Judicial oversight and the constitution: is the South African judiciary overstepping its jurisdiction?

Abstract

The South African government derives its legal existence from the Constitution of the Republic of South Africa, 1996. This Constitution was adopted to end legislative supremacy, state impunity and racial inequality. The same Constitution is underpinned by judicial independence and the rule of law. Its transformative nature is built on the doctrine of separation of powers which divides government power between the legislature, the courts, and the executive. These three branches have equal powers and exercise checks and balances over one another. The judiciary keeps its counterparts within their constitutional mandate through judicial oversight which is mandated by several constitutional provisions. This study investigates whether the judiciary has overstepped its jurisdiction. It traces the historical development of judicial oversight in South Africa and the constitutional principles underpinning it. It examines the need for effective measures that ensure the accountability of the judiciary without undermining its independence. It also analyses the conceptual and practical problems created by an infinite choice of remedies in constitutional adjudication, judicial activism and the counter-majoritarian dilemma. Without derogating the marvellous work done by the judiciary in holding Parliament and the executive to abide by the Constitution, this study finds that the judiciary has overstepped its jurisdiction by failing to have proper regard to the doctrine of separation of powers and the need for constitutional deference and judicial restraint in political matters and policy-laden issues. The judiciary has used its wide powers of oversight to impose judicial supremacy. Several decisions demonstrate that the courts have now upgraded their position to one of supervisor over the whole government machinery. The result has been a floodgate of criticisms from high-ranking political figures in government. This is problematic in that it erodes political support for court decisions and threatens the institutional comity between the courts, Parliament and the executive.