Thesis (LL.M.)--University of the Witwatersrand, Faculty of Law, 1998. / This thesis explores the democratic legitimacy of the power of judicial review.
It discounts the countermajoritarian dilemma on the basis that constitutional
democracy means more than majoritarianism, it entails judicial protection of
other characteristics fundamental to democracy from invasion even by a
majority government. Such characteristics include political processes and
values which ensure the continuation of democratic rule. The Court may,
however, be criticised if it exercises its power of judicial review in a manner
which is undemocratic. I argue that the Court is obliged to exercise its power
in a manner which respects the doctrine of separation of powers. In
interpreting the Constitution, the Court is therefore obliged to show
deference to Parliament by giving effect to the purpose of a constitutional
provision. I conclude that the Court may only have recourse to the values
which the legislature chose to include in the Constitution, except when the
Court protects those political processes and values which ensure the survival
of constitutional democracy.
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:wits/oai:wiredspace.wits.ac.za:10539/14513 |
| Date | 07 April 2014 |
| Creators | Hofmeyr, Adriane Janet |
| Source Sets | South African National ETD Portal |
| Language | English |
| Detected Language | English |
| Type | Thesis |
| Format | application/pdf |
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