Vox Populi? Vox Humbug! – Rising Tension between the South African Executive and Judiciary Considered in Historical Context – Part One

29 Pages Posted: 15 Mar 2013

See all articles by David Hulme

David Hulme

University of KwaZulu-Natal

Stephen Allister Pete

University of KwaZulu-Natal, School of Law

Date Written: December 21, 2012

Abstract

This article takes as its starting point a controversy which has arisen around a proposed assessment by the South African government of the decisions of the Constitutional Court, giving rise to concerns that this will constitute undue interference with the independence of the judiciary.

Part One of this article traces and analyses the developing controversy. It then compares the current clash between the South African Executive and Judiciary to a similar clash which took place in seventeenth century England, between King James I and Chief Justice Edward Coke. Such clashes appear to be fairly common, particularly in young democracies in which democratic institutions are yet to be properly consolidated.

Although not immediately apparent, the similarities between the situation which existed in seventeenth England at the time of James I and that in present-day South Africa are instructive. In tracing the development of these two clashes between the executive and judiciary, Part One of this article lays the foundation for a more in-depth comparison in Part Two.

Keywords: constitutional democracy, separation of powers, majoritarian democracy, Golden Metwand, James I, Edward Coke, Jacob Zuma, executive, judiciary, Ronald Dworkin, rule of law

Suggested Citation

Hulme, David and Pete, Stephen Allister, Vox Populi? Vox Humbug! – Rising Tension between the South African Executive and Judiciary Considered in Historical Context – Part One (December 21, 2012). Potchefstroom Electronic Law Journal, Vol. 15, No. 5, 2012. Available at SSRN: https://ssrn.com/abstract=2233247

David Hulme (Contact Author)

University of KwaZulu-Natal ( email )

Umbilo Road
Durban 4000, KZN 4000
South Africa

Stephen Allister Pete

University of KwaZulu-Natal, School of Law ( email )

Umbilo Road
Durban, KZN 4000
South Africa

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