Deputy Chief Justice Moseneke’s Approach to the Separation of Powers in South Africa
Authors Mtendeweka Mhango, Ntombizozuko Dyani-Mhango
Affiliations: Adjunct Professor, Nelson Mandela School of Law, University of Fort Hare; Associate Professor, School of Law, University of the Witwatersrand, Johannesburg
Source: Acta Juridica, 2017, p. 75 – 98
This paper is premised on the proposition that there is a need for the development of a separation of principle, which incorporates a lucid political question doctrine that will assist the country to dispose of political questions that come to the courts for adjudication. In this regard, we address two things: firstly, we examine Moseneke DCJ’s jurisprudence on separation of powers in two specific and related cases in International Trade Administration Commission v SCAW South Africa, and National Treasury v Opposition to Urban Tolling Alliance, where he penned majority opinions. These cases are related because Moseneke DCJ builds on the theme of the separation of powers that he pronounced in International Trade Administration Commission v SCAW South Africa, when he resolved the issue in National Treasury v Opposition to Urban Tolling Alliance. In examining this jurisprudence, we are critical of Moseneke DCJ’s failure to contribute to the development of a coherent political question doctrine for South Africa, which defines the scope and contours for judicial authority, and for being unable to provide cogent reasons in some of his academic commentaries against the application of such principle of restraint.