Executive Authority and Judicial Intervention: A Lawfare Critique into the President’s Powers of Appointment

Hadebe, Lindokuhle

Executive Authority and Judicial Intervention: A Lawfare Critique into the President’s Powers of Appointment

Thesis / Dissertation

2023

Abstract

Lawfare has generated significant debate within the South African legal and political circles. The Courts have been lambasted for their adjudication of disputes considered to be ‘political' and falling outside the scope of their judicial authority. The critique has been particularly scathing in cases dealing with the conduct of functionaries of critical constitutional institutions. This dissertation will critically evaluate the validity of this lawfare charge by focusing on the President's constitutional powers to appoint the National Director of Public Prosecutions (NDPP) and Cabinet. The dissertation will evaluate the President's power to appoint such critical constitutional functionaries within the political context of a one-party democracy which emboldens the President's power to appoint any candidate he deems fit with very few internal fetters. I will examine how this largely unconstrained power can be harmful when used for ulterior purposes that subvert constitutional democracy. Rejecting the lawfare critique, I argue that in light of the institutional arrangements of our constitutional democracy, Courts have become an increasingly important branch of government within the trias politica to safeguard and protect democracy and further the rule of law. I will analyse case law that display how the Courts have utilised their judicial authority to curtail irrational decision making and improper conduct by functionaries of key constitutional institutions. Relying on democratic reinforcement theory, I will argue that the Courts' intervention in these cases has been to further constitutionalism and good governance. It is not, as some of the lawfare critics suggest, a breach of the separation of powers principle or an instrument to unduly rob the political branches of their power in an improper way.

Keywords

Law

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