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320 Chapter 14
the separation prescribed by the Constitution is not absolute, and on
occasions some overlapping of functions is permissible, action that is
inconsistent with the separation demanded is invalid’. 5
In Ferreira v Levin NO (Ferreira case), Chaskalson P introduced the
concept of pre-eminent domain, 6 which means that while there will be
instances where the functions of the principal organs of the state overlap,
each organ must desist from intruding into a functional area that is preeminently
within the domain of another. Commenting on the various
functions of the principal organs of government, Chaskalson P observed
that ‘at times these functions may overlap. But the terrains are in the main
separate, and should be kept separate.’ 7 In Minister of Health v Treatment
Action Campaign (TAC case), 8 the Constitutional Court affirmed this concept
stating:
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. 9
Within the framework of pre-eminent domain, Chaskalson P observed in
Ferreira that ‘the protection of fundamental freedoms is pre-eminently a
function of the court’. 10
This is an important proposition to which I shall return later in this
discussion. At the same time, however, it is important for there to be a
necessary and critical understanding among these organs that they are organs
of one composite body, the state, and that they need to work in a spirit of
unity and complement one another to achieve the common good of society
as a whole. Though the idea of checks and balances seems on its face to carry
connotations of inherent tension with each organ of the state checking on the
excesses of the other, it is actually a useful and potent mechanism that gives
effect to complementarity. This interplay of roles is essential in maintaining a
constitutional democracy. At the core of constitutional democracy lies the
notion of constitutional supremacy rather than parliamentary (or sometimes
5
Kyalami (n 3 above) para 37. Also on this point, see the cases of Executive Council, of
Western Cape Legislature v President of the Republic of South Africa 1995 4 SA 877 (CC);
1995 10 BCLR 1289 (CC) para 55; Ex-Parte Chairperson of the Assembly, In Re Certification
of the Constitution of Republic of South Africa, 1996 1996 4 SA 744 (CC); 1996 10 BCLR
1253 (CC) para 111; Ex-Parte Speaker of the Western Cape Provincial Legislature: In Re
Certification of the Constitution of the Western Cape, 1997 1997 4 SA 795 (CC); 1997 9 BCLR
1167 (CC) para 63; De Lange v Smuts NO 1998 3 SA 785 (CC); 1998 7 BCLR 779 (CC) para
124; South African Association of Personal Injury Lawyers v Heath 2001 1 SA 883 (CC); 2001 1
BCLR 77 (CC) paras 23 - 26.
6
1996 1 SA 984 (CC) paras 180 - 183.
7 Ferreira (n 6 above) para 183.
8 2002 5 SA 703 (CC).
9
TAC (n 8 above) para 98 (my emphasis).
10 Ferreira (n 6 above) para 183.