NEWS ANALYSIS: Constitutional Court battles to deliver

We are now into the second quarter of 2024, and the Constitutional Court has yet to hand down any judgments.

From a survey of the law reports, the court’s late start is unprecedented. Usually, within the first two months of the year, the business of the court in deciding consequential matters is well under way. By this time last year, the court delivered 10 judgments, and at least 13 the year before.

In at least 15 cases, judgment has been pending since last year. Eight of those have been reserved for six months or longer. Many litigants have been waiting anxiously for the court’s decision for months, and the backlog is growing.

For court watchers, this seeming paralysis is as baffling as it is worrying. Concern about the court’s efficiency has been mounting for some time. A recent UCT study shows that from 2010 to 2021 the time the court took to hand down judgment effectively doubled. This trend tracked a parallel rise in the number of applications made to the court in that period.

Judges of the court have admitted that the caseload is placing its systems under strain. And, to his credit, chief justice Raymond Zondo openly acknowledged the problem. But plans to address it haven’t inspired confidence.

The court tweaked its internal procedures for deciding new applications, but this does not seem to have borne fruit (though this is difficult to assess fully since information on the time taken to decide applications isn’t easily accessible). A recent scheme to co-opt retired judges in processing new cases was abandoned recently after criticism.

Another measure proposed received less public attention. In a recent judgment, the chief justice indicated that in some cases, considering the court’s workload challenges, the judges may not write a judgment after a hearing. Instead, a matter may be dismissed through a short “statement” of reasons. While the court regularly dismisses applications in chambers without a published judgment, it would be a novelty for cases set down for full hearings. After all, if a matter is considered important enough to be placed on the court’s roll, one would assume it at least deserves a reasoned opinion.

Expedited processes

More generally, we should be cautious about how and when such expedited processes are used. As legal academic Steven Vladeck shows in The Shadow Docket, the use of expedited decision-making procedures by the US Supreme Court has led to worrying trends whereby consequential matters are decided through dubious orders, without a hearing and without full reasons (in some cases, the orders aren’t even signed by the judges).

While we shouldn’t rush to draw uncritical parallels with the US system, one recent case merits our concern.

In Rivonia Circle NPC v President of SA, the applicants brought an urgent application challenging the constitutionality of the legislated signature requirements for unrepresented political parties. The case is obviously important, with high stakes for the coming general election. Surprisingly, the court elected to dismiss the matter without holding a hearing and without issuing a full judgment. Instead, an order was issued from chambers (about two months after the application was filed).

Reasons for the dismissal were set out in a short paragraph. Moreover, there was a dissent — possibly a first for an order issued in chambers. The order recorded that acting justice David Bilchitz was of the view that “because of the very important fundamental rights implicated in this case” the matter should have been enrolled, heard and adjudicated.

Our issue here is not with the outcome in the case, but the process by which the court went about deciding it, even if motivated by the best of intentions. Former justice Kate O’Regan once famously described the role of the apex Court as a “forum for public debate” and that this role “carries with it a conception of democracy, which requires the exercise of power to be accountable”. This democracy and accountability reinforcing role of the court is diminished when debate and disagreement are sacrificed at the altar of efficiency — more so when the court has yet to demonstrate any gains in that direction.

Structural changes

Structural changes are needed to ensure the efficient administration of justice and uphold the court’s role as a forum for reason. These twin goals shouldn’t be viewed as trade-offs; they are complementary. Together they can enhance the legitimacy of the court and deepen the quality of our democracy.

While the chief justice must undoubtedly take the lead in driving necessary reforms, all members of the court will need to play a role. In this context, one hopes that when the Judicial Service Commission meets this week, it will not only take into account the track record of judicial candidates for the apex bench, but also that of the court itself.

Nurina Ally is director of the Centre for Law & Society and senior lecturer in the Department of Public Law, University of Cape Town. Mbekezeli Benjamin is research and advocacy officer at Judges Matter, a project of the Democratic Governance and Rights Unit at UCT Law Faculty that monitors the judiciary in SA.