Thesis (LLM)--Stellenbosch University, 2002. / Some digitised pages may appear illegible due to the condition of the original hard copy / ENGLISH ABSTRACT: This thesis is a response to the judgment of the Constitutional Court in South African Personal Injury Lawyers v Heath, in which certain provisions of the Special Investigating Units and Special Tribunals Act were subjected to constitutional review. The outcome of the case was the striking down of certain provisions of the Act as unconstitutional, and the removal of Judge Willem Heath from his position as head of the Unit. The provisions were said to infringe upon the principle of separation of powers, an implicit term of the Constitution of South Africa. This principle affects the extent of the judicial power because of its influence on determining the acceptability of extra-judicial functions. The doctrine of separation of powers is therefore considered in its historical and theoretical context, with particular reference to the way in which it tends to limit or define the role of judges. Following this analysis, the status of institutions supporting constitutional democracy is examined, and the legislation governing Special Investigating Units is compared with that which regulates the office of the Public Protector. As a result, some alternative legislative means of achieving the ends of the Units, namely the combating of state corruption and maladministration, are suggested. / AFRIKAANSE OPSOMMING: Hierdie tesis volg op die uitspraak van die Grondwetlike Hof in South African Personal Injury Lawyers v Heath, waarin sekere bepalings van die Wet op Spesiale Ondersoekeenhede en Spesiale Tribunale aan grondwetlike hersiening onderwerp is. Die uitkoms van die saak was dat sekere ongrondwetlike bepalings van die Wet ongeldig verklaar is, en dat Regter Willem Heath van sy posisie as hoof van die Eenheid onthef is. Dit is bevind dat die bepalings die beginsel van skeiding van magte, 'n implisiete term van die Suid-Afrikaanse Grondwet, geskend het. As gevolg van sy invloed op die bepaling van aanvaarbaarheid van buite-juridiese funksies, beïnvloed dié beginsel die omvang van die juridiese mag. Die skeiding van magte leerstuk word dus in sy historiese en teoretiese konteks oorweeg, met spesifieke verwysing na die manier waarop dit neig om die rol van regters te beperk of te omskryf. Na hierdie analise word die status ondersoek van instellings wat grondwetlike demokrasie ondersteun, en die wetgewing wat die Spesiale Ondersoekeenhede beheer, vergelyk met dié wat die Openbare Beskermer reguleer. Op grond hiervan word sekere alternatiewe wetgewende metodes voorgestelom die doeleindes van die Eenhede, naamlik die bekamping van staatskorrupsie en wanadministrasie, te bereik.

This short dissertation deals with separation of powers and federalism in African constitutionalism through the South African case. It investigates the extent to which the new South Africa complies with these two principles. The separation of powers in the new South Africa gives rise to a sui generis parliamentary regime, which is borrowing both from the Westminster model and the presidential one. On the other hand, the principle of federalism has been taken into consideration seriously, but South Africa has not become a fully-fledged federation. The result is a well-matched marriage between semi-parliamentarism and quasifederalism, which is the South African contribution to constitutionalism and democracy required by the African Renaissance. The dissertation comes to the conclusion that all in all the new South Africa complies with the two constitutional principles under consideration. It is a constitutional state, one of the very few exceptions on a continent laboriously emerging from authoritarianism. / Law / Thesis (LL.M.)--University of South Africa, 1998. / LL. M. (Law)

This short dissertation deals with separation of powers and federalism in African constitutionalism through the South African case. It investigates the extent to which the new South Africa complies with these two principles. The separation of powers in the new South Africa gives rise to a sui generis parliamentary regime, which is borrowing both from the Westminster model and the presidential one. On the other hand, the principle of federalism has been taken into consideration seriously, but South Africa has not become a fully-fledged federation. The result is a well-matched marriage between semi-parliamentarism and quasifederalism, which is the South African contribution to constitutionalism and democracy required by the African Renaissance. The dissertation comes to the conclusion that all in all the new South Africa complies with the two constitutional principles under consideration. It is a constitutional state, one of the very few exceptions on a continent laboriously emerging from authoritarianism. / Law / Thesis (LL.M.)--University of South Africa, 1998. / LL. M. (Law)

