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oa Comparative and International Law Journal of Southern Africa - The legitimacy of judicial review in South Africa's new constitutional dispensation : insights from the Canadian experience

 

Abstract

This paper will concentrate on the contentious issue of judicial review under a supreme constitution. South Africa is a newcomer to the world of rights-talk and justiciability of government action. Our past is so devoid of a commitment to civil liberties and individual rights, that an overwhelming amount of faith and hope is placed in the Bill of Rights and our courts for the success of a future South Africa. With these aspirations comes the danger of complacency, and an inability to see our fledgling constitutional supremacy in a critical light.


Given the open-textured structure of the constitution and the enhanced powers of judicial review which judges now possess, our courts face the prospect of acting in a manner which may run contrary to the will of the majority. This counter-majoritarian problem has already been experienced in the greatest constitutional democracies the world over. This paper will attempt to draw insights from critical Canadian scholars who are concerned about the power of Canadian judges under a supreme constitution, and will ultimately focus on examining the most effective means for judges to exercise their power of judicial review in a legitimate manner.

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/content/cilsa/33/2/EJC24602
2000-07-01
2016-12-05
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