Separation of powers in the South African context: Is there space for the political question doctrine?

Abstract

In a constitutional democracy the courts are usually given the power of judicial review. This power allows the courts to review legislative and executive conduct and test it against the constitution. If the conduct in question is found to be unconstitutional, then the courts can declare that conduct to be invalid. However, this power gives rise to some difficult questions and one of these is how can the courts exercises their powers without overreaching and thereby infringe the separation of powers principle. The courts have tried not to overreach their powers by adopting different approaches to judicial review. In the United States the courts have adopted a political question doctrine approach or the non-justiciable approach. In South Africa the courts have adopted the judicial self-restraint approach. Each of these will be discussed in this dissertation. The dissertation will also consider the advantages and disadvantages of each of these reviews. Furthermore, it will consider some of the criticism that have been levelled against the judicial self-restraint approach. This dissertation aims to critically examine the political question doctrine and determine whether it could contribute to the development of the South African separation of powers. However, this dissertation does not call for the political question doctrine to replace the judicial self-restraint approach adopted by the Constitutional Court.