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In the Throes of "the People"

The Populist Challenge to South African Courts by: Dan Mafora

This paper interrogates the populist attacks on the courts, considers the effects of such attacks and seeks to provide potential strategies for warding off those attacks and safeguarding the courts' institutional integrity.
In recent years, South Africans have borne witness to a gradual decline in the democratic governance of its constitutional institutions, increased polarisation in public discourse and an ascendence of populist rhetoric – all of which undermine its nascent constitutional order. Populist rhetoric has gained much ground, manifesting itself publicly both from within and without the ruling African National Congress (ANC). This shift towards populist politics has had a ripple effect not only on parliamentary and electoral politics, but also broadly on the behaviour of other institutions in the constitutional system. This paper interrogates a more recent and more worrying phenomenon of populist attacks on the courts, considers the effects of such attacks, and seeks to provide potential strategies for warding off those attacks and safeguarding the courts’ institutional integrity. In Part II, I offer a working definition of populism and situate the phenomenon in the South African context. In Part III, I explore the causes of the rise of populism in the country’s politics. Part IV closely examines the features of common populist attacks on the courts. I conclude in Part V with an analysis of the effects of the attacks on the courts as constitutional institutions and suggest ways in which judges ought to respond to populist attacks on the judiciary.
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