THE JUDICIARY AND THE SEPARATION OF POWERS 

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CHAPTER 3 HISTORICAL  SURVEY  OF  SOUTH  AFRICAN CONSTITUTIONAL DEVELOPMENT.

In this chapter the constitutional development of South Africa is analysed. The purpose of this analysis is to trace the development of the doctrine of legislative supremacy in South Africa and the role of the judiciary in the light of this development. An interesting phenomenon in this development is the active role of the judiciary during the period of the Boer Republics, especially in the Transvaal and the Orange Free State.
The constitutional development of South Africa may be divided into four main periods, namely the period before 1910, the period between 1910 and 1961, the period between 1961 and 1983 and the period between 1983 and 1993. All these periods are marked by a particular trend concerning the role of the judiciary and the influence which a tradition of legislative supremacy has had on the role of the judiciary.
Before the occupation of the Cape by the Dutch-East India Company in 1652, parts of what bas become South Africa were inhabited by indigenous Black people. The occupation of the Cape by the Dutch-East India Company was not for the establishment of a government but mainly for commercial purposes. ¹ Jan van Riebeeck, who effected the occupation, was not a representative of the ¹The occupation was for the establishment of a refreshment station for the Company’s ships en route between Holland and the East Indies : See C.F.J Dutch government but of the Company.² Until the Batavian period,³ the government or rule that obtained in the Cape was confined mainly to servants of the Company .4
Between 1652 and 1795 the Cape was governed by a Governor, who was the chief representative of the Dutch-East India Company. Legislative, executive and judicial authority vested in a single body, the Political Council. ⁵ The Political Council performed its judicial functions as the Council of Justice. A High Court, which replaced the Council of Justice, was established in 1785 .⁶
Contitutional development began in earnest with the second occupation of South Africa by the British in 1806, after which, and until 1910, the Cape of Good Hope became, without interruption, a British Colony. ⁷ During this period the British system of government gradually found its way into South Africa and eventually became the cornerstone of the South African constitutional system.8

Constitutional Development before 1910.

³The Batavian Government (1803-1806) was a popular government which replaced the monarchy in Holland after the French conquest. During this period the Cape ceased to be a trading post; it was regarded as a Colony, governed by officials with public responsibility regarding legislative and executive matters: Marais op cit. at 11.
Real constitutional development in the Cape of Good Hope began in 1825 with the establishment of a nominated Advisory Council, consisting of the Chief Justice and some leading officials. Legislation was by way of ordinances of the Governor-in-Council. However, the Council enjoyed very limited control over the Governor and was far from being a representative body. ⁹
In 1834 the new Governor, Sir Benjamin D’Urban, introduced a new Constitution. In terms of the new Constitution, government was by an Executive Council, consisting of the four most senior officials and the Governor; the Governor presided at meetings of the Council. The same officials , together with the Attorney-General and from five to seven nominees of the Governor, also constituted the Legislative Council. ¹⁰ The legislative powers of the Council were, however, very limited; these powers were restricted to a limited number of topics. ¹¹
From 1836 onwards the Voortrekkers gradually began to leave the Cape and settled in Natal, the area between the Orange and Vaal rivers, and in the Transvaal. ¹² At an assembly held in 1836 at Thaba’nchu, the Voortrekkers elected seven ‘judges’ to act as a court of landdrost and heemraden; they also established a legislature which was to be bound by the rules made at a general meeting of the people. ¹³
In 1838 the Voortrekkers established the Republic of Natalia. Although there was a House of Assembly (the Volksraad), supreme authority was exercised by the people at mass meetings. ¹⁴ Elected representatives and government officials were directly responsible to the peopleY Natal was annexed by the British in 1843 and remained a British colony until Union. ¹⁶
A new Constitution, founded on letters patent of 1850, came into force in the Cape Colony in 1853. ¹⁷ The new Constitution was based on the British model; it made provision for a Parliament consisting of the Governor, an upper House (the Legislative Council) and a lower House (the House of Assembly). The upper House consisted of the Chief Justice, who acted as its president, and fifteen members elected in single electoral divisions; the lower House consisted of forty-six elected representatives. As the Constitution was based on the British model, parliamentary legislation enjoyed a higher status; courts of law were incompetent to override or set aside parliamentary legislation.
The area between the Orange and Vaal rivers, the Orange River Colony, was annexed by the British in 1849. It gained its independence from British rule in 1854, in terms of the Bloemfontein Convention. Its Constitution provided for a unitary state with a popularly elected unicameral legislature composed only of white adult males. The President was elected by popular vote; he was the head of the executive but not a member of the legislature; although he, could initiate legislation, he had no power to veto its enactment. ¹⁸
The South African Republic (Transvaal), which was established in 1853, did not have a clearly identifiable Constitution. Some form of a ‘constitutional’ document was produced in 1860. There was no certainty as to whether this ‘Constitution’ enjoyed the status of fundamental law, with supremacy over enactments of the legislature; neither was any express provision made for its amendment. Indications were that supremacy was vested in the people and not in the legislature. ¹⁹ The ‘Constitution’ made provision for inequality between whites and non-whites; only adult white males were eligible to elect the unicameral legislature. The State President was elected by popular vote. No provision was made for the constitutional guarantee of civil rights.²⁰
There had already been some indications of a unification of the colonies at the turn of the century. Some movement towards a federation of the Orange River Colony and the Transvaal had occurred. ²¹ It was not until 1910, however, that the four colonies were unified, after the National Convention of 1908 and the adoption of the South Africa Act, 1909. ²²

The Legislative Authority before Union.

