Draft still under construction: Not to be distributed and cited – use is limited to the SAIFAC ‘Is this Seat Taken’ Colloquium on Sunday, 11 th October, 2009. PULLING BACK THE FRONTIERS OF CONSTITUTIONAL DEFERENCE: MAZIBUKO & OTHERS V CITY OF JOHANNESBURG & OTHERS AND ITS IMPLICATIONS Redson E. Kapindu Deputy Director, SAIFAC 1. INTRODUCTION Separation of powers among various organs of the state, with the concomitant concept of checks and balances as an integral part of its proper understanding, is a precondition for the observance of the rule of law and the effective guarantee of human rights. 1 Seedorf & Sibanda state that the objective of separation of powers is to curtail the exercise of political power to prevent its abuse - meaning the violation of human rights, and that the underlying idea beneath this doctrine is the skeptical assessment that good governance is more likely when political power is distributed among different bodies or authorities. 2 This entails that the various organs of the state must appreciate the scope of their province of authority and responsibility; as well as the provinces of other organs. In Minister of Health and Others v Treatment Action Campaign (TAC case), the Constitutional Court emphasized that: This Court has made it clear on more than one occasion that although there are no bright lines that separate the roles of the legislature, the executive and the courts from one another, there are certain matters that are pre-eminently within the domain of one or other of the arms of government and not the others. All arms of government should be sensitive to and respect this separation. 3 Chaskalson, P (as he then was) observed in Ferreira v Levin NO and others, 4 that ‘at times these functions may overlap. But the terrains are in the main separate, and should be kept separate.’ 5 At the same time however, there is also need for a critical understanding among these organs that they are organs of one body, the state, and that they need to work in tandem, in a spirit of complementarity, to achieve the common good of society as a whole. The idea of checks and balances, though it seems on its face to carry connotations of inherent tension, is actually a useful and potent mechanism that gives effect to such complementarity. This interplay of roles is 1 See R Gargarella et al, ‘Courts, Rights and Social Transformation: Concluding Reflections’ in R Gargarella et al (eds.) Courts and Social Transformation in New Democracies: An Institutional Voice for the Poor? (Ashgate:2006) 260. 2 See S. Seedorf & S Sibanda, Separation of Powers in S Woolman et al (eds.), Constitutional Law of South Africa (2006), 12-1. 3 Para.98. 4 1996 (1) SA 984 (CC) 5 Ibid, para.183.