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Title:The legitimacy of judicial review in South Africa's new constitutional dispensation: insights from the Canadian experience
Author:Du Plessis, MaxISNI
Periodical:The Comparative and International Law Journal of Southern Africa
Geographic term:South Africa
administrative law
Abstract:Judicial review under a supreme constitution is a contentious issue. Given the open structure of the Constitution of South Africa (1996) and the enhanced powers of judicial review which judges now possess, courts in South Africa face the prospect of acting in a manner which may run counter to the will of the majority. Sooner or later the courts, and especially the Constitutional Court, will be confronted with the question of legitimacy. The paper draws insights from critical Canadian scholars who are concerned about the power of judges in Canada under a supreme constitution, and examines the most effective means for judges to exercise their power of judicial review in a legitimate manner. It is imperative that South African judges adopt an interpretative model that will provide the courts with a clearly defined institutional role. The most appropriate model would seem to be the value-based approach, which establishes the courts as protectors of rights. However, with an awareness of their innate potential for undemocratic decisionmaking and a commitment to a principled and careful approach to limitation of rights, South Africa can avert the legitimacy crisis which has affected the courts in Canada and the United States. Notes, ref.