Is the testing right of the courts in South Africa anti-democratic?
South African constitutional law is fascinating and controversial. It is probably the most interesting, challenging and complex jurisprudence of its kind in the world. What epitomises this, to a considerable extent, is the anti-majoritarian or counter-majoritarian dilemma. In countries where there are supreme constitutions, like ours, the courts, whose members are appointed and not elected, are expressly involved in interpreting the provisions of their constitutions and invariably in using a testing right in a process of judicial review, to invalidate legislation or executive conduct conflicting with it, giving rise the anti-majoritarian dilemma. This means that the ultimate and final word on constitutional issues is given to the courts who have the power to declare invalid legislation or conduct of a democratically elected parliament and executive respectively if it is in conflict with the Constitution. This acute problem of reconciling the testing right of the courts with democracy i