The thesis is focused on the question of how responsibilities for the performance of public functions are assigned to levels or spheres of government. The term "public function" refers to the activities performed by governments in order to satisfy identified community needs. There is a paucity of validated knowledge concerning the particular phenomenon, and the purpose of the study is to make a research based contribution in this connection. Because of the exploratory nature of the study particular attention is paid to the orientation of the research in Public Administration terms, as well as to research design. A study of the assignment of responsibilities in a selection of foreign countries was undertaken, and the findings are recorded and evaluated. The conclusion reached is that in none of the countries studied a clear, comprehensive demarcation of governmental responsibilities has been achieved. Regarding South Africa, the thesis encompasses a historical overview, followed by separate analytical examinations of the arrangements set in place by the 1993 ("interim") and the 1996 ("final") Constitutions. In the pre-democratic era (1910 to 1994), ideological considerations patently played a prominent role. The treatment of the assignment question by the 1993 Constitution is found to have had substantial shortcomings, especially with regard to conceptual and technical aspects, the realisation of assignment principles, and the substance of assigned responsibilities. In the author's opinion a satisfactory deployment of responsibilities was not achieved. The 1996 Constitution improved the assignment scheme, notably through the better realisation of assignment principles, the introduction of exclusive powers for the provinces, and in dealing with the municipal domain. However, the 1996 Constitution also did not achieve a credible and clear-cut assignment of responsibilities. In assessing the degree to which a scientific approach to the assignment question is in evidence, the finding is that such an approach has not been established. A theoretical assignment model, following a Public Administration approach, is then presented. The model covers language, classification, assignment principles, and methodology. The thesis concludes with a reflection on the research, as well as on the practicalities of achieving improvement in the assignment of responsibilities. / Public Administration / D. Litt. et Phil. (Public Administration)

Text in Afrikaans / The broad focus of the thesis is an analysis of the meaning and the modern development of the doctrine of the separation of power (trias politica) and the application thereof in the constitutional development in South Africa. The first chapter outlines the historical restrictions that were placed on governmental authority by the trias politica doctrine. In the following chapter the application of the trias politica doctrine in different governmental systems (parliamentary, presidential and semipresidential) are analysed. In the third chapter an analysis is made of the constitutions of the former Boer republics, chronologically followed by an analysis of the 1909, 1961 and 1983 Constitutions, to establish to which extent the trias politica doctrine was incorporated in the respective constitutions. In the subsequent chapters, the focus shifts to the constitutions in the post democratic era, namely the 1993 interim Constitution and the 1996 (final) Constitution. It is evident that the new supreme Constitution and an independent judiciary yielded to a stronger adherence to the separation of power principle. It is also evident that the retainment of the parliamentary system, with a fused legislature and executive authority, inhibited a stronger separation of power. The inclusion of sosioeconomic rights in the Constitution resulted in a more direct involvement in governmental policy. However, the Constitutional Court managed to maintain a fine balance between reviewing policy and the formulation of policy. In the closing chapter a short summary is provided, followed by comments on possible alternatives to the existing system to ensure a stronger separation of powers. / Public, Constitutional and International Law / LL. D. (Constitutional, International and Indigenous Law)

