Judicial review as an accountability mechanism in South Africa : a discourse on the Nkandla case

Abstract

Separation of powers among the three branches of government, in most Constitutional democracies, is a design to avert the tyranny of a personalized rule. With specific roles, in relationships characterized by separated but shared powers, each branch of government is a watchdog against the other in case of any abuse. In the South African governing system, the Constitution guarantees functional power relationships among the legislature, the executive, and the judiciary branches of the government. Nevertheless, the dominant party system, in practice, has weakened the legislative oversight and accountability powers to tame the excesses of the executive, contrary to the intendments of the drafters of the Constitution. Judicial review of the various legislative and executive actions, however, has created precedents that seek to reassert legislative capacity to hold the executive accountable. At one time or the other, the judiciary had indicted the legislature and the executive of dereliction of duties. Using primary and secondary data from judicial pronouncements, constitutional provisions, and other public documents, with extant literature, respectively, this paper reviewed the environment that prompted the activist posture of the South African judiciary. An entrenched culture of party loyalty and the incapacity of the legislature to enforce accountability have bolstered the need for assertive judicial review in ensuring accountability. The failure of the legislature to exercise its oversight power has provided the platform for the judiciary to rise as a formidable accountability instrument. Judicial independence, guaranteed by The Constitution, would continue to sustain the tenets of South African representative democracy.