INTRODUCTION

One of the distinguishing features of South Africa's Constitution is its stance on the inclusion of socio-economic rights as justiciable on the same basis as political and civil rights (De Vos 2009b). The South African Constitution is further strengthened by judicial independence and the rule of law. Its transformative nature is founded on the ‘doctrine of separation of powers’ that divides the power between the legislature, judiciary and the executive (De Vos 2009b). The judiciary keeps its counterparts within their constitutional mandate through judicial oversight (Dube 2016). This chapter begins by evaluating the doctrine of the separation of powers, emphasising the origin or historical development of the doctrine. Exploring the concept of judicial oversight, the chapter goes on to review Constitutional Court jurispendence. Further, the chapter discusses whether the judiciary has surpassed the legislature in providing oversight and, thereby, overstepped its oversight mandate and tried to impose judicial supremacy.

The Constitutional Court is the apex court in South Africa on constitutional matters (De Vos 2011), with powers to exercise its exclusive jurisdiction. The court's powers can be used to appeal jurisdiction in matters that raise an arguable constitutional point of law that may be deemed of public importance. The Supreme Court of Appeal (SCA) is the highest court on matters that are not of a constitutional nature. The SCA has some sweeping jurisdiction in constitutional matters, limited by the fact that all constitutional matters are under the exclusive jurisdiction of the Constitutional Court. The High Courts are not final courts but they have similar jurisdiction to the SCA (De Vos 2011). Section 165(2) of the Constitution outlines that courts are subject only to the Constitution and the law, which they are meant to apply impartially and without fear, favour or prejudice. Section 165(4) of the Constitution (1996) requires that the organs of the state, through legislative and other measures, must protect the courts to ensure their independence, impartiality, dignity, and effectiveness.

Recently, the South African judiciary has faced extraordinary challenges as the result of the rulings that courts have made against the legislature and the executive. Political attacks on the judiciary have also intensified (Klug 2010a). Madlingozi (2008) argues that the judiciary has been perceived as impeding the realisation of common social and political goals.