Authored By: Miyelani Forget Shivambu
University of Fort Hare
Abstract
This article explores the effectiveness of democracy within the South African legal system by examining its role in the law-making process and judicial interpretation. It argues that South Africa’s democracy combines representative and participatory elements, allowing citizens to influence policy through elected officials and direct engagement. However, this democratic system is balanced by constitutional supremacy, which ensures that the Constitution and the rule of law bind the government’s actions and the people’s will. Through case law such as Doctors for Life International v Speaker of the National Assembly, Jordaan v Registrar of Births and Deaths, and S v Makwanyane, the article demonstrates the balance between democratic participation and constitutional constraints. Ultimately, it concludes that democracy in South Africa is effective only when harmonised with constitutional supremacy, which disciplines both the legislature and the judiciary to remain faithful to the foundational values of the Constitution.
Introduction
Democracy is one of the foundational values of the South African constitutional order.[1] Its effectiveness lies not only in the periodic election of representatives but also in the ongoing participation of citizens in decision-making and the accountability of state institutions to the people. The South African legal system reflects democracy in two critical spheres: the law-making process and judicial interpretation.
In law-making, democracy operates through representative institutions such as Parliament and provincial legislatures and participatory mechanisms that ensure citizens are not passive observers but active contributors to governance. Sections 19, 42, 59, 72, and 118 of the Constitution provide the constitutional framework for both representative and participatory democracy.[2], giving expression to the will of the people.
In judicial interpretation, democracy manifests differently. While the courts are unelected, they perform the crucial role of safeguarding the Constitution as the supreme law of the Republic. This occasionally creates tension between popular will and constitutional supremacy, the so-called counter-majoritarian dilemma. However, South African jurisprudence demonstrates that judicial review is not an invasion of democracy but a safeguard against majoritarian excesses that might undermine constitutional values.[3]
Democracy in the law-making process
(a) Representative Democracy
Section 1(d)[4] of the Constitution, acknowledges the multi-party system of democratic government. The Constitution seeks to uphold the people’s will through their representatives in state decision-making.
Representative democracy in South Africa is constitutionally entrenched under sections 57(1)(b), 70(1)(b), and 116(1)(b), which empower the National Assembly, the National Council of Provinces, and provincial legislatures, respectively, to make rules and orders concerning their business, with due regard to representative governance.[5] These provisions affirm that legislative bodies derive their authority from the electorate and are obliged to act on behalf of the people. Representative democracy indirectly ensures citizens exercise their political rights through elected officials, legitimising state authority and decision-making.
(b) Political Rights
Section 19 of the Constitution provides for political rights. It stipulates that:
“(1) Every citizen is free to make political choices, which include the right- (a) to form a political party; to participate in the activities of, or recruit members for, a political party; and
(c) to campaign for a political party or cause.”[6]
This provision demonstrates that members of Parliament represent the will of South African citizens in the legislative process. Consequently, all statutes enacted by Parliament reflect the people’s collective will. This principle is further supported by article 25 of the International Covenant on Civil and Polotical Rights (ICCPR) provides: “Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors.”[7]
(c) Participatory Democracy
The Constitution entrenches mechanisms of public inclusion to give effect to this democratic ideal. Section 42(3)[8] provides that the National Assembly is elected to represent the people and to ensure government by the people under the Constitution. Section 59(1)(a)[9] obliges the National Assembly to facilitate public involvement in its legislative processes. Similarly, section 72(1)(a)[10] requires the National Council of Provinces to involve the public in its work, and section 118(1)(a)[11] imposes the same duty on provincial legislatures. These provisions clearly reveal that democracy in South Africa is not confined to periodic elections but extends to ongoing participatory governance.
In Doctors for Life International v Speaker of the National Assembly, the Court found that the National Council of Provinces (NCOP) and the provincial legislatures had failed to fulfil this obligation concerning the Choice on Termination of Pregnancy Amendment Act and the Traditional Health Practitioners Act. Consequently, the Court declared both Acts invalid.[12] This highlights the practical importance of participatory democracy, showing that the people’s will must be genuinely considered in the legislative process and that Parliament’s failure to facilitate participation can result in constitutional invalidity.
Democracy in Juridical Interpretation
Section 1(c)[13] of the Constitution entrenches the rule of law as the foundational value of the democratic society. The rule of law contains the principle that no one is above the law; this means that the will of the people should not override the law. In Matiso, it has been stated that the judicial interpretation must consist of the principle that the constitution is the frame of reference on which everyone and everything must be tested, it is the lens that should be used to interpret the law.[14] This principle indicates that the courts are not bound by the mere will of the people, thus resulting in the counter-majoritarian dilemma.
