Institutional Integrity and the Promise of Constitutionalism: Justice Moseneke, Judicial Authority and the Separation of Powers

Authors Heinz Klug

ISSN: 1996-2088
Affiliations: Evjue-Bascom Professor of Law, University of Wisconsin and Honorary Senior Research Associate, University of the Witwatersrand School of Law
Source: Acta Juridica, 2017, p. 3 – 28


This essay takes a demonstrative journey through Deputy Chief Justice Dikgang Moseneke’s Constitutional Court decisions, celebrating and illustrating the Justice’s personal and institutional commitment to the integrity of the Constitution. First, the author explores the scholarly arguments that see South African jurisprudence observing a unique ‘separation of powers’ doctrine, shaped by a distinctive constitutional system that falls somewhere between a common-law parliamentary system and the German system of constitutional democracy. Then the essay reflects on Justice Moseneke’s role in creating and upholding the separation of powers doctrine through an analysis of some of the Justice’s decisions. Finally, the essay explores Justice Moseneke’s role in establishing the parameters of the very judicial authority he practised, through a skilful exercise of institutional self-restraint and assertion of the role of integrity as well as the recognition of the Constitution’s creation of independent institutions outside of the traditional trias politica.