Directory of Research and Expertise

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Research Summary and Profile

Research interests:

Law

Project summary relevant to Fellowship:

‘BOUNDARIES AND BORDERS: HOW FAR IS TOO FAR' 

During previous periods of long leave from the Supreme Court of Appeal I undertook research at Cambridge and Oxford Universities on the role of judges in judging in a constitutional state: the restraints operating on them in the performance of their ju6icial functions; and the relationship between the separation of powers and the enforcement of rights under a Bill of Rights. The South African Constitutional Court has said that through its jurisprudence it would evolve a distinctively South African concept of the separation of powers. It has not however attempted to articulate such a concept so one needs to examine its jurisprudence to see whether a principled basis has emerged for determining where the boundaries lie. The task has been complicated by the pressures imposed upon the courts generally and the Constitutional Court in particular by litigation over what is known as State Capture during the years of Jacob Zuma's presidency. These issues have profound political significance and the decisions (and the judges who give them) are frequently subjected to attack for promoting particular political agendas. 

 

This question regularly confronts the judiciary in adjudicating the rationality and reasonableness of the conduct of organs of state. It is of particular concern in cases involving what is referred to as self-review of the conduct of public bodies - a matter I recently addressed in giving the Jules Browde lecture mentioned in item 52 above - and in assessing appropriate remedial responses where conduct is held to be unconstitutional. Where lawyers construct a case in binary terms as a question of rights under the Bill of Rights. does the ability to do that effectively resolve the issue of separation of pO\\ers because courts are obliged when called upon to do so determine the content of any claimed right? The concept of a separation of powers suggests that there are matters that are beyond the remit of the courts. but how are they to be identified? Does the guarantee of access to courts for disputes that can be resolved by the application of law, have a role to play in formulating a principled concept of the separation of pO\\ers in South Africa. While my focus is in that sense domestic my research would consider recent developments in the UK. such as the case of R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland involving the prorogation of Parliament, and other jurisdictions confronting the same issues. The aim would be to formulate some basic principles that can inform judicial decision-making in this area of law. 

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