Abstract: Judicial review of the constitutionality of the exercise of public power in South Africa has brought with it inevitable tensions between the different branches of government. The Constitution does not expressly set out the limits of the doctrine of the separation of powers, so the courts have developed them over the last 24 years. It is argued that this jurisprudence can best be understood if analysed in two periods: from 1994 to 2009 and from 2009 to the present. The primary avenues through which the doctrine has been developed have been based on litigation seeking fi rst to enforce socioeconomic rights, and second to curtail unconstitutional and sometimes corrupt offi cial conduct. The judiciary has inevitably been forced into an activism which could threaten its independence, but it is argued that the courts have remained overwhelmingly faithful to the constitutional project. The resultant content of the doctrine of the separation of powers is thus relatively exceptional.
Keywords: South Africa; deference; socioeconomic rights; lawfare; judicial activism
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