This chapter has two parts. The first part investigates how the Party controls courts. It finds that the Party maximizes its political control over judicial affairs by normalizing its political prerogative in judicial decision-making. The normalization process takes two steps. First, all judges within a court are embedded in a chain of command—from Party leaders to court leaders, divisional heads, and frontline judges—tasked with processing and translating political directives into partial judicial outcomes that serve Party-state interests when needed. The legality of these demands or their immunity from legal scrutiny is derived from the Party’s political prerogative. This practice is then replicated across all courts and among all judges nationwide. The second part of this chapter analyzes reported cases of judicial corruption to identify what has caused the spread of judicial corruption. It concludes that the root cause is the very normalization of the Party’s political prerogative. Because this prerogative is inherently arbitrary and vulnerable to abuse, its institutionalization creates systemic opportunities for corruption across the political-legal apparatus. As a result, what begins as political control ultimately facilitates the pervasive spread of judicial corruption.

This chapter seeks to explain the recurrence of judicial corruption despite waves of reforms. To that end, I track major reforms launched by the Supreme People’s Court (SPC) over past decades and find a pattern: Most of them revolved on redistribution of judicial decision-making power. Instead of confronting the issue of institutionalized judicial partiality caused by normalized political prerogative, these reforms were designed to divide, centralize, decentralize, and recentralize judicial decision-making power. Since these measures are not geared to eliminate judicial partiality, they work best in redistributing rather than uprooting corruption. Recent reforms made efforts to set boundaries for the exercise of political prerogatives by banning “improper” interference while retaining “proper” interference. The reform may lift the costs of corruption, thereby reducing but not eliminating it, because the power that is most prone to corruption is the one that is entitled to “proper” interference. In the last section, I use a recent SPC scandal to expose the limits of the current judicial reforms and to illustrate the reach and the entrenchment of the prerogative-based judicial interference power.

In relation to foreign relations, South African courts have traditionally tended not to interfere with the executive. In the time before the democratic constitutional dispensation, foreign affairs was regarded as a prerogative of the executive on which the judiciary could not adjudicate. In the post-democratic dispensation, courts have held all exercise of public power, including in foreign relations, to be subject to judicial scrutiny. Yet, even then, a wide margin of discretion has been extended foreign affairs. In more recent years courts appear to be pulling back on the margin of discretion. This chapters reviews the recent jurisprudence of the South African Constitutional Court in matters relating to foreign relations and assesses the erosion of the discretion of the executive in foreign relations and whether this means the emergence of the judiciary in foreign relations.