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Refereed articles

Between separation of powers and justiciability: Rationalising the Constitutional Court’s judgement in the Gauteng E-tolling litigation in South Africa – pg. 1.

Although the question in both National Treasury v Opposition to Urban Tolling Alliance 2012 (6) SA 223 (CC) (SANRAL 1) and Magidiwana and another v President of the Republic of South Africa and others 2013 (11) BCLR 1251 (CC) (Marikana 1) was whether the apex court could make the orders sought, and the legal principles thereby enunciated were to similar effect, it was in SANRAL 1 that the Constitutional Court’s reasoning was based essentially on separation of powers grounds and, by implication, the non-justiciability of the subject matter of the dispute. By demonstrating unwillingness to entertain an appeal on interim relief, abstaining from making an order that would be tantamount to unwarranted intrusion into the formulation or implementation of government policy, or frustrating executive authority, the Court clearly deferred to the executive branch as the organ of State responsible for formulation and implementation of government policies. Having critically evaluated the Court’s non-interference with budgetary, policy and polycentric issues of the State, it becomes apparent from this study that the Court had subtly deployed the principle of non-justiciability of matters that were potentially political in nature. Thus, it is concluded that separation of powers and non-justiciability as principles of constitutional jurisprudence do not only serve as grounds for judicial review of legislation and executive conduct; they also operate as restraints upon the Court’s exercise of its judicial review powers.

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