Judicial overreach: a purely South African phenomenon?

Much has been said recently in South Africa on whether courts were interfering in the realm of the executive. This brief by Anton van Dalsen shows that this discussion doesn't just take place here.



In a recent brief, the subject of “judicial overreach” was discussed, especially as a result of some perceptions of the judiciary crossing the line between its own defined jurisdiction and that of the executive and/or legislature’s mandates. 1

On the subject of the Constitutional Court straying into the field of Parliament, the Speaker of the National Assembly stated a few weeks ago that

It has become ever more important, that the Constitutional Court cultivates that prudent reticence which has distinguished it in the past and to which it owes not only its popularity, in comparison to other constitutional organs, but above all its authority.  

You will be forgiven for imagining that this tactfully phrased warning to the courts to think twice about overreaching was made by the Speaker of the National Assembly in Cape Town.  In fact, it was the President of the German Bundestag (or Speaker of the National Assembly, in our language) who wrote a lengthy op-ed entitled Productive Tension, in a major German newspaper about the relationship between the German Constitutional Court and the German Parliament.2  The latter court performs a similar function to the South African Constitutional Court, within the German constitutional structure.  It was established in 1951 and there have been many controversies since its inception as to whether it was getting too involved in politics or unduly interfering in the legislature’s activities.


An everyday happening in a functioning constitutional democracy

What does this show us?  Quite simply, that in a democracy which has a clearly defined role for each of the legislature, executive and constitutional court, there are bound to be conflicts from time to time about one constitutional institution treading on another’s toes.  Some kind of tension in this sphere is an essential part of a functioning democracy and is not necessarily a case of one usurping the power of another.  It is everyday political reality in a constitutional democracy.  As one commentator on the Bundestag President’s op-ed piece put it:  

Does the court overreach too much, is it too political?   It is mostly the criticism that is directed at the court, that is politically motivated.3


Are our courts messing with presidential prerogatives ?

Discussions on judicial overreach tend to drift into other areas quite quickly: for example, the potential judicial interference in what are often still described in South African political and media debates as presidential prerogatives.   These so-called prerogatives are a colonial relic, ultimately derived from the royal prerogatives within an absolute monarchy.  They are not only obviously ill-suited to the South Africa of today, but are no longer relevant:  the South African Constitution makes no mention of “prerogatives” of the head of state or of any other constitutionally defined entity.  

The powers that are conferred on the head of state for him to exercise at his discretion, nevertheless have to be exercised lawfully, and one requirement of lawfulness is rationality.  Simply put, that there must be a logical connection between the process to get to a decision and the purpose for which the decision was taken.  So, an irrational decision would, for example, be one where irrelevant considerations played a meaningful role.  An extreme historical example is that of the Roman Emperor Caligula appointing his horse as consul.  Even if historians do not all agree that it actually happened, it provides a supreme example of irrationality.  


Concluding question

In case of a dispute, who decides whether the president’s decision is rational?  Why the courts, of course.  And they may well be deciding about the rationality of some presidential actions in the coming months.

Anton van Dalsen

Legal Counsellor


1 Judicial Overreach, HSF Brief Series, 8 June 2017, by Chelsea Ramsden

2 Produktive Spannung, Frankfurter Allgemeine Zeitung, 11 May 2017, by Norbert Lammert

3 Das letzte Wort, Süddeutsche Zeitung, 9 June 2017, by Wolfgang Janisch