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

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 i n youngdemocracies 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 indepth 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