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Indeed, the overlap provides a singularly important check and balance on the exercise of executive power. It makes the executive more directly answerable to the elected legislature.


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In terms of NT 92 3 b , Cabinet members are compelled to provide Parliament with full and regular reports concerning matters under their control. And finally, the legislature has the power to remove the President and indirectly the Cabinet which is presidentially appointed under NT The model adopted reflects the historical circumstances of our constitutional development.

We find in the NT checks and balances that evidence a concern for both the over-concentration of power and the requirement of an energetic and effective, yet answerable, executive. A strict separation of powers has not always been maintained; 9 [1] but there is nothing to suggest that the CPs imposed upon the CA an obligation to adopt a particular form of strict separation, such as that found in the United States of America, France or the Netherlands. It does not prescribe what form that separation should take.

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We have previously said that the CPs must not be interpreted with technical rigidity. The objection argued on behalf of the objectors concerns the power given to the President in terms of NT 84 2 j. NT 84 provides in part:. The basis of the objection is, first, that the exercise of the power is not constrained by any constitutional or common law procedures, or any substantive constitutional criteria or rules, and that no reasons need be given for its exercise or for any refusal to exercise the power. It was contended that the power therefore detracts from the requirements of CP IV, which proclaims the supremacy of the Constitution.

Second, it was argued that the responsibility entrusted to the President is an executive and not a judicial power, yet its exercise encroaches upon the judicial terrain and in fact overrules or negates judicial decisions in violation of both the separation of powers requirement of CP IV and the provisions pertaining to judicial functions in CP VII. It does not, however, follow that the power given in NT 84 2 j is identical in all respects to the ancient royal prerogatives.

Regardless of the historical origins of the concept, the President derives this power not from antiquity but from the NT itself. It is that Constitution that proclaims its own supremacy. It has never been part of the general functions of the court to pardon and reprieve offenders after justice has run its course.


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  4. The function itself is one that is ordinarily entrusted to the head of state in many national constitutions, including in countries where the constitution is supreme 9 [5] and where the doctrine of separation of powers is strictly observed. We now proceed to deal with each of these matters. The President is required to do this after consulting the profession concerned and is also required to consult the JSC before appointing the Chief Justice, 9 [9] and the JSC and the leaders of parties represented in the NA before appointing the President of the Constitutional Court.

    These are objective criteria subject to constitutional control by the courts, and meet the requirements of CP VII in that regard. The CPs do not, however, require a JSC to be established and contain no provision dealing specifically with the appointment of judges. The mere fact, however, that the executive makes or participates in the appointment of judges is not inconsistent with the doctrine of separation of powers or with the judicial independence required by CP VII. In many countries in which there is an independent judiciary and a separation of powers, judicial appointments are made either by the executive or by Parliament or by both.

    NT is directed to this end. It vests the judicial authority in the courts and protects the courts against any interference with that authority. Constitutionally, therefore, all judges are independent. The JSC contains significant representation from the judiciary, the legal professions and political parties of the opposition.

    It participates in the appointment of the Chief Justice, the President of the Constitutional Court and the Constitutional Court judges, and it selects the judges of all other courts.

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    As an institution it provides a broadly based selection panel for appointments to the judiciary and provides a check and balance to the power of the executive to make such appointments. In the absence of any obligation to establish such a body, the fact that it could have been constituted differently, with greater representation being given to the legal profession and the judiciary, is irrelevant. Its composition was a political choice which has been made by the CA within the framework of the CPs. We cannot interfere with that decision, and in the circumstances the objection to NT must be rejected.

    Acting Judges [] Objections were raised in respect of the provisions of the NT dealing with the appointment of acting judges. They were to the effect that. We have dealt in paragraphs of this judgment with the reasons for this conclusion. Such appointments are made to fill temporary vacancies which occur between meetings of the JSC, or when judges go on long leave, are ill or are appointed to preside over a commission. These appointments are necessary to ensure that the work of the courts is not disrupted by temporary vacancies or the temporary absence or disability of particular judges.

    If the appointment of acting and permanent judges were to be at the discretion of the Minister there would be concern on this score. But this is not the case. Acting appointments are essentially temporary appointments for temporary purposes. The JSC is an independent body.

    If there is a vacancy in a court the JSC is under a duty to fill it. It may no doubt delay or defer an appointment until a suitable candidate is identified, but it should not be assumed that it will abdicate its responsibility by allowing permanent vacancies to be filled indefinitely by acting judges. Acting appointments provide it with a valuable opportunity for assessing the qualities of potential judges. The use of part-time judges has become a feature of the court system in England, which is a country always associated with an independent judiciary.

    The JSC is a large body and there are practical reasons why a meeting of the JSC cannot be convened whenever the need arises for such an appointment to be made. It was contended, however, that NT confers too much power on the Minister and that the necessary checks and balances on the exercise of such power are lacking. NT 1 requires such appointments to be made by the President on the recommendation of the Minister acting with the concurrence of the President of the Constitutional Court and the Chief Justice. All three are members of the JSC and the requirement that there be agreement between them as to the person to be appointed meets any reasonable concern that the power of appointing an acting Constitutional Court judge might be abused.

