Dan Mafora (University of Cape Town (UCT)) & Sfiso Benard Nxumalo (Univeristy of Oxford, Linacre College) have posted Courts as Sites of Political Contestation: A South African Perspective (N Reayat, H O Yusuf (eds.), Constitutionalism in Africa and Beyond: Challenges and Opportunities, (2025) Ius Gentium: Comparative Perspectives on Law and Justice Vol 127, pp 199-237) on SSRN. Here is the abstract:
In South Africa, a nascent constitutional democracy, politics have migrated to the courtroom. South African! courts, especially the Constitutional Court, have adjudicated political controversies under the guise of vindicating the Constitution and the rule of law, and fostering a culture of accountability, which has led to the steady judicialisation of politics. This! chapter critically examines the effects of the judicialisation of politics and contends that this phenomenon poses a threat to the legitimacy of the judiciary.! The chapter identi”es constitutional supremacy, transformative constitutionalism and the extensive remedial powers of the courts!as the factors that have in#uenced the judicialisation of politics in South Africa. It is argued that the courts’ outcome-orientated approach to adjudication has led to a notable decline in the quality of the courts’ jurisprudence, which itself has adverse implications for the rule of law, that lends credence to accusations of ad hoc reasoning!in constitutional adjudication.