Delays at Constitutional Court Undermine Public Confidence in Justice System

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JEREMY MAGGS: The Constitutional Court of South Africa is facing increased pressure amidst a report from Freedom Under Law highlighting issues such as soaring case numbers, growing delays, and outdated practices that jeopardize the court’s vital role in maintaining the rule of law. Since 2010, applications have surged more than threefold.

There is a significant delay in delivering judgments, and Freedom Under Law argues that without substantial reform, public trust in this apex court could diminish.

This is indeed a troubling matter. I am currently speaking with Chris Oxtoby, a research consultant at Freedom Under Law. Chris, welcome. Would you say it’s an exaggeration to claim that the Constitutional Court is in a crisis, or is this a fair assessment of the current situation?

CHRIS OXTOBY: I think it’s crucial to be cautious before labeling it as a crisis. However, based on the concerns you’ve raised, we can clearly see significant challenges facing the court.

The recent delays in the Phala Phala judgment have attracted significant public scrutiny and concern, underscoring the importance of an efficient and effective top court.

I would categorize it as a type of crisis since this is a long-standing problem without an apparent resolution.

JEREMY MAGGS: Your observation about the long-term issues is noteworthy. The report mentions that applications have more than tripled since 2010, which I think is accurate.

In your opinion, was the pressure on the court anticipated when it expanded its jurisdiction? Or did policymakers fail to consider the implications?

CHRIS OXTOBY: To some degree, it was foreseeable. Initially, the court’s jurisdiction was limited to constitutional matters, but it was later broadened to encompass general jurisdiction beyond just constitutional issues.

At the time, there were submissions highlighting the disparity between the workloads of the Constitutional Court and the Supreme Court of Appeal, indicating that the Constitutional Court could anticipate an increased workload.

Former Chief Justice Raymond Zondo noted that when the court’s jurisdiction was expanded, there was a lack of measures to enhance its capacity, such as adding more judges or resources.

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

This is a complex issue, and it seems as though policymakers have given the court a challenging scenario.

While the court can implement certain internal changes, it may also require higher-level policy interventions to address the underlying issues effectively.

JEREMY MAGGS: Regarding the proposed reforms, you mention the establishment of smaller screening panels and tighter procedural rules. While these may seem reasonable, don’t they risk making access to the highest court more difficult for economically disadvantaged litigants?

CHRIS OXTOBY: That is indeed a valid concern.

This situation reflects broader issues within the entire justice system, which will also affect courts lower in the hierarchy.

The apex court is ideally positioned to take on cases that have been refined through the judicial system, addressing clear legal issues due to its ultimate authority.

Accessibility is an important consideration.

However, given the current predicament where the court struggles to deliver judgments promptly, and is inundated with applications for leave to appeal, this does not serve accessibility either.

Ultimately, if the court operates more effectively and practitioners have clarity regarding the circumstances under which the court will accept an appeal, it will enhance access and ensure more favorable outcomes for litigants.

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

This indicates that the issue may be too severe for simple tweaks around the edges.

CHRIS OXTOBY: Absolutely, there is that concern. We’ve intentionally categorized the suggested reforms into both short-term initiatives, which can be implemented relatively easily, and more extensive, structural changes.

For instance, the court can swiftly introduce directives regarding the length of filings. These adjustments are within the court’s capacity to execute promptly.

The court can begin writing judgments to clarify how it will apply established tests and when it may refuse appeals; these can all be done fairly quickly.

While these measures may help, whether they are sufficient to resolve the entire situation is still uncertain.

As for the identified long-term reforms, such as fundamental structural changes, these will naturally require more time and potentially constitutional amendments.

JEREMY MAGGS: In closing, taking into account real-world consequences, if applications for leave to appeal can remain unresolved for months, it severely impacts litigants, businesses, and governmental decisions that require quick resolutions within this volatile political and social context.

CHRIS OXTOBY: Absolutely. Our report suggests litigants could face an average of one and a half years from filing an application for leave to appeal until receiving a final judgment.

In many situations, such lengthy delays can be highly problematic, particularly concerning financial matters and business continuity.

This is a significant practical concern, which ultimately affects public confidence and trust in the judiciary, not just the Constitutional Court.

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