In politics, power always pushes against its fences. Courts, which exist to remind it where the boundaries are, are not institutions of popularity but of restraint. And when executives push too far, the judiciary remains the last institution capable of drawing the line.
That is why the recent court battles in the US and South Africa matter so much. In Washington, President Donald Trump’s tariff push tested statutory limits. In Pretoria, the Phala Phala matter tested whether the presidency can still be subjected to impartial scrutiny.
In both cases personality shaped how the disputes unfolded. Trump’s approach was direct and confrontational; he was treating tariffs as an extension of executive leverage and testing the outer limits of statutory authority. President Cyril Ramaphosa’s response was more procedural, as the matter moved through established investigative and parliamentary channels. But in both cases the institutional question was the same: whether constitutional systems still have the strength to discipline power.
Tariffs are usually discussed as trade policy, though they are also a test of institutional order. The US courts have not merely trimmed the edges of Trump’s tariff agenda, they have drawn clearer legal boundaries around it.
The first constraint related to reciprocal tariffs imposed under the International Emergency Economic Powers Act. Judges found that the US administration had stretched the statute beyond its intended scope. A subsequent challenge to tariffs justified under Section 122 of the Trade Act of 1974 met a similar response, with the US Court of International Trade ruling that the statute did not support the manner in which the duties had been imposed.
The courts’ responses mattered because they restored a basic principle: even a powerful president must act within the law. If executive power can expand simply because it is assertive enough, legal predictability begins to erode, and that is precisely the kind of uncertainty that investors dislike and democracies should fear.
The significance of courts is not uniquely American or South African, however. Around the world, strong judiciaries have repeatedly acted as institutional brakes when politics became too permissive of power. India’s supreme court has, at key moments, insisted that public office does not shield corruption from scrutiny. Colombia’s constitutional court has also blocked attempts to extend presidential tenure beyond constitutional limits.
Even the highest political office remains subject to lawful scrutiny, regardless of political expediency
Judicial independence becomes most difficult to defend precisely when accountability risks unsettling political stability or a preferred outcome. It is relatively straightforward to support courts when they are seen to be checking leaders who are widely viewed as disruptive or politically polarising. It becomes more complicated when the individuals under scrutiny are viewed, rightly or wrongly, as part of a more acceptable or stabilising political order. But constitutional systems cannot apply different standards depending on political convenience. Their credibility depends on consistency, even when the outcome feels uncomfortable.
South Africa’s Constitutional Court has once again demonstrated how institutional accountability operates in practice. Reflecting the country’s post-transition constitutional design aimed at preventing executive overreach, the court found that in the Phala Phala matter parliament’s 2022 decision to reject a Section 89 independent panel report into the theft of foreign currency from Ramaphosa’s farm was irrational and unconstitutional. This ruling, too, underscored the core constitutional principle that even the highest political office remains subject to lawful scrutiny, regardless of political expediency.
Yet, as in the US, judicial authority does not operate in the context of unchallenged public trust. While South Africa’s courts remain relatively well regarded compared with other branches of the state, surveys such as Afrobarometer have pointed to a gradual erosion of confidence in it since the mid-2010s, reflecting concerns about delays, inconsistency and perceived political proximity in high-profile cases.
Once the public concludes that elites live under a different legal code, institutional legitimacy starts to fray. That is politically dangerous, but it is also economically costly. When judicial independence weakens, risk premiums rise; when it is upheld, democracies become more governable and markets more legible.
South Africa is a useful case study. The country has lived through state capture, failing municipalities, infrastructure decay and deep scepticism about public institutions. Yet the judiciary has held up better than most arms of the state. Its legitimacy is not immune to erosion, but it still stands above parliament, the parties and much of the executive in public confidence.
Trump’s tariffs issue and the Phala Phala matter illustrate a common democratic reality: that unchecked power expands until courts restrain it. South Africa still retains a constitutional system capable of imposing this restraint. Elections choose leaders, but courts ensure they remain bound by the law. That is the difference between democratic choice and the erosion of constitutional order.
Packirisamy is group economist at Momentum Group
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