NGCOBO J
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.”135
(Footnote omitted.)
Courts too must observe the constitutional limits of their
authority. Thus, in Doctors for Life we emphasised that:
“The constitutional principle of separation of powers requires that other branches of
government refrain from interfering in parliamentary proceedings. This principle is
not simply an abstract notion; it is reflected in the very structure of our government.
The structure of the provisions entrusting and separating powers between the
legislative, executive and judicial branches reflects the concept of separation of
powers. The principle ‘has important consequences for the way in which and the
institutions by which power can be exercised’. Courts must be conscious of the vital
limits on judicial authority and the Constitution’s design to leave certain matters to
other branches of government. They too must observe the constitutional limits of
their authority. This means that the Judiciary should not interfere in the processes of
other branches of government unless to do so is mandated by the Constitution.”136
[182] It is unquestionably the constitutional province of the executive to develop and
implement policy.137
Consistently with this, section 62 of the Sexual Offences
Amendment Act requires the Minister to adopt the NPF, among other things, “to guide
the implementation, enforcement and administration of the Act.”138 The NPF must be
135
Minister of Health and Others v Treatment Action Campaign and Others (No. 2) [2002] ZACC 15; 2002 (10)
BCLR 1033 (CC); 2002 (5) SA 721 (CC) at para 98; Doctors for Life above n 36 at para 199 and 1462E-F.
136
Doctors for Life above n 36 at para 39 and 1417C-E.
137
Section 85(2)(b) of the Constitution provides:
“(2)
The President exercises the executive authority, together with the other members of
the Cabinet, by—
(b)
138
developing and implementing national policy.”
Section 62(1)(b) provides:
“(1)
The Minister must, after consultation with the cabinet members responsible for safety
and security, correctional services, social development and health and the National
Director of Public Prosecutions, adopt a national policy framework, relating to all
matters dealt with in this Act, to—
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