The ebb and flow of the application of the principle of subsidiarity – critical reflections on Motau and My Vote Counts

Abstract

Under the current constitutional dispensation the judiciary is not only constitutionally authorised, but also constitutionally obliged, to oversee exercises of public power; including the conduct of the executive.1 It does so through judicial review. In judicial review proceedings, courts must follow a principled and justified approach to choosing the appropriate standards on a possible ‘continuum of constitutional accountability’ against which impugned exercises of public power should be measured. This is what is demanded by the separationof- powers doctrine: courts ought not to invoke legal norms formalistically or arbitrarily when reviewing public power.