Abstract
This article takes as its starting point a controversy which has arisen around a proposed assessment by the South African government of the decisions of the Constitutional Court, giving rise to concerns that this will constitute undue interference with the independence of the judiciary. Part One of this article traces and analyses the developing controversy. It then compares the current clash between the South African Executive and Judiciary to a similar clash which took place in seventeenth century England, between King James I and Chief Justice Edward Coke. Such clashes appear to be fairly common, particularly i n youngdemocracies in which democratic institutions are yet to be properly consolidated. Although not immediately apparent, the similarities between the situation which existed in seventeenth England at the time of James I and that in present-day South Africa are instructive. In tracing the development of these two clashes between the executive and judiciary, Part One of this article lays the foundation for a more indepth comparison in Part Two.KEYWORDS: constitutional democracy; separation of powers; majoritariandemocracy; Golden Metwand; James I; Edward Coke; Jacob Zuma; executive; judiciary; Ronald Dworkin; rule of law
Highlights
D Hulme* S Peté**As the guardian of the constitution, the high court from time to time disappoints the ambitions of legislators and governments
Towards the end of 2011 a public controversy erupted in South Africa when it was announced that the government intended to conduct an assessment of the decisions of the South African Constitutional Court
Political disputes resulting from the exercise of powers that have been constitutionally conferred on the ruling party through a popular vote must not be subverted, because those who disagree with the ruling party politically, and who cannot win the popular vote during elections, feel [that] other arms of the State are avenues to help them co-govern the country
Summary
As the guardian of the constitution, the high court from time to time disappoints the ambitions of legislators and governments. Political disputes resulting from the exercise of powers that have been constitutionally conferred on the ruling party through a popular vote must not be subverted, because those who disagree with the ruling party politically, and who cannot win the popular vote during elections, feel [that] other arms of the State are avenues to help them co-govern the country In support of his view that the extensive criticism on the part of members of the executive against the judiciary and the Constitution was unfair, unjustified and uninformed, Bizos cited two examples from South African legal history, in which the executive and judiciary had clashed over the question of the separation of powers. The dawn of a new year was to see the above controversy develop into a full-blown furore.[36]
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