Judicial Review: A Fertile Field of Contention

Abstract

While constituting a core feature of democratic South Africa, judicial review of legislative action remains a contentious issue globally. The best case for such review remains convincing only in justifying severely constrained judicial veto power in select circumstances.

In developing a novel construction of judicial review, various political and philosophical arguments both in support of and against various forms of judicial review is analysed. The author argues that the crucial question is not one of efficiencies but rather of political legitimacy and any form of legislative judicial review will only legitimately subvert legislative decisions where the underpinnings of democracy and rights are threatened with scant means of recourse available. The authors revised model advocating for the strict application of legislative judicial review to select circumstances pertaining primarily to minority rights, attempts to rid its present construction of existing pathologies while retaining some form of legitimate protection where necessary