Reflecting on the tension between the development of the common law and the doctrine of separation of powers in Paulsen v Slip Knot Investments 777 (Pty) Ltd

This article analyses the adjudicative approaches adopted by the main judgment of Madlanga J and the concurring majority judgment of Moseneke DCJ in Paulsen & another v Slip Knot Investments 777 (Pty) Ltd 2015 (3) SA 479 (CC). The point of divergence between the judgments concerns the discordant relationship between the doctrine of separation of powers and the powers of the courts to develop the common law under s 39(2) of the Constitution. The argument developed in this article is that the developmental powers of the courts should not be curtailed on the basis of a broadly and vaguely conceptualised doctrine of separation of powers, but on a clear and circumscribed doctrine that is congruent with the transformative objectives of s 39(2) of the Constitution. The article endeavours to set out the limited circumstances under which the developmental powers of the courts should be limited in terms of the doctrine of separation of powers.