Is the ambit of judicial review in South Africa properly guarded to ensure that judges do not (ab)use it to the extent of replacing constitutional supremacy with judicial supremacy?

Abstract

“Ours is a constitutional democracy, not a judiciocracy”, so said Chief Justice Mogoeng Mogoeng in Electronic Media Network Limited and Others v e.tv (Pty) Limited and Others [2017 (9) BCLR 1108 (CC) para 1]. Not one of the three arms of government, namely, the legislature, executive and judiciary, is supreme in relation to the others. Instead, the Constitution is supreme and each of the three arms of government has exclusive jurisdiction in its constitutionally ordained domain. Their powers are separated, conferred, and protected by the Constitution, subject to the principle of checks and balances. However, not all the stakeholders in the South African legal discourse appreciate or even believe in the practical value of this separation of powers. To the contrary, and alarmingly, there has, in the recent past, been an increase in the number of claims that the judiciary considers itself supreme. On 15 May 2017, for example, approximately over 1000 ANC supporters marched through the streets of Durban behind a banner bearing a rhetorical question: ‘who runs SA: courts or executive?’ The general concern appears to be that judges are seemingly (ab)using their judicial review powers to replace constitutional supremacy with judicial supremacy.The aim of this dissertation is to question the validity of this concern. First, the dissertation will explain the difference between the constitutional and judicial supremacy regimes, with the view to demonstrate why a replacement of the constitutional supremacy regime in the South African legal system with the judicial supremacy regime by the judiciary would be inappropriate. This would explain why the concerns of judicial overreach, if valid, would be justified. Second, the dissertation will discuss judicial review, with the view to explain the perceived power of the judiciary over the other branches of government. Third, and as the crux of the dissertation, will be the discussion of a number of factors and considerations that come into play when judges adjudicate. This will demonstrate that, whilst theoretically possible, judicial supremacy is not something that judges can simply implement on a whim. The dissertation will cast doubt on the validity of claims that judges are (ab)using judicial review to replace constitutional supremacy with judicial supremacy.