Part of the Annual Geoffrey Sawer Lecture series
The formal provisions of the South African Constitution have, over the past fifteen years, shifted from a racist variation of parliamentary sovereignty to a constitutional democracy based on limited government under law, striving for dignity, equality and freedom.
The Constitution of 1996 seeks to incorporate the best lessons learnt by other such systems over the past sixty years in particular, blended with substantial infusions of supranational scholarship and experience and built on an African, developing country base.
The superior courts have had to assume a more directly “political” role in exercising the testing power of judicial review, not only in respect to the protection and enforcement of basic rights. Their judgments have had to engage with urgent socio-economic problems, as those faced with dire circumstances have increasingly turned to the courts to hold the executive and legislature accountable to their constitutional mandate.
In crafting their responses, the judges have had to be extremely sensitive both to their responsibility to the letter and values of the Constitution but also to the policies and limitations of the other branches of government. This lecture seeks to analyse the current situation critically, and to speculate on what lies ahead in this sphere.