Lawfare and Judicial Legitimacy The Judicialisation of Politics in the case of South Africa Routledge Research in Public Law Series

Lawfare is a complex and evolving concept with many permutations. It is a term that is used to describe both a judicialisation of politics where the Constitutional Court is called upon to uphold constitutional responsibilities, compensating for institutional failures in the broader democratic space, and instances where there is abuse of the legal process to escape accountability. When the court is dragged into politics, it forces an examination of the legitimate scope of judicial review. This book explains how judicialisation of politics leads to the politicisation of adjudication and further weaponisation of the law. Exploring the judicial-political dynamics of South Africa from 2009 onwards, the work traces the consequences of the judicialisation of politics for institutional resilience and broader constitutional stability. Through an in-depth study of judicial legitimacy, the book seeks to provide an overarching theoretical justification for the dangers that inhere in lawfare. It analyses the potential costs of both judicial statesmanship and strategies of deference and avoidance when trying to navigate the Court safely through the era of lawfare. South Africa offers an interesting crucible within which to observe an unfolding global trend. Strengthened by its comparative focus, the implications of lawfare presented in this book transcend the South African context and are applicable to other jurisdictions in the world. The book will be of interest to researchers, academics and practitioners working in the areas of Constitutional Law and Politics.

Preface

1 Introduction

Lawfare and its permutations

Lawfare in the international space

Lawfare by insurgents

Lawfare as a tool of authoritarianism

Lawfare and the judicialisation of politics in South Africa

Dominant party democracy

The Constitutional Court’s unsettled role

This book’s approach

Constitutional resilience

2 The multiple dimensions of judicial legitimacy

Concepts of legitimacy

Political legitimacy

Sociological legitimacy

Legal legitimacy

Moral legitimacy

Conflict and interconnections

Legitimacy and judicial-political dynamics

Conclusion

3 The judicialisation of politics

The “political”

The institutional heritage of the legalisation of politics

Reasons for judicialisation

The nature of a Constitutional Court

Constitutional patriotism

Constitutional design

Rights culture

Administrative justice weaknesses

Undoing unlawfulness unlawfully

Abdication and institutional failings

Institutional power imbalances

Acquiescence to judicial power

Making a distinction

Conclusion

4 Consequences of judicialisation

Political attack

Separation of powers, relationships and conversations

Backlash, curtailment and judicial retreat

Dominance and dysfunction

Abusive constitutionalism

Judicialisation of politics and declining dominance

Impunified disregard

Conclusion

5 Politicisation of law: The judicial view

Judicialisation of politics: effect on the judicial environment

Enfolding the lower courts

Judicial appointment

Acting judges

Commissions of inquiry

Pervading influence, depleting responsibility

Shifting blame

Conclusion

6 The difficulty in achieving judicial effectiveness in a judicialised climate

Non-compliance

Conditions of effectiveness

Judicialisation and the political salience of the case

Clear legal authority

Division and dissent

Remedial action in institutional suits

Authoritative legitimacy

Conclusion

7 Tracing the legitimacy of intervention strategies

Operating in hostility

The formalist response

Detachment

Responsiveness

Judicial statesmanship, responsiveness and the rule of law

Judicial review and democratic legitimacy

Holding public power to account

The legitimacy of intervention

The judicial response to lawfare tactics

Conclusion

8 The Office of the Public Protector and the Court: A wicked problem case study

Nkandla

The effect of the CC’s Nkandla Judgment

State capture

Unintended consequences

Personal cost orders and a motion of no confidence

Analysis

Conclusion

9 Conclusion

Where things stand

The South African crucible

Laws authority

From “illegitimacy” to legitimacy

From legitimacy back to illegitimacy

Judicialisation and identity politics

The only sure bulwark

Bibliography

Index

Kate Dent received her doctorate from the School of Law, University of Cape Town, South Africa.