The separation of powers and new judicial power : how the South African constitutional court plotted its course

Abstract

In the last few years, more and more nations have enacted new democratic constitutions. In some of these new constitutional democracies judges are exercising considerable influence in their country’s politics than ever before. As a result, courts in these new constitutional democracies have been perceived in some quarters as getting too powerful. This is because they are seen to have overreached their function and usurped the roles of the other branches of government. This has led to the labelling of some of the new courts as being ‘activist’. The opponents of this enhanced power of the courts have joined other critics of judicial power in established democracies who view judicial review as a threat to the tenets of democratic order. These critics have long opined that judges are unelected and therefore cannot purport to substitute their interpretations of the constitution for those of the elected legislature as it is undemocratic, noting that the legislature, unlike the judiciary, is directly accountable to the electorate. They further stress that the role of the judiciary is not to undermine the policies of any democratically elected government, and that an activist judiciary could be abused by politicians and civil society actors to win political battles.