Hands on or hands off? The constitutional court's denial of a provincial municipal planning roleHabitat Council v Provincial Minister of Local Government, Western Cape 2013 6 SA 113 (WCC)Minister of Local Government, Western Cape v The Habitat Council (City of Johannesburg Metropolitan Municipality Amicus Curiae) 2014 5 BCLR 591 (CC) : regspraak

Abstract

judicialization of foundational nation-building processes, Hirschl writes, is common in fragmented polities facing deep ethnic, linguistic and religious cleavages that may result in political crises of ungovernability or threats of political breakdown (Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (2004) 172). Nation-building in this context includes the evolving allocation of legislative and executive authority amongst different spheres of government (Hirschl 183), and the judicialization of this process occurs when the players in government turn toward the courts as the major forum for settling disputes rather than solving them through political means. The recent flowering of jurisprudence on the interpretation of municipal planning in part B of schedule 4 to the constitution evidences the increasing judicialization of co-operative government and intergovernmental relations in South Africa, notwithstanding the constitution's direction that co-operation between the national, provincial and local spheres entails avoiding legal proceedings against one another (s 41(1)(h)(vi)).