The Extension of the Rights of Refugees and Asylum Seekers Act 22 of 2012 (herein after referred to as the Act) deals with the criteria for orders for immediate deportation. s12(2) of the Act is a violation of the separation of powers and therefore undermines of the lawmaking process and erodes the checks and balances on government power entrenched in the constitution. s12(1) of the Act is a permissible delegation of power as the power is not unfettered and is recognised by the court as necessary for effective implementation of the law.
The doctrine of separation of powers is a model of government, in which in order to control power and delegate functions the government is divided in three organs; the judiciary, the legislature and the judiciary. Firstly the procedural aspect will be dealt with. The constitution vests, in parliament alone, the power to make laws for South Africa in accordance with the procedures set out in the constitution. The separation of powers serves to protect the integrity of the legislative process.
This is because if it is adhered to then the law making functions will remain with the legislature and there is no danger that the procedures will not be followed because some other organ of state or body is making laws. There must be a distinction made between the delegation of power to make subordinate legislation, which is limited through a statute, and delegating complete legislative power to amend and act which is unfettered.
In Executive Council of the Western Cape Legislature v President of South Africait was held that parliament could not delegate complete legislative power to amend acts to the president as this was a violation of the function of separation of powers to protect the integrity of the legislation process entrenched in the constitution and therefore this delegation is unconstitutional . Therefore in the present case it is clear that to delegate complete legislative power as s12(2) of the Act does, violates the function of the separation of powers and undermines the integrity of the law making processes entrenched in the constitution.
This is because s12(2) of the Act delegates to the minister of home affairs complete legislative power to amend the act without prescribing any guideline or limitations, which violates the doctrine of separation of powers and therefore undermines the integrity of the law making process as it allows the minister to legislate according to a different procedure. Therefore s12(2) is unconstitutional. Now the substantive aspect will be dealt with. When looking at the separation of powers from this aspect the purpose of the separation of power is protect the division of power and limit its use.
Although the constitution does not explicitly mention the separation of powers it emanates from the wording and structure and this was recognised in Justice Alliance of South Africa v President of the RSA where the court stated that it recognised “a fundamental premise of the new constitutional text as being a separation of powers between the legislature, executive and the judiciary with appropriate checks and balances to ensure accountability, responsiveness and openness. ”
In this case s12(2) is a clear violation of the separation of powers and erodes the checks and balances inherent in this doctrine, which control use of power. This delegation does not prescribe any objective guidelines or criteria for the minister when changing the criteria, in the Act, for immediate deportation. It is therefore evident that the legislature has yielded its legislative powers, given to them by the constitution, to the executive as this is not just delegation of discretionary power, but delegation of complete legislative power.
The executive derives it power from legislation, if the executive usurps the powers of the legislature as S12(2) purports to do then the checks and balances on power that the separation of powers ensures will be eroded as the executive could effectively give itself power through legislation . s12(2) is unconstitutional as it gives the power, that the constitution gives to the legislature, to the executive and this undermines the separation of powers which is one of the core values of our constitution.
s12(1) delegates discretionary powers to the executive official of home affairs. This type of delegation, when dealing with the separation of powers, is the same as the delegation of lawmaking. This is because although the executive cannot make law they can implement the law as they see fit and both types of delegation can lead to the abdication of the law making process.
In Executive Council of the Western Cape Legislature v President of South Africa the court acknowledged that there is nothing in the constitution which prohibits parliament form delegation subordinate regulatory authority bodies, in fact it was necessary for effective implementation of laws. Therefore the delegation in s12(1) is permissible because there is objective criteria for the official and the minister to follow when considering deportation, this is not a violation of the separation of powers as the legislature has not handed over unfettered discretionary power to the executive and thereby abdicated it’s lawmaking function.
It is therefore also not unconstitutional as it does not violate the power given to the legislature by the constitution or the procedures prescribed. In conclusion s12(2) of the Act is a violation of the separation of powers and therefore undermines of the lawmaking process and erodes the checks and balances on government power entrenched in the constitution. s12(1) is a permissible delegation of power which is recognised by the courts as necessary to facilitate effective implementation of laws.