1st Edition

Lawfare and Judicial Legitimacy The Judicialisation of Politics in the case of South Africa

By Kate Dent Copyright 2024

    Lawfare is a complex and evolving concept with many permutations. It is a term that is used to describe both a judicialisation of politics where the Constitutional Court is called upon to uphold constitutional responsibilities, compensating for institutional failures in the broader democratic space, and instances where there is abuse of the legal process to escape accountability. When the court is dragged into politics, it forces an examination of the legitimate scope of judicial review. This book explains how judicialisation of politics leads to the politicisation of adjudication and further weaponisation of the law. Exploring the judicial-political dynamics of South Africa from 2009 onwards, the work traces the consequences of the judicialisation of politics for institutional resilience and broader constitutional stability. Through an in-depth study of judicial legitimacy, the book seeks to provide an overarching theoretical justification for the dangers that inhere in lawfare. It analyses the potential costs of both judicial statesmanship and strategies of deference and avoidance when trying to navigate the Court safely through the era of lawfare. South Africa offers an interesting crucible within which to observe an unfolding global trend. Strengthened by its comparative focus, the implications of lawfare presented in this book transcend the South African context and are applicable to other jurisdictions in the world. The book will be of interest to researchers, academics and practitioners working in the areas of Constitutional Law and Politics.


    1 Introduction

    Lawfare and its permutations

    Lawfare in the international space

    Lawfare by insurgents

    Lawfare as a tool of authoritarianism

    Lawfare and the judicialisation of politics in South Africa

    Dominant party democracy

    The Constitutional Court’s unsettled role

    This book’s approach

    Constitutional resilience

    2 The multiple dimensions of judicial legitimacy

    Concepts of legitimacy

    Political legitimacy

    Sociological legitimacy

    Legal legitimacy

    Moral legitimacy

    Conflict and interconnections

    Legitimacy and judicial-political dynamics


    3 The judicialisation of politics

    The “political”

    The institutional heritage of the legalisation of politics

    Reasons for judicialisation

    The nature of a Constitutional Court

    Constitutional patriotism

    Constitutional design

    Rights culture

    Administrative justice weaknesses

    Undoing unlawfulness unlawfully

    Abdication and institutional failings

    Institutional power imbalances

    Acquiescence to judicial power

    Making a distinction


    4 Consequences of judicialisation

    Political attack

    Separation of powers, relationships and conversations

    Backlash, curtailment and judicial retreat

    Dominance and dysfunction

    Abusive constitutionalism

    Judicialisation of politics and declining dominance

    Impunified disregard


    5 Politicisation of law: The judicial view

    Judicialisation of politics: effect on the judicial environment

    Enfolding the lower courts

    Judicial appointment

    Acting judges

    Commissions of inquiry

    Pervading influence, depleting responsibility

    Shifting blame


    6 The difficulty in achieving judicial effectiveness in a judicialised climate


    Conditions of effectiveness

    Judicialisation and the political salience of the case

    Clear legal authority

    Division and dissent

    Remedial action in institutional suits

    Authoritative legitimacy


    7 Tracing the legitimacy of intervention strategies

    Operating in hostility

    The formalist response



    Judicial statesmanship, responsiveness and the rule of law

    Judicial review and democratic legitimacy

    Holding public power to account

    The legitimacy of intervention

    The judicial response to lawfare tactics


    8 The Office of the Public Protector and the Court: A wicked problem case study


    The effect of the CC’s Nkandla Judgment

    State capture

    Unintended consequences

    Personal cost orders and a motion of no confidence



    9 Conclusion

    Where things stand

    The South African crucible

    Laws authority

    From “illegitimacy” to legitimacy

    From legitimacy back to illegitimacy

    Judicialisation and identity politics

    The only sure bulwark




    Kate Dent received her doctorate from the School of Law, University of Cape Town, South Africa.

    'The judicialisation of politics carries a risk of weakening the independence of, and public respect for, the judiciary. This book contains a clear and accessible exposition of this important topic. It deserves the urgent attention of all interested in politics and justice in South Africa - both lawyers and laypeople.'

    Richard Goldstone, Former Justice of the Constitutional Court of South Africa 

    'In this work the author conducts the first major analysis of the current "weaponization" of the judiciary. Though her analysis is largely focused on the South African judicial system, Dent applies a comparative approach that is very helpful to readers in the United State, the United Kingdom and elsewhere. In each of these systems political questions are increasingly being presented to judges and political pressures on courts as institutions for resolving extremely difficult political impasse are escalating. The book is highly recommended reading for jurists, lawyers and policy makers.'

    Lawrence Baxter, Distinguished Professor Emeritus, Duke University'

    'Kate Dent’s analysis of lawfare in the judicial setting is extraordinarily original and constitutes an extremely important contribution to the scholarship of this phenomena. Though her discussion is set in the context of the South African judiciary, it has obvious implications for other jurisdictions. I highly recommend her book to anyone wanting to understand how law might be employed in the 21st century.'

                                                          Charles J. Dunlap, Jr., Major General, USAF (Ret.), Executive Director, Center on Law, Ethics and National Security, and Professor of the Practice of Law, Duke University School of Law