Former Justice of the Constitutional Court, the late Justice Tembile Skweyiya, once wrote in a seminal judgment of the South African Constitutional Court dealing with the tussle between law and politics, “Courts deal with bad law; voters must deal with bad politics”.
Do South African courts too readily involve themselves in political questions? Is it desirable for the courts to decide political questions? Is the mooted amendment of the property clause, section 25, in the South African Constitution a political question that should be resolved by politicians in Parliament, or is it a question that must be resolved by the courts? Is the Land Question in South Africa one for the courts or one for politicians to resolve?
These are some of the questions that Professor Mtende Mhango, Professor of Law at the National University of Lesotho, teases out in this short analysis.
A more detailed analysis of this question is explored in his recent book, Justiciability of Political Questions in South Africa: A Comparative Analysis (2019) Eleven International Publishers ISBN 978-94-6236-918-4 Available at: https://www.elevenpub.com/law/catalogus/recent or www.amazon.com
Read Full Analysis and Review Is-Land-Reform-a-Political-or-Legal-Question – PDF1
It could be both, because in recent years political questions have developed a synchronization with legal questions, the latter giving answer to the former. The constitution itself is a political document with legal validation, the executive can answer the question, whilst the judiciary validates. What if the answer proves unconstitutional? Would a court refrain from infringing on another branch of government?
Thanks for the introduction to Professor Mtende Mhango; I knew not of him prior to this herein-published paper. My take on the paper’s question had always been that since a constitution is a social contract, it stood to be that it’s by the political instead of the judicial process that it should be amended. That was the start and the end of my understanding, which was a very ‘on the face of it’ sort of understanding. Having read and engaged with this paper, my understanding on the question has gotten a facelift.
Thanks again. And keep well.
Thanks for the introduction to Prof Mtende Mhango; I knew not of him prior to this paper. Ab initio, I approached the paper from the preclusion that since a constitution is a social contract, it is by the political and not the judicial process that its amendment should produce. That the start and end of my comprehension of this issue, I’m now all the more edified post this reading. Right I was, but a hollow right; at least I can now talk of a weightier understanding on the paper’s question.
Thanks again.