Attacks on the Judiciary: Undercurrents of a Political versus Legal Constitutionalism Dilemma?

Abstract

A number of landmark judicial review decisions and the resultant political backlash are arguably to supportive of the claim that political and legal constitutionalism are entrenched in South Africa. The common thread in the legislature and executive's reaction to judicial review decisions is that government supremacy is under threat from legal constitutionalism. More specifically, there is a perception that courts are meddling in the political space through judgments that are aimed at weakening the government's authority and power. Nonetheless, such decisions have had an effect of reinforcing the judiciary's legal constitutional role of reviewing the lawfulness of the other branches' activities. There is need for strategies to minimize this tension as the continued antagonism can have unintended consequences such as the delegitimisation of the judiciary.Keywords: Judicialisation; political constitutionalism; legal constitutionalism; judiciary; executive; constitution; government; politicisation.