The doctrine of separation of powers in South Africa with specific reference to the independence of the judiciary

Abstract

The doctrine of separation of powers was established to prevent absolute concentration of power in a single body. The writings of Locke, Montesquieu, Aristotle and the Magna Carta have contributed to this doctrine and also provided for its pivotal role in every system of government. Separation of powers, also referred to as trias politica, requires the separation of state government into three arms, namely, the legislature with law making functions, the executive with the duty to execute the law and the judiciary with the duty to interpret the law and resolve disputes which arise in terms of the law. In order for the separation of powers to apply effectively, all three arms of government must be independent from each other. The judiciary is the guardian of human rights and freedoms and must at all times be independent and impartial. Those who are vested with the duty of protecting human rights and liberties must remain impartial and independent and must act without fear, favour or prejudice. In South Africa, there have been questions as to whether the independence of the judiciary is at risk of being influenced by external factors such as . political factors and the executive arm of government based on events that have taken place in the past years. Political attacks and the amount of power the executive sphere of government has on the judiciary affect the confidence of the public in the judiciary. A comparative analysis of judicial independence in Canada, the United Kingdom and the United States of America will be conducted in this study. This study examines judicial independence from the view of the doctrine of separation of powers and the current legal standing of this independence in South Africa.