LAW
THE+SEPARATION+OF+POWERS.docx

The glenister case relates to the disbanding of the

Info icon This preview shows pages 2–3. Sign up to view the full content.

The Glenister case relates to the disbanding of the Scorpions and the creation of the Hawks through the enactment of the National Prosecuting Authority Amendment Act and the South African Police Service Amendment Act, which were both declared unconstitutional for the fact that the Hawks were not sufficiently independent and that the state had therefore failed to comply with its obligations to respect, protect, promote and fulfill the rights in the Bill of Rights as required by section 7(2) of the Constitution. The Constitutional Court therefore held that what was required was to create an anti-corruption unit with the necessary independence to be protected from potential political pressure. This meant that the state could not create a body that it claimed was independent but that did not appear independent to the reasonable member of the public. Secondly, such a body had to be insulated from “a degree of management by political actors that threatens imminently to stifle the independent functioning and operations of the unit” (although this did not mean that such a body had to be insulated from political accountability) and thirdly, the Hawks are “ordinary” police officials who enjoyed little if any special job security, which severely undermines their independence. Fourthly (and most importantly), there was the risk of political and executive influence over the Hawks because a Ministerial Committee, composed of at least the Ministers for Police, Finance, Home Affairs, Intelligence and Justice are required to determine policy guidelines in respect of the functioning of the Hawks (and quite possibly, therefore, decide which cases should or should not be investigated by the Hawks (think here of the cases against Jackie Selebi; Bheki Cele, etc. which had been successfully investigated and prosecuted by the Scorpions)). The result of all of this is that the judiciary did not re-write the law to create an independent crime-fighting institution. Instead, it left that up to the legislature to create a completely new institution with far more safeguards to secure its independence. Another possible example to illustrate how the separation of powers doctrine operates in South Africa is the case of Fourie v Minister of Home Affairs and Another (in conjunction with the Lesbian and Gay Equality Project case) (discussed from page 370 onwards in the textbook). Please note that even though the Fourie case is not discussed within the first 8 chapters of the book (which is what you are required to study for CSL2601), what I am hoping you will learn is how to analyse cases within the paradigm of the separation of powers doctrine. In the Fourie case, Ms Marié Fourie and Ms Cecelia Bonthuys argued that the law excluded them from publicly celebrating their love and commitment to each other in marriage. They contend that the exclusion comes from the common law definition of marriage which states that “marriage in South Africa is a union of one man with one woman, to the exclusion, while it lasts, of all others”. The case raised the question whether the fact that no provision is made
Image of page 2

Info icon This preview has intentionally blurred sections. Sign up to view the full version.

Image of page 3
This is the end of the preview. Sign up to access the rest of the document.

{[ snackBarMessage ]}

What students are saying

  • Left Quote Icon

    As a current student on this bumpy collegiate pathway, I stumbled upon Course Hero, where I can find study resources for nearly all my courses, get online help from tutors 24/7, and even share my old projects, papers, and lecture notes with other students.

    Student Picture

    Kiran Temple University Fox School of Business ‘17, Course Hero Intern

  • Left Quote Icon

    I cannot even describe how much Course Hero helped me this summer. It’s truly become something I can always rely on and help me. In the end, I was not only able to survive summer classes, but I was able to thrive thanks to Course Hero.

    Student Picture

    Dana University of Pennsylvania ‘17, Course Hero Intern

  • Left Quote Icon

    The ability to access any university’s resources through Course Hero proved invaluable in my case. I was behind on Tulane coursework and actually used UCLA’s materials to help me move forward and get everything together on time.

    Student Picture

    Jill Tulane University ‘16, Course Hero Intern