[Please cite / quote accordingly given the originality of this Work]
“ABSTRACT
This Thesis is fundamentally about the evolution of the separation of powers to attain accountable, integral, and thus good governance in complex contemporary times. It presents a rigorous, timely and novel, ‘scientific’ study of three interrelated legal-political phenomena playing out in the South African context, but which nonetheless have global resonance. Indeed, the legal problems and solutions espoused in this Thesis may contribute positively to international efforts to curb democratic decay and, relatedly, the corrosion of constitutionalism in other parts of the world.
The first phenomenon is the staggering increase of systemic corruption, particularly that which permeates the public sector. In South Africa, this has manifested on a mammoth scale and has thus come to be known as ‘state capture’. Such corruption impedes the state’s ability to deliver on its constitutional mandate to act positively and effectively to ensure good governance in the public interest. The South African tale reveals that when a state is captured it no longer serves the people on whose behalf it governs. This is an affront to the principles of constitutionalism and the need to ensure nation-building, sustainable development and human-rights realisation. Ultimately, egregious corruption causes deep-seated conflict between state and citizen whose well-being, dignity, and hence ability to live a secure, peaceful and fulfilling existence, is thereby diminished.
In South Africa, the state capture spearheaded by former President Jacob Zuma and his coterie of private businessmen, the Gupta brothers, rendered the legislature supine and ineffective and the executive exceedingly powerful and, ultimately, self-serving. To this end, these state institutions failed to fulfil the core goals of the separation of powers – a doctrine that impliedly infuses the South African Constitution. The first goal of this doctrine is liberty protection and hence human-rights realisation through, among others, checking and balancing by the state apparatus. The second goal is that of ensuring efficient and effective governance for the people, with the right state institutions doing the right work in the right way. That is to say, in a manner congruent with the constitutional values which constitute the state’s public-interest compass.
State capture entailed a devastating failure by the legislature and the executive to attain these two basic goals of the separation of powers such that a culture of impunity was enabled and entrenched. However, as this Thesis seeks to illustrate, the failures of the ‘democratic’ branches of state cannot be equated with a failure of the South African state as a whole. Nor does the malfunctioning of the legislature and executive mean that the separation of powers – in particular, its Madisonian requirement of checks and balances – is non-existent in South Africa.
This raises the second phenomenon explored in this Thesis: the operational rise of a reconfigured model of the separation of powers in South Africa. This phenomenon is considered with reference to two particular case studies catalysed, in part, by revelations contained in the ‘Report of the Judicial Commission of Inquiry into State Capture in South Africa’ (‘the Zondo Commission’). These case studies have not yet been meaningfully explored through the lens of the separation of powers in academic literature and this Thesis fills that lacuna. The case studies pertain to the role of the National Prosecuting Authority and that of certain Commissions of Inquiry – in the nature of the Zondo Commission – within the modern South African state that is so desperately in need of enhanced integrity and accountability.
These studies are underpinned by a legal analysis that reveals a South African version of the separation of powers that relinquishes the anachronistic trias politica and embraces a fourth branch of state with a vital role in ensuring, among others, corruption redress and prevention. To this end, this Thesis helps theory catch up with practice and, in so doing, lays a solid doctrinal foundation to enable and bolster the role of, and respect for, the fourth-branch bodies in South Africa – and perhaps, further afield too. This Thesis thus adds to the growing international body of academic literature on the increasingly important, but still somewhat nascent, legal subject of the fourth branch of state. In the South African context, as this Thesis shows, the fourth branch is best described as the ‘Integrity and Accountability (I&A) Branch’. The state institutions falling under this branch all have roles to play in ensuring the integral and accountable exercise of public power, which in turn furthers human-rights realisation, social justice and restorative, as well as retributive, justice. Integrity and accountability are strong corruption prophylactics and antidotes. An original, coherent and theoretically-compelling unifying theory for the grouping of these South African fourth-branch institutions, under the rubric of ‘Integrity and Accountability’, is thus propounded in this Thesis. This is done against the backdrop of a guiding conceptual framework that informs and infuses the various, but related, research questions addressed in this Thesis.
This conceptual framework summarises aspects of the constitutional vision of the South African state, and the model of constitutionalism – including a particular calibration of the separation of powers – that underpins it. Drawing on the work of Barber, it is explained that this model comprises not only a negative (restraining) component, but also a strong positive (empowering) component. In short, South African constitutionalism requires both institutional comity – and the requisite institutional self-restraint – as well as appropriate empowerment on the part of all the branches of state, including the fourth branch, which should thus be capacitated, empowered, recognised and respected as such. Such an understanding of South African constitutionalism advances the collective constitutional endeavour, on the part of all four branches of state, to serve the public interest, and timeously so. The public interest cannot be served unless the norms of public accountability and integrity are given meaning and life in the daily operation of the state as a whole. These guiding norms – which, as noted, provide the most suitable descriptive rubric for the South African Fourth Branch – are thus briefly elucidated in this Thesis’s conceptual framework, and in turn guide and focus the reader throughout this Thesis’s trajectory. Indeed, the articulation of the norms of accountability and integrity is, in a sense, a golden thread that weaves together the constituent parts of this scholarly Work.
In so animating, and justifying, the rise and role of South Africa’s distinctive I&A Fourth Branch, the norms of public accountability and integrity necessitate consideration of a third phenomenon; namely the stretching of the judicial role within the separation of powers to fill the accountability vacuum left by the ‘political’ arms of state. As this Thesis argues, the judiciary is not, and should not, be the only key ‘checker and balancer of political power’, and it too must ensure an appropriate equilibrium between empowerment and restraint. Through a rigorous, critical, yet balanced, analysis of two seminal majority judgments of South Africa’s apex Constitutional Court, this Thesis explores the phenomenon of what it describes as ‘judicial adventurism’ – necessitated by the need to combat egregious corruption and maladministration – and its attendant virtues and vices. In so doing, this Thesis advances an innovative, and carefully justified, proposal for two constitutional amendments. These amendments should free up space for the strained judiciary within the separation of powers and bolster the role, and respect, for South Africa’s I&A Fourth Branch.
Through a mix of realism, coupled with a dose of idealism, the arguments, theorisations, and proposals made in this scholarly Work aim not only to advance original ‘scientific’ contributions to knowledge in the intersecting fields of law and policy under discussion. This Thesis also – in and of itself – provides a practically valuable contribution to the collective, constitutional mission to prevent and redress corruption. This Thesis is thus an academic manifestation of the kind of public ‘social accountability’ espoused in its conceptual framework – it is an effort at ‘reform from below’. Therefore, while this PhD’s primary objective is to serve as timely, scholarly (scientific) contribution to knowledge, this is not its sole objective (or ‘end’); nor is this Thesis an ‘end’ in and of itself. Rather, through its layered analyses, and resultant proposals for reform, this Thesis propounds principled and pragmatic ‘means’ to achieve particular, concrete ‘ends’; namely, implementable measures to combat corruption. Ultimately, it is shown that this socio-legal objective is already being attained, with state-capture reforms finally underway in South Africa along the lines proposed in the first published doctoral article. In short, this Thesis’s analyses and its development of legal institutional theories are undertaken much in the spirit of Dewey and Selznick – that is to say, with a view to ensuring that the norms, theorisations, and ideas developed herein are reflective of, responsive to, and thus operational within, the ‘real world’ – for this is where they really matter.
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