Pushing the boundaries : judicial review of legislative procedures in South Africa

Abstract

This article contributes to the growing scholarly interest in judicial review of legislative processes by analyzing the current comparative outer boundary of the practice, in South Africa, and presenting a defence of it that suggests the need for a friendly amendment to Ely-style political process theory. In recent years, the South African Constitutional Court has dramatically shed the general reluctance it had shared with most courts around the world to review legislative processes as distinct from outcomes. In a series of graduated steps culminating in two 2017 cases, the Court has engaged in increasingly robust oversight of various types of legislative procedures. These include not only the lawmaking process itself, but also internal National Assembly rules, especially those relating to its other key function in a parliamentary democracy of holding the executive politically accountable. Moreover, it has not only found existing National Assembly rules unconstitutional, as violating the constitutional rights of individual members of parliament, but also mandated the creation of others where they do not already exist. The article begins with a brief discussion of the background norm of non-intervention in legislative procedures from which the Court has progressively and so notably departed. It then charts the three steps by which this departure has come about, showing how each of them marks a new stage in the degree of judicial supervision. The heart of the article explores why the Court has been able to take these steps and what the normative justification for them might look like, in terms of such core values of constitutional democracy as the separation of powers and rule of law. Although there is a certain general tension between these two values, which underlies the background norm of judicial non-intervention, it is argued that in the specific contexts in which these cases were decided, they increasingly came together. Special separation of powers and rule of law problems, arising not merely from the existence but the systematic abuse of dominant party status, called for special remedies of the type employed by the Court. The article concludes by arguing that acknowledging this type of political process failure requires an elaboration and extension of Ely's theory of judicial review.