Judicial Policy Revisited

The South African judiciary is no longer fettered by parliamentary sovereignty but is instead expected to engage in transformative constitutionalism. In realising the transformative vision of the Constitution, however, the courts are apparently handicapped by a more insidious constraint inherited from the pre-democratic era: a formalistic legal culture. This culture remains evident in administrative law. Formalism was not only a significant deficiency of the pre-democratic law but has been reintroduced to some extent by the Promotion of Administrative Justice Act 3 of 2000. In this article a parallel is drawn between 'judicial policy' – a pre-democratic device designed to enable judges to escape the constraints of parliamentary sovereignty – and transformative adjudication, or what judges must do in order to achieve the aims of transformative constitutionalism. It is argued that a commitment to anti-formalism is an important element of transformative adjudication. This proposition is illustrated with reference to three judgments of an especially conscientious judge, Edwin Cameron, in the context of administrative law. These judgments, it is suggested, reveal an antipathy to formalistic legal reasoning and a willingness to interpret legal materials boldly and purposively in accordance with the substantive vision propounded by the Constitution

Adjudication · Administrative law · Judicial review · Political science · Sociology · Transformative learning · Comparative and International Law Studies · Judicial and Constitutional Studies · Law · Legal Issues in South Africa

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