‘Striking Back’ and ‘Clamping Down’ in South Africa: Responding to Adverse Judicial Decisions Under Systems of Parliamentary Sovereignty and Constitutional Supremacy

Abstract

In their article ‘Striking Back’ and ‘Clamping down’: An Alternative Perspective on Judicial Review, Carol Harlow and Richard Rawlings consider the ways in which an executive may respond to judicial decisions which find against it. They organize such responses or ‘tactics’ into ‘striking back’ according to which the executive attempts to nullify the effect of the judgment, and ‘clamping down’ in terms of which the government attempts to prevent future adverse judgments. Harlow and Rawlings consider such tactics in the context of the United Kingdom and find that there has not been a significant change in tactics in the country’s transition from a system of pure parliamentary sovereignty to one influenced by European law and the Human Rights Act 1998. In this paper I consider the practices of ‘striking back’ and ‘clamping down’, identified by Harlow and Rawlings, in the context of South Africa. I pose the question whether there has been a change of tactics in South Africa moving from a system of parliamentary sovereignty to one of constitutional supremacy. I also consider how effective these tactics have been under each system. My finding is that there has been a significant change in tactics in South Africa, as the Constitution has placed restraints on the tactics available to the government in striking back and clamping down, leading the government to resort to more extreme measures which in turn threaten South Africa’s constitutional democracy.