Introduction to special issue: separation of powers, the judiciary and the politics of constitutional adjudication

Abstract

This special issue of the South African Journal on Human Rights arises from a general call for papers that was issued in October 2019. The special issue has come to fruition in circumstances that none of us could ever have imagined at the time of its conceptualisation. No one imagined that within six months from that date a health pandemic would sweep across the world, plunging humanity into crisis and bringing life to a virtual standstill while simultaneously redefining the norms of human movement, interaction and exchange. Indeed, the impact of Covid-19 and the regulations taken in order to protect public health were felt everywhere, including our editorial processes. While the pandemic brought death, despair and upheaval and disrupted the order of social, political, cultural, economic and religious life as we know it, questions around the involvement of the courts and the judiciary in the nation’s political contestations became more pronounced. Rather than abating, in line with the slowness induced by the pandemic, these political contestations gathered greater momentum and urgency. For example, as I write this introduction, the number of politically charged matters being litigated or headed towards litigation continues to accumulate, further heightening the interand intra-branch tensions between constitutional structures. At the time the special issue was being conceptualised, our collective frame of reference was informed by the Jacob Zuma presidency and characterised by an increase in civil society and political actors involved in disputes turning to the courts to resolve what were clearly political controversies. Little has changed in that the accumulation of politically charged cases involving former president Zuma, persons thought to be associated with him and, more generally, the governing African National Congress (ANC) continues. The pinnacle point in this respect, at the time of writing, is the Constitutional Court case emanating from the Zondo Commission on State Capture in which the former president has been found guilty of the crime of contempt of court and sentenced to an effective 15-month term of imprisonment. There are, of course, other matters not involving Zuma that have been equally mired in political controversy. Profound questions have been raised concerning the separation of powers doctrine and where the lines should be drawn under our system of constitutional