Critics Of South Africa’s Judges Are Raising The Temperature: Legitimate Or Dangerous?

Hugh Corder, University of Cape Town

The South African judiciary is once more centre stage in the political drama unfolding around the battle for supremacy within the governing African National Congress (ANC).

In any constitutional democracy worth the name, the judiciary will be the ultimate guarantor of the rule of law and the supremacy of the Constitution.

If the judges act independently and impartially (as prescribed in section 165 of South Africa’s Constitution), their judgments will inevitably, on occasion, displease party politicians and members of the Executive.

And when the political process increasingly frustrates the enforcement and implementation of the Constitution, politicians and civil society will turn to the courts to seek endorsement of their concerns.

These actions, now known as in South Africa as a form of “lawfare,” frequently place the courts in an awkward position. That’s because they have to rule on emotive political questions. But, provided