SKWEYIYA J
bearing “not only . . . the right to intervene in order to prevent [a] violation of the
Constitution, but also . . . the duty to do so.”10 The discharge of this solemn duty
necessarily entails the exercise of broad powers. However, in Doctors for Life this
Court recognized:
“Courts must be conscious of the vital limits on judicial authority and the
Constitution’s design to leave certain matters to other branches of government. They
too must observe the constitutional limits of their authority. This means that the
judiciary should not interfere in the processes of other branches of government unless
to do so is mandated by the Constitution.”11
The consideration of constitutional issues in vacuo is typically entrusted to the
legislature. This is so both because of the legislature’s democratic legitimacy and also
because of the particular competence of that branch of government in addressing
polycentric issues.
[222] It follows, then, that the core responsibility of the judiciary is to resolve live
disputes on the basis of evidence presented by opposing parties. Indeed, this Court in
Zantsi, relying on the decision of the Supreme Court of Canada in Borowski v
Canada, set out the rationale for this as follows:
“First, in an adversary system, issues are best decided in the context of a live
controversy. The second consideration is based on concern for judicial economy and
the last is that it is generally undesirable and possibly an intrusion into the role of the
10
Glenister v President of the Republic of South Africa and Others [2008] ZACC 19; 2009 (1) SA 287 (CC);
2009 (2) BCLR 136 (CC) at para 33.
11
Doctors for Life International v Speaker of the National Assembly and Others [2006] ZACC 11; 2006 (6) SA
416 (CC) at para 37; 2006 (12) BCLR 1399 (CC) at 1417D-E, cited with approval in Glenister above n 10 at
para 34.
112
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