The legislative authority in the Cape colony had been based on the British model since 1853 . ²³ Parliament consisted of a Governor and two houses, the,Legislative Council and the House of Assembly. Since the Cape was a British colony its Parliament was, however, not sovereign in the international sense. However, save for the fact that the Cape Parliament was subordinate to the British Parliament it could legislate with a free hand; no court of law was competent to inquire into or to question the validity of acts of the legislature. A similar position also obtained in Natal.
The position in the Orange Free State and the South African Republic (Transvaal) was quite different. The constitutional systems of these two colonies were a marked departure from the British constitutional model. While the Orange Free State Constitution was rigid and consistently adhered to, the Transvaal Constitution was less rigid and constantly flouted.
The Orange Free State Constitution, having been adopted by a Volksraad (people’s assembly) specially elected for that purpose, was accepted as a supreme law. ²⁴ Although the Volksraad was not supreme it possessed « the highest legislative authority ». ²⁵ Its function was « to make the law, to regulate the government and the finances of the country » .u,
The Volksraad’s legislative power was limited in two respects. In the first place, amendments to the Constitution had to be adopted by a three-quarters majority at three successive annual sittings (later amended to two sittings in 1866). ²⁷ Secondly, there was a guarantee of certain rights, which could not be abrogated by means of ordinary legislation as long the law was not contravened in their exercise. The rights which were guaranteed were the right to peaceful assembly and petition, the right to equality before the law, the right to property and freedom of the press. ²⁸ Although freedom of worship was not precluded, it was restricted in that those who stood for public office had to belong to the ‘Nederlandsche Hervormde Kerk’ .²⁹
Although the legislature was subject to constitutional limitations, no effective machinery existed for the enforcement of these limitations. There was no provision for a trained independent judiciary. Cases were tried by the courts of landdrosts and heemraden; no specific qualifications were required for appointment as judicial officers in these courts. The landdrosts were appointed by the President, subject to the approval of the Volksraad; they could be suspended from office by the President and tried and sentenced for a number of crimes by the Volksraad. ³⁰ The President and the Volksraad could therefore in theory override the constitutional limitations without fear of any effective control by the courts; this, however, rarely happened in practice. Although the independence of the courts was not entrenched in the Constitution, it was recognised and respected.

ACKNOWLEDGEMENTS 
SUMMARY
KEY WORDS
CHAPTER 1 INTRODUCTION 
1. General
2. Purpose and Approach.
3. Theoretical Framework.
CHAPTER 2 CONCEPTUAL PERSPECTIVE
1. The Concept of the State
2. The Doctrine of Parliamentary Sovereignty.
3. The Judiciary
4. Judicial Review of Legislation
CHAPTER 3  HISTORICAL SURVEY OF SOUTH AFRICAN ,CONSTITUTIONAL DEVELOPMENT.
1. Constitutional Development before 1910
2. Constitutional Development from 1910 to 1961
3. The 1961 Constitution
4. The Westminster Tradition in the South African Constitutional System
5. The 1983 Constitution
CHAPTER 4  LEGISLATIVE SUPREMACY AND THE JUDICIARY  IN SOUTH AFRICA PRIOR TO 1994
1. Legislative Supremacy and Judicial Review of Legislation
2. Legislative Supremacy and Judicial Review of Legislation in South Africa before 1994
3. Legislative Supremacy, Legal Positivism and Judicial Control of Legislation
4. Judicial Review of Executive Acts
CHAPTER 5 THE JUDICIARY AND THE SEPARATION OF POWERS 
1. The Principle of the Separation of Powers.
2. Judicial Independence.
3. The Separation of Powers and Judicial Independence under the 1993 Constitution
4. Constitutional Supremacy and the Independence of the Judiciary
CHAPTER 6 A COMPARATIVE SURVEY OF THE ROLE OF THE JUDICIARY IN CANADA 
1. A Brief Constitutional History of Canada
2. Legislative Supremacy and the Judiciary before 1982
3. Judicial Review under the Constitution Act of 1982
CHAPTER 7 THE BOPHUTHATSWANAN EXPERIMENT. 
1. The Constitution of Bophuthatswana
2. The Judiciary and the Declaration of Fundamental Rights.
CHAPTER 8 THE NAMIBIAN EXPERIENCE
1. The Namibian Constitution
2. Judicial Interpretation and Application of the Constitution
CHAPTER 9 THE SOUTH AFRICAN CONSTITUTION OF 1993
1. Introduction
2. The 1993 Constitution.
3. Constitutionalism and the New Constitution.
4. The Jurisdiction of the Courts under the 1993 Constitution
CHAPTER 10 THE ROLE OF THE SOUTH AFRICAN JUDICIARY UNDER THE NEW CONSTITUTION
1. Judicial Review and the « Higher Law » Nature of the New Constitution.
2. Interpreting the New Constitution
3. The Scope of Judicial Review of Constitutionality
4. Judicial Approaches to the Interpretation of the New Constitution
CHAPTER 11 CONCLUSION
GET THE COMPLETE PROJECT
THE ROLE OF THE JUDICIARY IN A MODERN STATE WITH A TRADITION OF LEGISLATIVE SUPREMACY