Delays at Constitutional Court Erode Public Trust in Justice System

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JEREMY MAGGS: The Constitutional Court of South Africa is under growing scrutiny, as highlighted by a report from Freedom Under Law that points to rising caseloads, increasing delays, and outdated practices threatening the court’s essential role in upholding the rule of law. Since 2010, the volume of applications has more than tripled.

With the growing delay in delivering judgments, Freedom Under Law asserts that without significant reforms, public confidence in this supreme court could wane.

This is a concerning issue. I’m currently in conversation with Chris Oxtoby, a research consultant at Freedom Under Law. Chris, welcome. Would you consider it an exaggeration to say the Constitutional Court is experiencing a crisis, or is this a reasonable portrayal of the current state?

CHRIS OXTOBY: It’s important to be cautious about labeling it a crisis. Nevertheless, the issues you’ve pointed out highlight real challenges for the court.

The recent delays in the Phala Phala judgment have drawn considerable public attention and concern, emphasizing the need for a competent and effective apex court.

I would classify this situation as a form of crisis, as it relates to longstanding issues without a clear solution in sight.

JEREMY MAGGS: Your remarks on the enduring challenges are significant. The report states that applications have tripled since 2010, which resonates as accurate.

In your view, was the strain on the court anticipated when its jurisdiction expanded? Or did lawmakers neglect to consider the potential outcomes?

CHRIS OXTOBY: To some extent, it was expected. Initially, the court’s jurisdiction was confined to constitutional matters, but it eventually extended to a broader range of issues.

During that transition, submissions flagged an imbalance between the caseloads of the Constitutional Court and the Supreme Court of Appeal, indicating that an increased workload was foreseeable.

Former Chief Justice Raymond Zondo pointed out that when the jurisdiction expanded, there weren’t adequate measures to boost the court’s capacity, such as adding judges or resources.

However, the court could still adopt internal reforms, like stricter criteria for deciding whether to take on appeals in the interests of justice.

This presents a complex challenge, suggesting policymakers have put the court in a difficult position.

While the court can make certain internal adjustments, effective resolution of the fundamental challenges may require higher-level policy actions.

JEREMY MAGGS: Regarding proposed reforms, you mention creating smaller screening panels and stricter procedural norms. While these might seem reasonable, do they risk hindering access to the highest court for economically disadvantaged litigants?

CHRIS OXTOBY: That’s certainly a valid concern.

This situation mirrors broader challenges within the entire justice system, which will also affect lower courts.

The apex court is ideally suited to handle cases refined through the judicial hierarchy, dealing with clear legal questions due to its supreme authority.

Accessibility is a critical factor.

But, given the current struggles with timely judgment delivery and overwhelming appeal applications, this situation does not enhance accessibility either.

Ultimately, if the court operates more efficiently and practitioners understand the circumstances under which appeals will be accepted, it will promote access and better outcomes for litigants.

JEREMY MAGGS: You also advocate for substantial changes, including separate chambers and potential integration of the Constitutional Court with the Supreme Court of Appeal, or narrowing the court’s jurisdiction through policy or constitutional modifications.

This suggests that the issues may be too critical for minor adjustments.

CHRIS OXTOBY: Absolutely, that’s an important point. We’ve intentionally categorized the proposed reforms into short-term initiatives, which can be implemented swiftly, and comprehensive structural changes.

For example, the court can quickly introduce guidelines about the duration of filings. These adjustments can be executed promptly within the court’s framework.

The court can start crafting judgments to clarify how it will apply established criteria and the conditions under which it may deny appeals; these steps can be undertaken relatively quickly.

While these measures might help, whether they will suffice to address the entire situation remains to be seen.

As for the proposed long-term reforms, which involve foundational structural changes, these will inevitably take more time and may require constitutional amendments.

JEREMY MAGGS: In conclusion, considering real-world repercussions, the fact that applications for leave to appeal can remain unresolved for months severely affects litigants, businesses, and governmental actions requiring quick resolutions within this dynamic political and social environment.

CHRIS OXTOBY: Absolutely. Our report indicates that litigants might endure an average wait of one and a half years from submitting an application for leave to appeal to receiving a final judgment.

In many cases, such extensive delays can be deeply problematic, particularly concerning financial matters and the continuous flow of business.

This is a serious practical issue that ultimately undermines public trust and confidence in the judiciary, not solely in the Constitutional Court.

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