oa Constitutional Court Review - Pushing the boundaries : judicial review of legislative procedures in South Africa

Volume 9 Number 1
  • ISSN : 2073-6215
  • E-ISSN: 2521-5183



In recent years, the South African Constitutional Court has dramatically shed the general reluctance it had shared with most courts around the world to review legislative processes as distinct from outcomes. In a series of graduated steps culminating in two 2017 cases, the Court has engaged in increasingly robust oversight of various types of legislative procedures. These processes embrace not only the law-making process itself, but also internal National Assembly rules, especially those relating to the National Assembly’s other central function in a parliamentary democracy of holding the executive politically accountable. The article begins with a brief discussion of the background norm of non-intervention in legislative procedures from which the Court has progressively and so notably departed. It then charts the three steps by which this departure has come about, showing how each of them marks a new stage in the degree of judicial supervision. The heart of the article explores whether the Court was justified in taking these steps or was guilty of overreaching. It argues that, although a certain general tension between the separation of powers and rule of law underlies the background norm of judicial non-intervention, in the specific contexts in which these cases were decided, these two values increasingly came together. Indeed, far from violating separation of powers, the Court promoted it when overly concentrated legislative-executive power threatened impunity. Systemic weaknesses of executive political accountability that arises not merely from the existence but the abuse of dominant party status called for novel remedies of the type employed by the Court.

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