Reaffirming Institutional Legitimacy: How the Constitutional Court of South Africa Has Responded to Cases Concerning the Responsibilities of Government Leaders

Abstract

This research explores topics of democratic constitutionalism, populism, and legitimacy of the judiciary within South Africa. When studying a nation’s Constitutional Court, scholars often discuss the Court’s decisions surrounding socioeconomic rights or new policy. The Court’s judgments regarding the actions of the executive will instead be reviewed in this research as a means to understand how the South African Constitutional Court protects its own institutional legitimacy and the structure of South Africa’s constitutional democracy. From the inception of this research, I have hypothesized that the South African Constitutional Court has helped bolster legitimacy of the post-apartheid South African democracy. It was not until further investigation that have been able to understand and explain to what extent and how this is true.

In an effort to organize my research and effectively prove or disprove my hypothesis, there are multiple questions that must be asked. These questions involve the conditions that the Constitutional Court has grown in its legitimacy since the end of apartheid. Additionally, I question how our understanding of the South African Constitutional Court’s legitimacy has shifted in the past ten years. Research has been conducted by means of Constitutional Court case studies, newspaper collection, and personal interviews with South African Constitutional scholars. I combine literature and historical review with an exploration of court cases before and during Jacob Zuma’s presidency. By evaluating court cases and the relevant news articles surrounding such decisions, this thesis explores the Court’s fulfilling of expectations involving populism, lawfare, and legitimacy. The meanings of populism, lawfare, and legitimacy will all be teased out and defined within existing scholarship, accompanied by a further justification of the focus on the Zuma presidency.

In discussion of my findings, I conclude my hypothesis to be correct, albeit lacking nuance. There appears to be a slight difference or evolution of the Constitutional Court’s importance since the end of apartheid. Before the Zuma presidency, the Court was able to maintain legitimacy through the tradition of rule of law and the confidence of political leaders. But, when discussing political strife and corruption seen in the past ten years, the Constitutional Court has been able to remain independent and legitimate by operating boldly but still within the confines of the Constitution. This research is concluded with a conversation about how my findings have any bearing on policy making throughout the world and in the future.