‘Lawfare’ in South Africa and Its Effects on the Judiciary

Abstract

Abstract This article identifies three senses of the term ‘lawfare’ in the South African context. In the first and most standard sense of the term, law was abused by the state during the pre-democratic era in order to construct a racist state. In the second sense, litigation was used in the period 1910–1993 as a weapon of the weak by those excluded from the franchise, in order to resist oppression and rule by law. The third sense of lawfare overlaps with the second but is associated with the judicialisation of politics in the era of constitutional democracy. It refers to the use of litigation to resolve contentious political disputes in spite of the existence of many non-curial constitutional safeguards. Using examples, the article shows that lawfare in this third sense was a feature of the presidency of Jacob Zuma and that it was triggered by the rise of nepotism, corruption and state capture well as the abdication of governance responsibilities to the judiciary. It argues that because the courts have been drawn into the public arena and thrust into a relationship of constant tension with the political branches, the judiciary has become the primary casualty of this barrage of lawfare.