The façade of the Constitutional Court of South Africa
The South African judiciary has broad powers of judicial review under the Constitution of South Africa. Courts are empowered to pronounce on the legality and constitutionality of exercises of public power, including administrative action, executive action, and the passage of acts of Parliament. Though informed by the common law principles that guided judicial review during the apartheid era, contemporary judicial review is authorised by and grounded in constitutional principles. In the case of administrative action, it is also codified in the Promotion of Administrative Justice Act, 2000.
The post-apartheid constitutional transition permitted a significant expansion in judicial review, replacing parliamentary sovereignty and executive prerogative with a framework of constitutional supremacy. In contemporary South African constitutional law, the value of the rule of law is taken to imply the principle of legality, which, akin to the ultra vires doctrine, entails that the courts may invalidate any unlawful exercise of power. The Constitutional Court of South Africa has developed several requirements for the lawful exercise of public power, including an elaborate rationality test. Administrative and executive actions which limit a constitutional right may be tested for their proportionality, while the government's efforts to fulfil its constitutional obligations may be tested for their reasonableness.
These standards have been used to strike down decisions by the President of South Africa, both Houses of Parliament, the provincial legislatures, the Speaker of the National Assembly, and various other public agencies, including the National Prosecuting Authority. The Constitutional Court, in particular, has sometimes been accused of undue judicial activism in the use of its powers of judicial review.
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