Legitimating transformation: political resource allocation in the South African constitutional court

This study examines the performance of the South African Constitutional Court in four cases in which it was required to review the allocation of resources by the political branches. According to the conventional view, political resource allocation should be immune from judicial scrutiny because it involves decisions that courts are neither institutionally equipped nor mandated to make. In new democracies, the added reason for judicial self-restraint in this area is thought to be that courts should avoid potentially damaging confrontations with the political branches un1i1 they have established their legitimacy. And yet, in the cases examined here, the Constitutional Court has not only skillfully negotiated its review function, but actively sought out opportunities to subject political resource allocation to the standards set by the Constitution. In this way the Court has been able to build its legitimacy by endorsing the overall thrust of the political branches' transformation efforts. In turn, those efforts have been legitimated by their exposure to judicial scrutiny. This finding suggests that the conventional view may be wrong, and that constitutional courts in new democracies may need to involve themselves in controversial political questions if they are to play a meaningful role in the consolidation of democracy.