Delays at the Constitutional Court Erode Public Trust in the Justice System

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JEREMY MAGGS: The Constitutional Court of South Africa is under mounting pressure, with a recent report from Freedom Under Law drawing attention to rising case numbers, increasing delays, and antiquated practices that threaten the court’s essential function in upholding the rule of law. Since 2010, there has been a substantial increase in applications, now more than threefold.

There is a noteworthy delay in judgment delivery, and Freedom Under Law warns that without significant reform, public confidence in this top court may wane.

This is indeed a concerning issue. Joining me is Chris Oxtoby, a research consultant at Freedom Under Law. Chris, welcome. Would you say that labeling the Constitutional Court as being in a crisis is an exaggeration, or is this an accurate reflection of the current state?

CHRIS OXTOBY: It’s important to be cautious before describing it as a crisis. Nevertheless, based on the concerns you’ve highlighted, it is evident that significant challenges confront the court.

The recent delays regarding the Phala Phala judgment have drawn substantial public attention and concern, emphasizing the need for a prompt and effective apex court.

I would refer to it as a type of crisis since this has been a long-standing issue without a clear solution in sight.

JEREMY MAGGS: Your insight regarding the enduring challenges is critical. The report notes that applications have increased more than threefold since 2010, which appears to be accurate.

In your perspective, was the increased pressure on the court anticipated with its jurisdictional expansion? Or did policymakers overlook the potential repercussions?

CHRIS OXTOBY: To some extent, it was foreseeable. Initially, the court’s jurisdiction focused solely on constitutional matters, but it was later expanded to general jurisdiction that includes matters beyond constitutional issues.

There were prior warnings indicating the disparity between the workloads of the Constitutional Court and the Supreme Court of Appeal, suggesting that the Constitutional Court could expect a heightened workload.

Former Chief Justice Raymond Zondo noted that when the court’s jurisdiction was broadened, there were no measures implemented to bolster its capacity, such as adding judges or resources.

However, the court could also adopt internal policy measures, such as setting stricter criteria for determining whether it is in the interests of justice to hear appeals.

This issue is intricate, suggesting that policymakers have placed the court in a challenging position.

While certain internal changes can be made, substantial policy interventions may also be essential for effectively addressing the root causes.

JEREMY MAGGS: Regarding the suggested reforms, you mention smaller screening panels and tighter procedural rules. While these seem reasonable, might they make access to the highest court more difficult for economically disadvantaged litigants?

CHRIS OXTOBY: This is indeed a legitimate concern.

This situation reflects broader issues across the entire justice system, which will also impact lower courts.

The apex court is ideally positioned to address cases that have been refined through the judicial process, tackling clear legal issues due to its ultimate authority.

Accessibility is a crucial element.

Yet, given the present situation where the court struggles to deliver judgments in a timely manner and faces a flood of applications for leave to appeal, this fails to facilitate accessibility.

Ultimately, if the court operates more efficiently and practitioners understand the conditions under which the court will accept an appeal, access will improve and lead to more favorable outcomes for litigants.

JEREMY MAGGS: You also suggest significant changes, including separate chambers and the possible integration of the Constitutional Court and the Supreme Court of Appeal, or narrowing the court’s jurisdiction through policy or constitutional changes.

This indicates that the issues may be too deeply rooted for simple adjustments.

CHRIS OXTOBY: Indeed, there is that concern. We’ve intentionally separated suggested reforms into immediate initiatives that can be implemented with relative ease and more comprehensive structural changes.

For example, the court can quickly introduce directives concerning the length of filings. These are manageable changes that the court can execute swiftly.

The court can begin drafting judgments to clarify how it will implement established tests and under what circumstances it might refuse appeals; these can all be executed fairly promptly.

While these actions may provide some relief, their sufficiency in resolving the broader issues remains uncertain.

The longer-term reforms identified, particularly those requiring fundamental structural changes, will naturally need more time and may involve constitutional amendments.

JEREMY MAGGS: In closing, considering the practical implications, if applications for leave to appeal remain unresolved for months, it significantly impacts litigants, businesses, and governmental decisions that need prompt resolutions amid a volatile political and social environment.

CHRIS OXTOBY: Absolutely. Our report indicates that litigants could endure an average of one and a half years from the application for leave to appeal until a final judgment is reached.

In many cases, such protracted delays are extremely problematic, especially concerning financial issues and business continuity.

This represents a significant practical issue, ultimately undermining public confidence and trust in the judiciary, not merely the Constitutional Court.

JEREMY MAGGS: Thank you, Chris Oxtoby, research consultant at Freedom Under Law, for your valuable insights.