In South Africa, a nascent constitutional democracy, politics have migrated to the courtroom. South African courts, especially the Constitutional Court, have adjudicated political controversies under the guise of vindicating the Constitution and the rule of law, and fostering a culture of accountability, which has led to the steady judicialisation of politics. This chapter critically examines the effects of the judicialisation of politics and contends that this phenomenon poses a threat to the legitimacy of the judiciary. The chapter identifies constitutional supremacy, transformative constitutionalism and the extensive remedial powers of the courts as the factors that have influenced the judicialisation of politics in South Africa. It is argued that the courts’ outcome-orientated approach to adjudication has led to a notable decline in the quality of the courts’ jurisprudence, which itself has adverse implications for the rule of law, that lends credence to accusations of ad hoc reasoning in constitutional adjudication.

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Courts as Sites of Political Contestation: A South African Perspective

  • Sfiso Benard Nxumalo,
  • Dan Mafora

摘要

In South Africa, a nascent constitutional democracy, politics have migrated to the courtroom. South African courts, especially the Constitutional Court, have adjudicated political controversies under the guise of vindicating the Constitution and the rule of law, and fostering a culture of accountability, which has led to the steady judicialisation of politics. This chapter critically examines the effects of the judicialisation of politics and contends that this phenomenon poses a threat to the legitimacy of the judiciary. The chapter identifies constitutional supremacy, transformative constitutionalism and the extensive remedial powers of the courts as the factors that have influenced the judicialisation of politics in South Africa. It is argued that the courts’ outcome-orientated approach to adjudication has led to a notable decline in the quality of the courts’ jurisprudence, which itself has adverse implications for the rule of law, that lends credence to accusations of ad hoc reasoning in constitutional adjudication.