Delays at Constitutional Court Erode Public Trust in Justice System

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JEREMY MAGGS: The Constitutional Court of South Africa is experiencing mounting pressure following a report from Freedom Under Law. The report emphasizes troubling issues such as escalating case volumes, increasing delays, and outdated practices that threaten the court’s critical role in upholding the rule of law. Since 2010, the number of applications has risen over threefold.

There is a notable delay in judgment delivery, and Freedom Under Law warns that without significant reforms, public confidence in this highest court could wane.

This is indeed a concerning issue. I’m presently in conversation with Chris Oxtoby, a research consultant at Freedom Under Law. Chris, welcome. Do you believe it’s an exaggeration to say the Constitutional Court is in crisis, or is this an accurate reflection of the current state?

CHRIS OXTOBY: It’s essential to tread carefully before labeling it as a crisis. However, your concerns highlight evident challenges that the court is facing.

The recent delays surrounding the Phala Phala judgment have drawn intense public scrutiny, underscoring the necessity for an efficient and effective apex court.

I would classify it as a form of crisis because these longstanding issues lack visible solutions.

JEREMY MAGGS: Your note about persistent challenges is significant. The report indicates a tripling of applications since 2010, which appears correct.

In your view, was the growing pressure on the court foreseeable when it broadened its jurisdiction? Did policymakers overlook potential implications?

CHRIS OXTOBY: To some extent, it was anticipated. Initially, the court’s jurisdiction focused solely on constitutional matters but was later expanded to include a broader scope.

There were early warnings about the imbalanced workloads between the Constitutional Court and the Supreme Court of Appeal, indicating that the Constitutional Court would likely face a heavier workload.

Former Chief Justice Raymond Zondo pointed out that the expansion of the court’s jurisdiction occurred without corresponding measures to increase its capacity, such as appointing more judges or enhancing resources.

Nevertheless, the court could still adopt internal strategies, like establishing stricter criteria to evaluate whether it is in the interest of justice to hear appeals.

This is a multifaceted problem, and it appears policymakers have set the court up for a challenging situation.

While the court has the potential to implement internal reforms, it may also need high-level policy interventions to properly address the foundational issues.

JEREMY MAGGS: Concerning the suggested reforms, you talk about the creation of smaller screening panels and tighter procedural rules. While these ideas seem reasonable, do they not complicate access to the highest court for economically disadvantaged litigants?

CHRIS OXTOBY: That is a legitimate concern.

This concern mirrors broader issues within the entire justice system, which will likewise impact lower courts.

The apex court is ideally suited to address cases refined through the judicial system, tackling explicit legal issues due to its supreme authority.

Accessibility remains a crucial factor.

However, given the current situation where the court is struggling to issue timely judgments and is overwhelmed with applications for leave to appeal, this doesn’t support accessibility.

If the court operates more efficiently and practitioners understand the conditions under which an appeal will be accepted, it will ultimately improve access and lead to better outcomes for litigants.

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

This suggests that the issue may be too pressing for mere minor adjustments.

CHRIS OXTOBY: Exactly, that’s a valid concern. We have purposefully categorized the proposed changes into both short-term actions that can be implemented with relative ease and more extensive structural adjustments.

For instance, the court could immediately introduce directives regarding the length of filings—actions that are within its capacity to implement swiftly.

The court can begin drafting judgments to clarify how it will apply established tests and the circumstances under which it may refuse appeals; these can all be executed relatively quickly.

While these initiatives may help, it remains uncertain whether they will be sufficient to resolve the full extent of the situation.

Regarding the suggested long-term reforms, such as fundamental structural changes, these will inevitably require more time and may involve constitutional amendments.

JEREMY MAGGS: In conclusion, considering real-world implications, if applications for leave to appeal remain unresolved for extended periods, it significantly impacts litigants, businesses, and government decisions that need quick resolutions amid a volatile political and social environment.

CHRIS OXTOBY: Absolutely. Our report indicates that litigants could experience an average timeline of one and a half years from the filing of an application for leave to appeal to the issuance of a final judgment.

In numerous instances, such long delays can prove exceedingly problematic, especially regarding financial matters and the continuity of business operations.

These delays are a serious practical concern that ultimately affects public trust and confidence in the judiciary, extending beyond the Constitutional Court itself.

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