Separation of powers and the dangers of judicial underreach

Abstract

This chapter takes a closer look at the institutionalisation of the doctrine of separation of powers within the context of South Africa's constitutional democracy. After delving into the meaning of the doctrine, we critique the argument for a distinctively South African model of separation of powers to be adopted and consider the doctrine of separation of powers and judicial practice in SER cases. We then use the analogy of homeostasis to describe the operation of the three branches of the state in relation to one another and to the whole. In other words, if one branch of the state exercises its powers beyond what is expected of it, a reaction by another branch of the state will tend to reintroduce equilibrium into the equation, thus emphasising the interdependence of the branches of government and the need for a more fluid interpretation of the doctrine of separation of powers.