JUSTICIABILITY, CONSTITUTIONAL ADJUDICATION AND THE POLITICAL QUESTION IN A NASCENT DEMOCRACY: A PRELIMINARY SOUTH AFRICAN ENQUIRY

Abstract

Given the conflicting scenario whereby the Constitution of South Africa incorporates the principle of justiciability and, at the same time, vests in the Courts wide powers of judicial review, the question is whether the Courts in South Africa would be disposed to throw out a
claim of breach of constitutional right on the ground that the matter of which relief is sought raises a purely political question. Although no cases had reached the Constitutional Court based on the political question doctrine of the American formulation, there have been several cases where the Court had been faced with politically sensitive and socially delicate problems. This study shows that the Court had not shied away from adjudication in such circumstances in so far as there is a constitutional or statutory provision dealing with the subject matter in dispute. Consequently, it had not succumbed to pressures to adjudicate constitutional issues by resort to political theories. In the final analysis, the Courts had been essentially involved in delicate balancing of competing interests.