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Is the ambit of judicial review in South Africa properly guarded to ensure that judges do not (ab)use it to the extent of replacing constitutional supremacy with judicial supremacy?
Mini Dissertation (LLM (Constitutional and Administrative Law))--University of Pretoria, 2021.
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| Format: | Thesis |
| Language: | English |
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University of Pretoria
2021
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| _version_ | 1867613508879777792 |
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| access_status_str | Open Access |
| author2 | Malan, Koos |
| author_browse | Malan, Koos |
| author_facet | Malan, Koos |
| collection | Thesis |
| dc_rights_str_mv | © 2019 University of Pretoria. All rights reserved. The copyright in this work vests in the University of Pretoria. No part of this work may be reproduced or transmitted in any form or by any means, without the prior written permission of the University of Pretoria. |
| description | Mini Dissertation (LLM (Constitutional and Administrative Law))--University of Pretoria, 2021. |
| format | Thesis |
| id | oai:repository.up.ac.za:2263/78867 |
| institution | University of Pretoria (South Africa) |
| language | English |
| last_indexed | 2026-06-10T12:37:16.203Z |
| license_str | Other — see source repository |
| provenance_str_mv | Harvested via OAI-PMH from UPSpace — University of Pretoria Institutional Repository |
| publishDate | 2021 |
| publishDateRange | 2021 |
| publishDateSort | 2021 |
| publisher | University of Pretoria |
| publisherStr | University of Pretoria |
| record_format | dspace |
| source_str | UPSpace — University of Pretoria Institutional Repository |
| spelling | oai:repository.up.ac.za:2263/78867 Is the ambit of judicial review in South Africa properly guarded to ensure that judges do not (ab)use it to the extent of replacing constitutional supremacy with judicial supremacy? Malan, Koos gwalisto@gmail.com Gwala, Michael Zenzele UCTD Mini Dissertation (LLM (Constitutional and Administrative Law))--University of Pretoria, 2021. “Ours is a constitutional democracy, not a judiciocracy”, so said Chief Justice Mogoeng Mogoeng in Electronic Media Network Limited and Others v e.tv (Pty) Limited and Others [2017 (9) BCLR 1108 (CC) para 1]. Not one of the three arms of government, namely, the legislature, executive and judiciary, is supreme in relation to the others. Instead, the Constitution is supreme and each of the three arms of government has exclusive jurisdiction in its constitutionally ordained domain. Their powers are separated, conferred, and protected by the Constitution, subject to the principle of checks and balances. However, not all the stakeholders in the South African legal discourse appreciate or even believe in the practical value of this separation of powers. To the contrary, and alarmingly, there has, in the recent past, been an increase in the number of claims that the judiciary considers itself supreme. On 15 May 2017, for example, approximately over 1000 ANC supporters marched through the streets of Durban behind a banner bearing a rhetorical question: ‘who runs SA: courts or executive?’ The general concern appears to be that judges are seemingly (ab)using their judicial review powers to replace constitutional supremacy with judicial supremacy.The aim of this dissertation is to question the validity of this concern. First, the dissertation will explain the difference between the constitutional and judicial supremacy regimes, with the view to demonstrate why a replacement of the constitutional supremacy regime in the South African legal system with the judicial supremacy regime by the judiciary would be inappropriate. This would explain why the concerns of judicial overreach, if valid, would be justified. Second, the dissertation will discuss judicial review, with the view to explain the perceived power of the judiciary over the other branches of government. Third, and as the crux of the dissertation, will be the discussion of a number of factors and considerations that come into play when judges adjudicate. This will demonstrate that, whilst theoretically possible, judicial supremacy is not something that judges can simply implement on a whim. The dissertation will cast doubt on the validity of claims that judges are (ab)using judicial review to replace constitutional supremacy with judicial supremacy. Public Law LLM (Constitutional and Administrative Law) Unrestricted 2021-02-26T12:10:42Z 2021-02-26T12:10:42Z 2021-04 2020 Mini Dissertation Gwala, MZ, Is the ambit of judicial review in South Africa properly guarded to ensure that judges do not (ab)use it to the extent of replacing constitutional supremacy with judicial supremacy?, LLM Dissertation, University of Pretoria, Pretoria, A2021 http://hdl.handle.net/2263/78867 en © 2019 University of Pretoria. All rights reserved. The copyright in this work vests in the University of Pretoria. No part of this work may be reproduced or transmitted in any form or by any means, without the prior written permission of the University of Pretoria. application/pdf University of Pretoria |
| spellingShingle | UCTD Is the ambit of judicial review in South Africa properly guarded to ensure that judges do not (ab)use it to the extent of replacing constitutional supremacy with judicial supremacy? |
| title | Is the ambit of judicial review in South Africa properly guarded to ensure that judges do not (ab)use it to the extent of replacing constitutional supremacy with judicial supremacy? |
| title_full | Is the ambit of judicial review in South Africa properly guarded to ensure that judges do not (ab)use it to the extent of replacing constitutional supremacy with judicial supremacy? |
| title_fullStr | Is the ambit of judicial review in South Africa properly guarded to ensure that judges do not (ab)use it to the extent of replacing constitutional supremacy with judicial supremacy? |
| title_full_unstemmed | Is the ambit of judicial review in South Africa properly guarded to ensure that judges do not (ab)use it to the extent of replacing constitutional supremacy with judicial supremacy? |
| title_short | Is the ambit of judicial review in South Africa properly guarded to ensure that judges do not (ab)use it to the extent of replacing constitutional supremacy with judicial supremacy? |
| title_sort | is the ambit of judicial review in south africa properly guarded to ensure that judges do not ab use it to the extent of replacing constitutional supremacy with judicial supremacy |
| topic | UCTD |
| url | http://hdl.handle.net/2263/78867 |