The separation of powers in the Constitution means the government’s functions and powers are split into 3 branches. These branches each perform a separate function and are independent of each other. The purpose of this is so that they keep a check on each other. Separation of powers is an important part of democracy because it prevents any elected official or government body from abusing its powers. The

3 branches are:

• The legislature (parliament) which makes the laws
• The executive (cabinet) which enforces (carries out) the laws and
• The judiciary that interprets the laws

THE LEGISLATURE

The national legislature is called parliament. Parliament makes new laws and changes old laws for the whole country. It is made up of the National Assembly and the National Council of Provinces. Both of these bodies are responsible for making laws.

Each province also has a legislature called a provincial legislature, which makes laws for each province.

The legislatures at national and provincial level are elected by citizens in national and provincial elections every five years.

THE EXECUTIVE

The national executive is made up of the president, the vice-president and the cabinet. The national executive is responsible for carrying out the laws, in other words, for putting the laws written by the legislature into action.

The cabinet is made up of ministers (such as the minister of health) who are appointed by the president. Each minister governs a department with public servants doing the administration.

The ministers cannot make their own laws although they can draft new laws or change old laws and ask parliament to pass these. Ministers must make sure that the policies of the government are implemented. Parliament can also ask ministers to explain why they are carrying out policy in a particular way. They report to parliament every year and their budgets are approved by parliament. In this way the executive is accountable to the legislature.

Each province also has its executive. The provincial executives are made up of a premier and members of an executive council appointed by the premier.

THE JUDICIARY

The judiciary is made up of courts, judges and magistrates. They make decisions in cases that are referred to the courts based on the laws made by the legislature and carried out by the executive. These decisions then help to define how laws should be applied. The courts also ensure that laws made by the legislature do not go against the Constitution. The Constitutional Court has the power to declare a law invalid if the judges find that it goes against the Constitution. In this way, the judiciary acts as a watchdog over the legislature and the executive – and holds them accountable to the Constitution and the laws they have passed.

People can take cases to court if they believe the actions of the executive go against the law or the Constitution. In this way, the courts act as a check on the work of the executive.

The judiciary must be independent of the executive and the legislature. In this way it can make fair decisions, even if this goes against what the legislature and executive want. Cases are often between different spheres of government, e.g. a municipality and a province. The judiciary interprets the law only and must apply it neutrally. An independent body called the Judicial Services Commission appoints judges, so these judges are independent of the government in power.

EXAMPLE

1. Parliament (the legislature) writes a new law that says all children at school must get a free meal. The minister of education (the executive) gives the education department instructions to carry out the new law. But when Thokozile goes to school she doesn’t get a free lunch. The school refuses to give a free meal to any of the students. Thokozile’s father and mother go to court to demand that the school give the students lunch. The court tells the school to do this because this is what the law says.
2. Parliament (the legislature) passes a law that says doctors who are Rastafarians cannot work in state hospitals. The Department of Health (the executive) gives instructions to all hospitals to dismiss all Rastafarian doctors. These doctors go to court and say that this law is invalid because it discriminates against people on grounds of their religion, and it goes against their rights in the Constitution. The court agrees with the doctors and declares the law invalid.