Pushing the Boundaries: Judicial Review of Legislative Procedures in South Africa

Recent South African jurisprudence has pushed the boundaries of judicial review of legislative processes. Culminating in two 2017 cases, the Constitutional Court has engaged in increasingly robust oversight of various types of legislative procedures: 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.

This paper explores the justification for these steps, in terms of the separation of powers and rule of law. Although there is a certain tension between these two, which underlies the traditional norm of judicial non-intervention, in the contexts in which these cases were decided, they increasingly came together. Special separation of powers and rule of law problems called for special remedies. Acknowledging the type of political process failure involved requires an extension of Ely's theory of judicial review.