The rule of law is entrenched in section 1 of the Constitution of South Africa (“the Constitution”) which states that:
“The Republic of South Africa is one, sovereign, democratic state founded on the following values:
(a) Human dignity, the achievement of equality and the advancement of human rights and freedoms.
(b) Non-racialism and non-sexism;
(c) Supremacy of the constitution and the rule of law.
(d) Universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness.”
One of the applications of the rule of law is that a person should be able to know the law in order to be able to arrange his actions accordingly. In this regard Mokgoro J, in her concurring judgment in the case of President of the Republic of South Africa v Hugo 1997 (4)(SA 1 (CC), held that:
“The need for accessibility, precision and general application flow from the concept of the rule of law. A person should be able to know of the law, and be able to conform his or her conduct to the law.”
The separation of powers means that the functions of government must be classified as either legislative, executive or judicial and that these functions must be performed by different branches of government.
The purpose of separating powers is to prevent the concentration of power.
In South African Association of Personal Injury Lawyers v Heath 2000 BCLR 77 (CC) the court held that the doctrine of separation of powers is based on inferences drawn from the structure and provisions of the Constitution, rather than on an express entrenchment of the principle. The Constitution provides for the separation of powers between the executive, the legislature and the judiciary.
The court held that “there can be no doubt that our Constitution provides for such a separation and that laws inconsistent with what the Constitution requires in that regard are invalid”.
The court continued to state that:
“The separation of the Judiciary from the other branches of government is an important aspect of the separation of powers required by the Constitution and is essential to the role of the courts under the Constitution. Parliament and the provincial legislatures make the laws but do not implement them.
The national and provincial executives prepare and initiate laws to be placed before the legislatures, implement the laws thus made, but have no law-making power other than that vested in them by the legislatures.
Although Parliament has a wide power to delegate legislative authority to the Executive, there are limits to that power.
Under our Constitution it is the duty of the courts to ensure that the limits to the exercise of public power are not transgressed.