1st Edition
Separation of Powers, the Judiciary and the Politics of Constitutional Adjudication
Over the last 25 years, the doctrine of separation of powers has been established as both a foundational value and a structural principle applied by the courts in interpreting the relationship between South Africa’s constitutional structures. Jurisprudentially, the practicalities and contours of how, when and by whom the separation of powers should be determined has proven to be controversial. Therefore, the past decade has been characterised by heightened political contestation, often resulting in extensive litigation posing thorny political issues. This has had profound implications for the judiciary and raised difficult questions on the very nature of South African constitutionalism.
These political contestations gathered even greater momentum and urgency during the early days of COVID-19 in 2020, when the first iteration of this book was produced as a special issue of the South African Journal on Human Rights. This timely volume brings together critical reflections on developments in South Africa’s separation of powers jurisprudence and theory, the role and function of the judiciary through its judgments in shaping the landscape of constitutional politics, as well the implications of this for the consolidation of South Africa’s democratic constitutional project. It makes an important contribution to the debate on the politics of constitutional adjudication in light of the doctrine of separation of powers. This book will be of interest to researchers and advanced students of politics, history, law and legal theory, human rights, and African studies.
1. Introduction
Sanele Sibanda
2. Separation of powers and the institutional supremacy of the Constitutional Court over Parliament and the executive
Felix Dube
3. The judicialisation of politics in South Africa: A critique of the emerging trend
Hoolo Nyane
4. Esoteric decision-making: Judicial responses to the judicialisation of politics, the Constitutional Court and EFF II
Lauren Gildenhuys
5. Are judicial monitoring institutions a legitimate remedy for addressing systemic socioeconomic rights violations?
Ropafadzo Maphosa
6. Designing remedies for a recalcitrant administration
Gaurav Mukherjee and Juha Tuovinen
Biography
Sanele Sibanda is a senior lecturer in the Department of Jurisprudence, University of Pretoria, South Africa. He is a critical scholar in the areas of constitutionalism, jurisprudence, constitutional law and theory, and Indigenous law. He is an editor of the South African Journal of Human Rights. He holds a PhD degree from the University of the Witwatersrand.
