By: Mojo Motau
The South Africa Constitution provides for the Judiciary to prevail over Parliament and the Executive. The normal policy formulation prerogative by executive and lawmaking by Parliament can be rejected or overruled by the courts.
This is enabled by two things in the Constitution:
⁃ the constitutional principles: These principles are protected against majority parliamentary decisions.
⁃ The Bill of Rights: unlike any jurisdiction in the world the Bill of Rights in South Africa is justiciable. These makes it possible for the minority to overrule the wishes of the majority through the courts.
These two aspects of our Constitution are entrenched. This explains why there are all attempts to ensure that the ruling party majority in Parliament is diminished so that it is not able to master the necessary majority to change any entrenched sections of the Constitution.
Given the above the vote of the population is rendered useless. The sovereignty of the people and the representative parliament that defines democracy is usurped by or transferred to the Judiciary. The Chief Justice therefore becomes the sovereign. He is king.
The reason why this so is simply to protect the white minority who are the beneficiaries of the neo-colonial setup in our country . A single individual can simply overrule policy decision and legislation by simply relying on the Constitutional principles and the Bill of Rights. These overrides everything.
This is the essence of the concept of the Dictatorshio of the Judiciary.