    The constitutional requirement that such consultation take place is a formalisation of a constitutional convention followed in many Commonwealth countries in which the judiciary is regarded as independent. It leaves the final decision to the Minister but requires the decision to be taken in good faith with due regard to the advice given. An acting judge is protected by the provisions of NT and sits only in cases assigned by the senior judge of the court.

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    The Minister therefore has no control over the cases that such person will hear, and is precluded by NT from interfering in any way with the discharge by the acting judge of his or her duties. There is no equivalent in the NT to IC which provides for the establishment of a Magistrates Commission, as follows:. The independence of all courts is guaranteed by NT Such legislation will be subject to constitutional control, and if it undermines the independence and impartiality of the courts, which are specifically protected in terms of NT , it will not be valid.

    CP V requires that the legal system ensures the equality of all before the law and an equitable legal process.

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    By preventing the magistrates from enquiring into or ruling on the constitutionality of any legislation, however subordinate, in the course of criminal or civil proceedings otherwise within their jurisdiction, it was argued, the NT precludes the majority of South African courts from safeguarding and enforcing the NT where legislation or the conduct of the President is under scrutiny.

    The mere fact that some, but not all, courts have jurisdiction to decide constitutional issues does not mean that CP VII has not been complied with. The fact that such a decision was taken does not mean that the judiciary lacks the jurisdiction to safeguard and enforce the Constitution and all fundamental rights.

    The Prosecuting Authority [] Objection was taken to NT which makes provision for a single national prosecuting authority consisting of a National Director of Public Prosecutions, Directors of Public Prosecutions and prosecutors. In terms of NT 2 , the prosecuting authority has the power to institute criminal proceedings on behalf of the state. NT 5 provides that the National Director of Public Prosecutions is vested with powers which include the determination of prosecution policy, the issuing of policy directives which have to be observed in the prosecution process, the power to intervene in the prosecution process when policy directives are not complied with and the ability to review a decision to prosecute or not to prosecute.

    The objection was based primarily on the fact that, in terms of NT 1 , the National Director of Public Prosecutions is appointed by the President as head of the national executive. There is no substance in this contention. The prosecuting authority is not part of the judiciary and CP VI has no application to it. In any event, even if it were part of the judiciary, the mere fact that the appointment of the head of the national prosecuting authority is made by the President does not in itself contravene the doctrine of separation of powers.

    The Attorney-General is a political appointment and holds office at the discretion of the President without any security of tenure. The Prosecutor-General is appointed by the President on the recommendation of the Judicial Service Commission and under the Constitution is vested with the power to prosecute in the name of the Republic of Namibia.

    The Court had to construe the Constitution and determine whether the Prosecutor-General was subject to the instructions of the Attorney-General. It concluded that he was not. It was said that. The decision as to the model to be adopted for the prosecuting authority in the NT is not prescribed by the CPs and was a decision to be taken by the CA.

    If that decision complies with the requirements of the CPs we have no power to set it aside. There is accordingly a constitutional guarantee of independence, and any legislation or executive action inconsistent therewith would be subject to constitutional control by the courts. In the circumstances, the objection to NT must be rejected.

    The objections are, in our view, ill-conceived and overlook the fact that the provisions of NT c merely permit the participation of lay people in the decisions of the courts, but do not provide for the appointment of such people as, or in place of, judicial officers. The use of lay people as jurors and assessors is a well-established practice in many parts of the world. The implementation of NT c , and the method of appointment, role and functions of assessors and such lay people, would be determined by legislation.

    If it were to interfere with the integrity of judicial authority that would be subject to constitutional control. NT 1 [] NT 1 provides that the provisions of the LRA shall, despite the provisions of the Constitution, remain valid until they are amended or repealed. The purpose of NT 1 seems clear. The provisions of the LRA are to remain valid and not to be subject to constitutional review until they are amended or repealed. This section is in conflict with the CPs.

    If that route is followed, the provisions must comply with the CPs and must be subject to amendment by special procedures as contemplated by CP XV. This is not the route adopted in NT 1.

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    If this were not the case, the CA would have been entitled to shield any number of statutes from constitutional review. This could not have been the intention of the drafters of the CPs. NT 1 clearly intends to protect the provisions of the LRA from constitutional review without making it part of the Constitution. The section is not in compliance with the CPs. NT sch 6 s 22 1 [] NT sch 6 s 22 1 b provides that the provisions of the Promotion of National Unity and Reconciliation Act 34 of , as amended, 10 [7] are valid.

    Although this is a slightly different formulation from that adopted in NT 1 , it nevertheless seeks to achieve the same goal, exempting the named statute from constitutional review.