The thesis is focused on the question of how responsibilities for the performance of public functions are assigned to levels or spheres of government. The term "public function" refers to the activities performed by governments in order to satisfy identified community needs. There is a paucity of validated knowledge concerning the particular phenomenon, and the purpose of the study is to make a research based contribution in this connection. Because of the exploratory nature of the study particular attention is paid to the orientation of the research in Public Administration terms, as well as to research design. A study of the assignment of responsibilities in a selection of foreign countries was undertaken, and the findings are recorded and evaluated. The conclusion reached is that in none of the countries studied a clear, comprehensive demarcation of governmental responsibilities has been achieved. Regarding South Africa, the thesis encompasses a historical overview, followed by separate analytical examinations of the arrangements set in place by the 1993 ("interim") and the 1996 ("final") Constitutions. In the pre-democratic era (1910 to 1994), ideological considerations patently played a prominent role. The treatment of the assignment question by the 1993 Constitution is found to have had substantial shortcomings, especially with regard to conceptual and technical aspects, the realisation of assignment principles, and the substance of assigned responsibilities. In the author's opinion a satisfactory deployment of responsibilities was not achieved. The 1996 Constitution improved the assignment scheme, notably through the better realisation of assignment principles, the introduction of exclusive powers for the provinces, and in dealing with the municipal domain. However, the 1996 Constitution also did not achieve a credible and clear-cut assignment of responsibilities. In assessing the degree to which a scientific approach to the assignment question is in evidence, the finding is that such an approach has not been established. A theoretical assignment model, following a Public Administration approach, is then presented. The model covers language, classification, assignment principles, and methodology. The thesis concludes with a reflection on the research, as well as on the practicalities of achieving improvement in the assignment of responsibilities. / Public Administration and Management / D. Litt. et Phil. (Public Administration)

Text in Afrikaans / The broad focus of the thesis is an analysis of the meaning and the modern development of the doctrine of the separation of power (trias politica) and the application thereof in the constitutional development in South Africa. The first chapter outlines the historical restrictions that were placed on governmental authority by the trias politica doctrine. In the following chapter the application of the trias politica doctrine in different governmental systems (parliamentary, presidential and semipresidential) are analysed. In the third chapter an analysis is made of the constitutions of the former Boer republics, chronologically followed by an analysis of the 1909, 1961 and 1983 Constitutions, to establish to which extent the trias politica doctrine was incorporated in the respective constitutions. In the subsequent chapters, the focus shifts to the constitutions in the post democratic era, namely the 1993 interim Constitution and the 1996 (final) Constitution. It is evident that the new supreme Constitution and an independent judiciary yielded to a stronger adherence to the separation of power principle. It is also evident that the retainment of the parliamentary system, with a fused legislature and executive authority, inhibited a stronger separation of power. The inclusion of sosioeconomic rights in the Constitution resulted in a more direct involvement in governmental policy. However, the Constitutional Court managed to maintain a fine balance between reviewing policy and the formulation of policy. In the closing chapter a short summary is provided, followed by comments on possible alternatives to the existing system to ensure a stronger separation of powers. / Public, Constitutional and International Law / LL. D. (Constitutional, International and Indigenous Law)

The concept of judicial law-making impacts on the extent, meaning and scope relationship between the legislature, the executive and the judiciary. It is an integral function of the courts while its shape, meaning and nature seem to lack sufficient formulation and articulation, which results in an inherent problem regarding its legitimacy. This study examines the legitimacy and the working of the South African constitutional judicial law-making concepts. Its effect on the constitutional relationships between all three branches of government is scrutinized. In order to fully probe this concept, its impact and application on the separation of powers, judicial review, constitutional deference and mandatory minimum sentences becomes inevitable. The introductory part of this study looks at origins and historical development of the separation of powers doctrine and its application under the 1996 South African Constitution. The latter part focuses on the nature and the scope of judicial review, judicial law-making, constitutional deference and mandatory minimum sentences with a view establishing the impact of these concepts in our judicial law-making. The development of these concepts by South African courts, and what seems to be the lack of formulation and articulation of South African constitutional judicial law-making which raises questions regarding its legitimacy is probed. This research recommends that it is of the utmost importance that South Africa develops its own unique and comprehensive doctrine of separation of powers. The Constitution further requires reforms in order to clarify the extent to which the courts can go when formulating laws and public policy in the interests of justice, and whether the interests-of-justice test is capable of delivering a well-informed outcome in developing this jurisdiction’s laws. South African jurisprudence also needs to be developed in empowering the legislature to make laws which are constitutionally compliant without making the courts the sole expositor of the Constitution. Lastly, the extent to which the legislature can enact certain laws must be redefined, which on face value might seems to be encroaching into the courts’ independence and authority. / Criminal and Procedural Law / LL. D. (Criminal and Procedural Law)