“What’s Past is Prologue”: An Historical Overview of Judicial Review in South Africa – Part 1
Author D M Pretorius
Affiliations: BA LLB (Stell) BA (Hons) LLM PGCE (SA) PhD (Witwatersrand); Partner: Bowmans, Johannesburg; Director: St Augustine College of South Africa.
Source: Fundamina, Volume 26 Issue 1, p. 128-198
This contribution explores the historical origins and development of judicial review in South Africa as a function and as an indication of shifts in relations between – and of the relative legal and political powers of – the three branches of state. It also provides bibliographical details of sources chronicling these historical processes. The contribution is published into two parts. This first part focuses primarily on the historical development of constitutional review, namely the power of the courts of law to test the validity of legislation against constitutional criteria. The scope of this power depends not only on the relevant constitutional provisions, but also on the actual and perceived independence of the judiciary, as well as on judicial dispositions and socio-political attitudes toward the courts. This part of the contribution further considers the origins of judicial review of the proceedings of inferior courts and of voluntary associations. The second part of the article will analyse the historical development of administrative law, with the emphasis on the common-law evolution of judicial review of the administrative decision-making processes of organs of state. In addition, it will investigate the growth of administrative law as a discrete discipline in South African law schools. Finally, it will look at the role of the interpretation of statutes in the context of administrative law.