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Constitutional Law : PBL2000W Assignment number one Name: Astrid Louise Gravenor Student number: GRVAST001

Word Count: 1014

In response to PASSOP's concern about the provisions set-out in the Extension of the Rights of Refugees and Asylum Seekers Act, provisions 1 sub-clause 3 and provision 2 should be declared

unconstitutional on the basis that it violates the separation of powers doctrine that is enshrined in the South African Constitution of 1996.1

The separation of powers doctrine ensures that all the functions of government are classified in either the legislative, executive or judicial branches of law.2 The distinct classification enables the implementation and execution of law to be kept separate so as to avoid having excessive power vested in one particular person or organ of the state.3 Further, it is required that the executive should not make laws and the legislature should not execute laws.4Although this doctrine isn't explicitly stated in the Constitution it is implied and enshrined throughout it. Infringement of this doctrine renders that infringement unconstitutional and therefore invalid. Strictly speaking, the Constitution of South Africa vests the legislative authority in Parliament, and as a result requires that only Parliament is responsible for making the laws of the land.5 This same principle of jurisdiction of power and authority applies to the executive and judicial branches of law and is carefully delineated in various sections of the Constitution.6 This system of separation of powers serves another fundamental purpose which enables a system of checks and balances to exist within the government to make sure each branch is accountable to each other. As far as the doctrine of the separation goes, very few cases allow for the delegation of power across the three branches of government, especially when that delegation results in the unbridled wide powers of a particular branch of law.

Sections 85 and 125 of the 1996, Constitution of South Africa carefully delineates the jurisdiction of power and authority of the executive branch of law.7 In Executive Council of the Western Cape Legislature v President of the Republic of South Africa8 Chaskalson P stated: 'There is nothing in the Constitution which prohibits Parliament from delegating subordinate regulatory authority to other bodies.' He also added that an important factor in this delegation

Act 22 of 2012. Iain Currie and Johan de Waal The New Constitutional & Administrative Law vol 1 (2001) 95. Ibid. Currie (note 1) at 97. Constitution of the Republic of South Africa, 1996 (hereinafter 'the Constitution'). Ibid. Ibid. Executive Council of the Western Cape Legislature v President of the Republic of South Africa 1995 (4) SA 877 (CC) para 62.

depended ultimately on the language of the Constitution, construed in the light of the country's own history.9 However, the judgment of the case highlighted the need for a limitation to be set so as to ensure that the executive could not confer power on itself.10 Chaskalson P stated: 'It is implicit in the power to make laws for the country and I have no doubt that under our Constitution parliament can pass legislation delegating such legislative functions to other bodies . There is, however, a difference between delegating authority to make subordinate legislation within the framework of a statute under which the delegation is made, and assigning plenary legislative power to another body, including, as section 16A does, the power to amend the Act under which the assignment is made.'11

In terms of provision 1 sub-clause 3 of the Refugee Act12, it states that an official of the Department may refuse the application of a refugee and order their immediate deportation if The applicant has been arrested and charged with any crime in the Republic of South Africa. This contravenes the doctrine of separation of powers in that the jurisdiction of the executive branch of government does not cover the ability to judge the refugee to be guilty of a crime, that is under the jurisdiction of the judiciary in accordance with s 165 of the Constitution13 thus it follows that the executive may not order the deportation of said refugee. Further more, any person charged with any crime is always innocent until proven guilty, and the onus of proving the person to be guilty is the job of the judiciary, and only the judiciary. In accordance with the principles set out in Justice Alliance of SA v President of the RSA and Others and Two Similar Applications14 it was concluded that the President could not use his discretion to extend the tenure of Chief Justice Ngcobo as only an Act of Parliament could grant this extension in exceptional circumstances, and the executive would be infringing upon the legislative jurisdiction which ultimately would erode the doctrine of separation of powers and contravene the spirit of the Constitution.

In terms of provision 2 in the Refugee Act15, the Minister of Home Affairs a member of the executive branch of government has no authority or jurisdiction to make, amend or pass any laws

Ibid. Supra (note 4) at 100. Supra (note 9) at 51. Act 22 of 2012. Supra (note 5). Justice Alliance of SA v President of the RSA and Others and Two Similar Applications 2011 (10) BCLR 1017 (CC). Act 22 of 2012.

regarding the deportation of refugees, regardless of whether they pose a national security threat. Ss 104-124 of the Constitution set out the jurisdiction of the legislature.16 In Executive Council of the Western Cape Legislature17, Chaskalson P held that s 37 of the interim Constitution conferred the authority to legislate to Parliament and it was 'subject to' the provisions set out in the Constitution and it 'had to be exercised in accordance with' the Constitution.18 Furthermore, to delegate the power to amend or repeal Acts of Parliament to the President was subversive of the 'manner and form' provisions prescribing the way in which Acts of Parliament were to be passed, contained in ss 59, 60 and 61 of the interim Constitution.19 Thus further reinforcing the fact that in order to uphold and maintain the spirit of the Constitution, the separation of powers, must be strictly adhered to, to prevent enabling the blurring of lines between the different branches of government, and possibly concentrating too much power in one organ of the state.

Thus to conclude, the first provision sub-clause 3, and provision 2, set out in the Refugee Act20 is unconstitutional as they do not adhere to the separation of powers doctrine that is enshrined in the Constitution.21 By extracting legal rules and principles from Justice Alliance of SA v President of the RSA22 and Executive Council of the Western Cape Legislature v President of the Republic of South Africa23it is shown how those same principles hold true and valid for a similar set of facts, namely the unconstitutionality of the provisions set out in the Refugee Act, 22 of 2012.

Bibliography Primary Sources Cases Justice Alliance of SA v President of the RSA and Others and Two Similar Applications 2011 (10)

Supra (note 5). Supra (note 8) para 62. Currie (note 1) at 99. Ibid. Act 22 of 2012. Supra (note 5). Supra (note 14). Supra (note 8).

BCLR 1017 (CC)

Executive Council of the Western Cape Legislature v President of the Republic of South Africa 1995 (10) BCLR 1289 (CC)

Secondary Sources Currie, I and de Waal J 'The new Administrative and Constitutional Law' (2001) Juta & Co Ltd, Cape Town.