The so-called counter-majoritarian debate concerns the question of whether it is undemocratic for an unelected judiciary to be vested with the authority to overrule the laws of the legislature, as the elected representatives of the voters.[15] In South Africa, this debate is essentially a spent debate.[16] Malherbe R remarks that the judicial forms a part of trias politica, it is supposed to respect the fact that the legislative authority is vested in the legislature, and to overrule the laws of the legislature is against the will of the citizens, therefore, it invades democracy.[17]
Section 2 of the Constitution provides that the Constitution is the supreme law of the Republic and that any law or conduct inconsistent with it is invalid.[18] Section 172(2)(a)[19] expressly empowers the courts to declare the Acts of Parliament unconstitutional. Section 26(1) (a)-(c) of the Birth and Death Registries Act 51 of 1992[20] had contained the principles that lack gender balance, in Jordaan,[21] the Constitutional Court declared the invalidity of such section regardless of the democracy contained in a form of the statute expressing the will of the parliament.
In S v Makwanyane, Chaskalson P stated that “The question before us, however, is not what the majority of South Africans believe a proper sentence for murder should be. It is whether the Constitution allows the sentence.”[22]
It is submitted that Democracy has less effect in judicial interpretation; courts override it for legitimate reasons. It is not the will of the people that should take precedent in the judicial interpretation; instead, it is the constitution that is supposed to be a starting point.[23] Therefore, if the will of the people is against the constitution, such will must be sacrificed to satisfy the supremacy of the constitution. This is because the constitution is the mirror reflecting the national soul and the identification of national ideas and aspirations.[24] In S v Mwakwanyane, Mahomed J submitted that the constitution binds, disciplines, and harmonizes its people and the government, including the legislature, to pass laws conforming to its values.[25]
Conclusion
The effectiveness of democracy in the South African legal system is a product of the delicate balance between the will of the people and the supremacy of the Constitution. In law-making, representative democracy ensures citizens choices are expressed through their elected officials, while participatory democracy requires direct public involvement in legislative deliberations. The judiciary reinforces this by invalidating laws where participatory obligations are ignored, as in Doctors for Life International.[26] At the same time, judicial interpretation highlights the limitations of democracy. The courts are mandated to uphold the Constitution even when this contradicts the popular will. The counter-majoritarian dilemma, though theoretically concerning, has been settled in practice: the Constitution reigns supreme, and judicial review is necessary to safeguard democracy itself. Therefore, democracy in South Africa is not absolute but conditional upon constitutional supremacy. Its effectiveness lies in its hybrid nature, which is representative and participatory in the legislative sphere and constitutionally constrained in the judicial sphere. Far from undermining democracy, this arrangement strengthens it, ensuring that governance reflects the will of the majority and the enduring values of dignity, equality, and freedom at the heart of the South African Constitution.
Reference(s):
[1] The constitution of the Republic of South Africa, 1996, s 1.
[2] The constitution of the Republic of South Africa, 1996, s 19, 42, 59, 72 and 118.
[3] Christo Botha, STATUTORY INTERPRETATION / An Introduction for Students (6th edn) 215.
[4] The constitution of the Republic of South Africa, 1996, s 1(d).
[5] The constitution of the Republic of South Africa, s 57(1)(b), 70(1)(b), and 116(1)(b).
[6] The constitution of the Republic of South Africa, 1996, s 19.
[7] Article 25 of the International Covenant on Civil and Political Rights (ICCPR).
[8] The constitution of the Republic of South Africa, 1996, s 42(3).
[9] The constitution of the Republic of South Africa, s Section 59(1)(a).
[10] The constitution of the Republic of South Africa, s 72(1)(a).
[11] The constitution of the Republic of South Africa, s 118(1)(a).
[12] Doctors for Life International v Speaker of the National Assembly 2006 (6) SA 416 (CC).
[13] The constitution of the Republic of South Africa, 1996, s1(c)
[14]Matiso v Commanding Officer, Port Elizabeth Prison 1994 (4) SA 592.
[15] Christo Botha, STATUTORY INTERPRETATION / An Introduction for Students (6th edn) 214.
[16] I M Rautenbach, “Rautenbach – Malherbe Constitutional Law” (2018, 7th edn) 132.
[17] Malherbe R “The legal system and the judiciary” in Taljaard R and Venter A “Parliament” in Venter A and Landsberg C Government and Politics in the New South Africa (2006) 106-107.
[18] The constitution of the Republic of South Africa, 1996, s2.
[19] The constitution of the Republic of South Africa, 1996, s 172(2)(a).
[20] The Birth and Death Registries Act 51 of 1992, s 26(1) (a)-(c).
[21] Jordaan v Minister of Home Affairs (CCT 296/24) [2025] ZACC 19.
[22] S v Mwakwanyane (CCT3/94) [1995] ZACC 3 para 87.
[23] Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism 2004 (7) BCLR 687 (CC) at para 72.
[24] S v Acheson 1991 (2) SA 805.
[25] S v Mwakwanyane (CCT3/94) [1995] ZACC 3 para 262.
[26] Doctors for Life International v Speaker of the National Assembly 2006 (6) SA 416 (CC).
