In an address to the recent Access to Justice conference, President Jacob Zuma emphasised that the courts should not be more powerful than the executive government.
"The executive, as the elected officials, have the sole discretion to decide policies for the government," he said. "This means that once the government has decided on appropriate policies, the judiciary cannot, when striking down legislation or parts thereof on the basis of legality, raise that as an opportunity to change the policies."
Some political analysts and commentators interpreted the president's comments as a reference or indeed a veiled threat flowing from the Constitutional Court's bold decision earlier this year in which by the narrowest majority of judges it was held in the Glenister case that the legislation flowing from a change of policy by the government - disbanding the Scorpions and putting in its place the Hawks - was unconstitutional.
The issue at stake involves the separation of powers, a cardinal doctrine in constitutional law and democratic government. The constitution provides for constitutional supremacy, which means the supremacy of the constitution has replaced the sovereignty of Parliament which prevailed in our constitutional dispensation before 1994.
The supremacy of the constitution gives the courts a testing right in order to invalidate any law in conflict with the constitution. This means the final word on constitutional matters is vested in the courts and not in the legislature or the executive. In effect our constitution establishes judicial as opposed to legislative supremacy.
However, this creates a dilemma, because judges who are merely appointed are empowered to invalidate laws made by a democratic legislature. This is a source of potential controversy.
Since 1994 the courts have exercised this power boldly in important cases involving the supremacy of the constitution - for instance, when then-president Mandela, acting under the Local Government Transition Act, amended the principal act in a manner which favoured the ANC and was prejudicial to the New National Party, who challenged its constitutionality. The Constitutional Court reversed the decision of the lower court, invalidating the president's proclamation and Parliament's amendment of the Local Government Transition Act by invoking the doctrine of separation of powers.
Mandela responded with characteristic statesmanship by praising the Constitutional Court and observing that "this judgment is not the first, nor the last, in which the Constitutional Court assists both the government and society to ensure constitutionality and effective governance". …