Ngcobo urges debate on powers

2010-10-16 09:44

Stellenbosch - Chief Justice Sandile Ngcobo on Friday encouraged debate on the defining features of the separation of powers in SA.

Delivering the annual human rights lecture at Stellenbosch University's human rights department, he said the separation of powers between the executive, judiciary and legislature was not a new thing and could be traced back over many centuries to curb the abuse of power.

Well over 200 years ago the importance of the separation of powers in a democracy was recognised.

Today checks and balances were commonplace in modern democracies.

An appropriate doctrine for the separation of powers in South Africa would only be developed over time.

The South African Constitution contemplated an interaction between the courts and other branches of government.

It was necessary to move away from the perception that the courts were engaged in a tough battle with other levels of government.

All branches of government after all had a role in play in upholding the Constitution, he said.

The Constitutional Court had the final word on whether legislation was constitutional, making it the ultimate guardian of the Constitution and the values enshrined within it.

Within this context the court interacted with other levels of government.

The South African courts were engaged in an ongoing dialogue with other levels of government in that when the courts struck down legislation, government had to respond and the legislature had to amend laws accordingly.

This began at the dawn of South Africa's new constitutional order, when the Constitutional Court had to certify the Constitution itself. It concluded that most, but not all parts in the Constitution complied. Amendments were then made, and it was certified the second time round.

This was the start of the court's ongoing dialogue with other branches of government.

The Constitutional Court facilitated this dialogue in three ways. Firstly it had the power to strike down legislation or acts. Secondly, bills could be referred to it by the president, the provinces or others. Thirdly, it had the power to protect socio-economic rights.

The judiciary had an important role to play in defending these rights, and the state needed to respond to court rulings.