The possibilities of institutional dialogue in South Africa through weak form judicial review

Abstract

The 1996 Constitution of the Republic of South Africa is the supreme law of the Republic and in enjoying this status it is prescribing the composition of the three different arms of government as well as each branch’s status within the new constitutional dispensation. Prior to this era of constitutional supremacy South Africa was subject to the principle of parliamentary sovereignty, an era where the courts could only challenge legislation on procedural grounds, but had no general power to declare legislation unconstitutional. The Constitution further provides for a separation of powers between these arms of government, and it has vested the judicial authority in the courts and conferred strong judicial review powers upon the Constitutional Court. The head of executive has recently argued that “the powers conferred on the courts cannot be regarded as superior to the powers resulting from a mandate given by the people in a popular vote”. The preceding quote is one of many statements and claims that forms part of a national debate on the nature and scope of the Constitutional Court’s powers in South Africa. The Constitutional Court has in recent years handed down judgments that were not favourable to the legislative and executive arms of the South African government. These judgments are evident in the existing and on-going tension between, the three arms of government.