DICTIONARY
Oxford English Dictionary, ‘corruption’ (online edn, Oxford University Press) <https://www.oed.com/> accessed 11 December 2025.
JOURNAL
Tholakele H. Madala, ‘Rule under Apartheid and the Fledgling Democracy in Post-Apartheid South Africa: The Role of the Judiciary’ (2011) 752, 755, 756.
WEBSITE
Faizel Patel, ‘Court finds impeached judge John Hlophe unfit to serve on JSC’ (The Citizen, 2 June 2025) <https://www.citizen.co.za/news/south-africa/courts/court-impeached-judge-john-hlophe-unfit-serve-jsc/> accessed 11 December 2025.
LegalClarity Team, ‘What Is the Definition of Legislative Power?’ (LegalClarity, 23 January 2025) <https://legalclarity.org/what-is-the-definition-of -legislative-power/> accessed 11 December 2025.
LegalClarity Team, ‘What Is State Capture and How Does It Work?’ (LegalClarity, 27 August 2025) <https://legalclarity.org/what-is-state-capture-and-how-does-it-work/> accessed 11 December 2025.
Evelyn Carter, ‘The Impact of Corruption on Political Party Trust in South Africa’ (ancarchive.org.za) <https://ancarchives.org.za/the-impact-of-corruption-on-political-party-trust-in-south-africa/> accessed 11 December 2025.
Mayibongwe Maqhina, ‘Parliament forms Ad Hoc Committee to investigate serious allegations by KZN police commissioner’ (The Star) <https://thestar.co.za/news/politics/2025-07-24-parliament-forms-ad-hoc-committee-to-investigate-serious-allegations-by-kzn-police-commissioner/> accessed 11 December 2025.
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Simon Hutagalung, ‘The Rule Of Law And Corruption: A Battle For Justice And Equality – OpEd’ (eurasiareview, 14 October 2024) <https://eurasiareview.com/14/025-the-rule-of-law-and-corruption-a-battle-for-justice-and-equality-oped/> accessed 11 December 2025.
‘The 34 Constitutional Principles’, <https://ourconstitutionwethepeoplesa.org/the-34-constitutional-principles/> accessed 11 December 2025.
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Brain Duignan, ‘Separation of Powers’ (Britannica, 12 December 2025) <https://www.britannica.com/topic/separation-of-powers> accessed 12 December 2025.
Neil Arun, ‘State Capture: Zuma, the Guptas, and the sale of South Africa’ (BBC News, 15 July 2019) <https://www.bbc.comm/news/world-africa-48980964.amp> accessed 12 December 2025.
David Jackson, Inge Amundsen, ‘The flipside of corruption: when anti-corruption becomes politicised’ (u4, 29 March 2022) <https://www.u4.no/blog/the-flipside-of-corruption-when-anti-corruption-becomes-politicised> accessed 12 December 2025.
Toerien van Wyk, ‘A New Role for a New Court: S v Makwanyane’ (IACL-IADC, 17 December 2019) <https://blog-iacl.aidc.org/constitutional-landmark-judgments-in-the-commonwea/2019/12/17/a-new-role-for-a-new-court-s-v-makwanyane> accessed 12 December 2025.
‘Role of the Constitutional Court’ <https://www.concourt.org.za/index.php/about-us/role> accessed 12 December 2025.
