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Constitutional Court Review 2019 ©The Authors
Volume 9, 1-18 Open Access article distributed in terms of the
https://doi.org/10.2989/CCR.2019.0001 Creative Commons Attribution License [CC BY 4.0]
Pushing the Boundaries:
Judicial Review of Legislative Procedures in South Africa
STEPHEN GARDBAUM
ABSTRACT: 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 processes embrace not only the law-making process
itself, but also internal National Assembly rules, especially those relating to the National
Assembly's other central function in a parliamentary democracy of holding the executive
politically accountable. 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 whether the Court was justified in taking these steps
or was guilty of overreaching. It argues that, although a certain general tension between
the separation of powers and rule of law underlies the background norm of judicial
non-intervention, in the specific contexts in which these cases were decided, these two
values increasingly came together. Indeed, far from violating separation of powers, the
Court promoted it when overly concentrated legislative-executive power threatened
impunity. Systemic weaknesses of executive political accountability that arises not merely
from the existence but the abuse of dominant party status called for novel remedies of
the type employed by the Court.
KEYWORDS: legislative process, executive accountability, political process theory,
parliamentary government
AUTHOR: MacArthur Foundation Professor of International Justice and Human
Rights, University of California, Los Angeles, School of Law.
Email: gardbaum@law.ucla.edu
ACKNOWLEDGEMENTS: Earlier versions of this article were presented at the
Constitutional Court Review IX Conference, August 2-3, 2018 and the 2019 ICON-S
conference in Santiago. I would like to thank fellow conference participants, three
anonymous peer reviewers, and especially Kate O'Regan and Stu Woolman, for extremely
helpful comments, suggestions and questions.
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