Die regsprekende gesag en die leerstuk van skeiding van magte in die Suid-Afrikaanse regstaat
Herbst, Nicolaas Johannes
MetadataShow full item record
South Africa's previous constitutional dispensation may without a doubt be described as an era where injustice prevailed. In this era parliament passed laws with the intent to discriminate against the majority of the people. In doing so, it created a regime known as the Apartheids-regime. Under the influence of British Colonial Laws, South Africa adopted and followed the Westminster-system until 27 April 1994. One of the main characteristics of the Westminster-system is the notion that parliament is supreme. A further characteristic of this model is that there must be a partial separation between the legislative, executive and the judiciary. This division between the three branches of government is universally known as the doctrine of separation of powers. In terms of the doctrine of separation of powers, government's authority is to be divided between the legislative, executive and the judiciary in an endeavour to prevent too much authority being vested in one branch of government. In a valuable contribution by Professor Vile, Constitutionalism and the Separation of Powers, the author suggests a model for the doctrine in terms whereof government's authority is divided between the three branches with appropriate checks and balances between them, in order to ensure that each branch serves as a "watch dog" for the other. This idea did, however, not flourish in South Africa under the banner of parliamentary sovereignty. The judiciary had limited control over the legislature and executive. In fact, the judiciary was only entitled to review laws passed by the legislature as far as it related to procedure. The judiciary was not in a position to review the substance of laws. The birth of the new constitutional order brought radical changes to the previous dispensation. The Constitution of the Republic of South Africa 108 of 1996 serves as the supreme law of the Republic. In terms of the Constitution, the judiciary is independent from the legislature and the executive and will be the guardian of the Constitution. With its new status, the judiciary is in the position to review legislation and acts of the executive - procedurally and substantially. The Constitution furthermore provides that any legislation and acts of the executive inconsistent with its provisions are void. It is the duty of the judiciary to test legislation and acts of the executive against the provisions of the Constitution. As guardian of the Constitution, the judiciary finds itself in the position where it may make rulings that potentially infringe on the primary functions and territory of the legislature and executive. This infringement is, strictly speaking, an undermining of the doctrine of separation of powers. The inclusion of the so-called second and third generation rights in the Bill of Rights, such as socio-economic rights do not make the judiciary's task any easier. The justiciability and enforcement of second and third generation rights usually leaves the judiciary in a predicament. It is well known that the enforcement of second and third generation rights has the potential to have budgetary implications. In the event that a court enforces second and third generation rights, its decision will be criticized by those in favour of a strict application of the doctrine of separation of powers. On the other hand, in the event that a court is reluctant to enforce these rights due to its deference to the legislature and the executive, it will be equally criticized for not upholding the principles of the Constitution. In a democratic state such as South Africa, the people elect its government. In this regard the following problem arises: What is the position when government, who is elected by the majority, neglects and/or fails to realize a specific right entrenched in the Bill of Rights. Can it be argued that government's failure to realize such a right is constitutional based on the fact that it is democratically elected? Or should it be argued that its conduct is unconstitutional in terms of the principles of the Constitution? This phenomenon is known as the counter majoritarian dilemma. As guardian of the Constitution, it is the function of the courts to take decisions of this nature. As already stated, the judiciary will trespass on the domain of the legislature or executive when it enforces the entrenched constitutional rights. As a result of this trespassing its conduct will be in direct conflict with the doctrine of separation of powers. The present study undertakes to find a solution for the counter-majoritarian dilemma. The purpose of the study is twofold. In the first instance it seeks to create an understanding where the boundaries between the different branches of government authority lie. Within this exercise the following matters are addressed: elements of the formal Rechtsstaat (which include a separation of powers and an independent judiciary), the concept of government authority, the development of the doctrine of separation of powers from the ancient periods until present and the relationship between the judiciary with the legislative and executive authority. In the second instance, it addresses instances where the judiciary acts beyond its powers. In this regard a brief comparison is made to Germany and Canada in an endeavour to find possible solutions to counter-majoritarianism. The study concludes that, as a general basis for constitutional review, the counter-majoritarian dilemma can only be addressed by considering the boundaries of judicial review. Secondly, in the event that it is not possible to determine such boundaries, that the judiciary enters into a constructive dialogue with the relevant branch of government to resolve the issue. In this contribution, the author seeks to introduce the Webber-model of dialectic dialogue as a basis to address the counter-majoritarian dilemma.
- Law