Critical analysis of the doctrine of separation of powers with specific focus on the Economic Freedom Fighters v Speaker of the National Assembly 2018 (2) SA 571 (CC)

Abstract

Although the Constitution of the Republic of South Africa, 1996 does not specifically make reference to the phrase “separation of powers”, the constitutional scheme, however, subscribes to the doctrine of separation of powers. The manner in which the Constitution allocates powers and functions to the different organs of the state is indicative of the application of the doctrine of separation of powers. This study was aimed at investigating whether the separation of powers principle was not trampled upon in the light of the decision in EFF2. The study finds that there was judicial overreach in EEF2. The majority judgment encroached into the exclusive domain of Parliament. The court, in exercising its checks and balances role, failed to observe its own constitutional limits by dictating how Parliament should run its affairs. The study recommends that courts must respect the duties and functions of other organs of the state. Courts must understand that each organ of the state has a duty to perform. Only when an organ of the state has performed a duty or function in a manner that offends or violates the Constitution can the court intervene.