THE SEPARATION OF POWERS AND THE NON-DELEGATION DOCTRINE In re Constitutionality of the Mpumalanga Petitions Bills, 2000 2000 1 SA 447 (CC); 2001 11 BCLR 1126 (CC)

Abstract

The modern concept of separation of powers was first introduced by Charles Louis de Secondat, Baron de la Bréde et de Montesquieu (1689-1755), in his well-known work L’Esprit des Loix (1748). Since then this concept has developed into a doctrine made up of four basic principles, one of which is the principle of separation of functions (the other three being: the principle of trias politica; the principle of separation of personnel; and the principle of checks and balances – see Van der Vyver “Separation of Powers” 1995 SAPL 177).
The principle of separation of functions – which provides that each branch of state may only exercise those powers which have been entrusted to it – gives rise to many complex issues. One of these is the extent to which the legislative branch may validly delegate lawmaking powers to another body or person. This issue has been considered by the Constitutional Court on a number of occasions, most recently in the case In re Constitutionality of the Mpumalanga Petitions Bill, 2000 (2002 1 SA 447 (CC); 2001 11 BCLR 1126 (CC)).
This judgment is particularly interesting because it deals not only with the type of legislative power which may be validly delegated to another body or person – which was the focus in the Constitutional Court’s previous judgments on the issue – but also with the sorts of bodies or persons to whom legislative power may be validly delegated.
Besides dealing with the sorts of bodies or persons to whom legislative power may validly be delegated, the judgment also clarifies a number of issues relating to the referral of a bill to the Constitutional Court by the president (or a provincial premier) in terms of section 79 (or s 121) of the Constitution.