Abstract:
In this dissertation it is argued that a number of recent judgments of the Constitutional Court within the last decade have fallen short of sustaining the integrity of the Constitution. This is a consequence of an inadequate conceptual framework for the adjudication of politically sensitive disputes within the context of one party dominant democracy that has been established in South Africa over the past two decades. One-party domination is a consequence of the democratic will of the (vast) majority of the electorate and should, as such, be respected. At the same time, however, it might have, and in South Africa arguably does have, a collection of legal and socio-political implications that impact the outcome of politically sensitive litigation to the extent that the principles of constitutionalism are bound to be imperilled. The courts, and more particularly the Constitutional Court, should be alive to the possible detrimental impact of one-party domination. Thus, it is suggested that they should follow an approach that fends off that risk. In this discussion it is argued that the judgments in South African Police Service v Solidarity (obo Barnard) 2014 (6) SA 123 (CC) and Agri South Africa v Minister for Minerals and Energy 2013 (4) SA 1 (CC) are, in part, manifestations of the negative impact of one-party domination on the Constitutional Court?s jurisprudence and on the principle of constitutionalism. These cases could have used an appropriate conceptual framework that simultaneously accounted for and averted the negative effects of one-party domination. These two decisions will be scrutinised to illuminate the manifestation of this conceptual flaw. With specific reference to the argumentation advanced by Sujit Choudhry in his article ?He had a mandate: the South African Constitutional Court and the African National Congress in a dominant democracy? Constitutional Court Review 2009 (2) 1-86 the discussion will then harness an adjudicatory framework that the Constitutional Court is implored to adopt, particularly where the matters before it are politically sensitive. A significant aspect of this adjudicatory framework will assist the Constitutional Court to factor the role played by dominant democracy in the potential outcome of the case before it and thus to effectively sustain the principle of constitutionalism.
