This paper examines how the constitutional framework supports and encourages the deepening of democracy in South Africa. This is a broad topic and it is, therefore, necessary to make some preliminary remarks about the appropriate scope of this paper.
The inquiry suggested by the topic involves tracing a causal link between the constitutional framework and the quality of South Africa’s democracy, measured against an ideal standard implied by the phrase ‘deepening of democracy’. Stated thus, the question set for this paper is too broad to be capable of meaningful examination. A comprehensive description of South Africa’s constitutional framework would need to cover issues such as the basic form of the state, the supremacy of the constitution, the separation of powers, the form of the electoral system, the structure of the civil service, and so on. Once that were
done, the tracing of a causal link between the essential features of this framework and the quality of South Africa’s democracy would require a book-length study. Even then, it would be very difficult to isolate, from among the many other influences on the quality of South Africa’s democracy, the influence exerted by the constitutional framework.
Given the impossibility of this task, this paper pursues a much more modest objective. The first limitation on the scope of the study is to restrict the description of the constitutional framework to a single element only. For reasons given below, this paper focuses on the separation of powers between the three branches of government and in particular, on the role given to the judiciary. Secondly, in place of the quality of South Africa’s democracy, the paper substitutes an assessment of various judicial decisions that have had a bearing on the way in which democratic politics is pursued. The assumption behind this second limitation is that the quality of democracy in a country depends to some degree on judge-made rules and therefore that it is possible to examine changes in the quality of democracy by assessing changes to these rules.
The next section describes the two key concepts used in this paper (‘the deepening of democracy’ and ‘the constitutional framework’) in more detail. Sections 3 and 4 move on to discuss four decisions of the Constitutional Court, the first two dealing with social rights, the third with the electoral system and the fourth with the extra-territorial application of the Bill of Rights. As indicated above, the purpose of these case studies is to describe how the Court has translated the general constitutional scheme relating to the separation of powers into detailed legal rules, and then to assess the impact of these rules on democratic politics. The final section brings the threads of the argument together and draws a general conclusion about the role of the constitutional framework in the deepening of democracy in South Africa.