Prolonged Delays at Constitutional Court Erode Public Trust in Justice System

https://iframe.iono.fm/e/1677405?layout=modern

You can also access this podcast on iono.fm here.

JEREMY MAGGS: The Constitutional Court of South Africa is under mounting pressure, as highlighted by a report from Freedom Under Law that points to soaring case numbers, increasing delays, and obsolete practices that threaten the court’s crucial role in upholding the rule of law. Since 2010, applications have grown more than threefold.

There are significant delays in delivering judgments, and Freedom Under Law asserts that without meaningful reform, public trust in this highest court could decline.

This is indeed concerning. I’m currently speaking with Chris Oxtoby, a research consultant at Freedom Under Law. Chris, welcome. Would you consider it an exaggeration to say that the Constitutional Court is in crisis, or is this a fair evaluation of the situation?

CHRIS OXTOBY: It’s vital to proceed with caution before labeling it as a crisis. However, based on the concerns raised, it is evident that the court faces substantial challenges.

The recent delays surrounding the Phala Phala judgment have drawn considerable public attention and concern, highlighting the need for an efficient and effective apex court.

I would categorize it as a kind of crisis, since this is a persistent issue without a clear resolution in sight.

JEREMY MAGGS: Your point about the long-standing issues is significant. The report indicates that applications have more than tripled since 2010, which seems accurate.

Do you think the increased pressure on the court was anticipated when its jurisdiction was broadened? Or did policymakers overlook the implications?

CHRIS OXTOBY: To a certain extent, it was predictable. Initially, the court’s jurisdiction was confined to constitutional matters, but it was later expanded to include general jurisdiction beyond just constitutional issues.

Submissions at that time indicated the imbalance between the workloads of the Constitutional Court and the Supreme Court of Appeal, suggesting that the Constitutional Court could foresee a heavier workload.

Former Chief Justice Raymond Zondo pointed out that when the court’s jurisdiction was expanded, there were no strategies implemented to bolster its capacity, such as adding more judges or resources.

There are also internal measures the court might take, such as establishing stricter criteria to assess whether it is in the interests of justice to hear appeals.

This is a multifaceted issue, indicating that policymakers have placed the court in a challenging position.

While the court can adopt certain internal reforms, it may also need higher-level policy changes to effectively tackle the foundational issues.

JEREMY MAGGS: Regarding the proposed reforms, like the setup of smaller screening panels and tighter procedural rules, while these seem reasonable, don’t they pose a risk of making access to the court more difficult for economically disadvantaged litigants?

CHRIS OXTOBY: This is indeed a valid concern.

This issue reflects broader challenges within the entire justice system, impacting lower courts as well.

The apex court is ideally suited to handle cases that have been refined through the judicial system, addressing significant legal issues due to its ultimate authority.

Accessibility remains a critical consideration.

However, in the current situation where the court struggles to deliver judgments promptly and is overwhelmed with applications for leave to appeal, this does not facilitate accessibility either.

If the court operates more efficiently and practitioners are clear about the conditions under which appeals will be accepted, it will enhance access and lead to better outcomes for litigants.

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

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

CHRIS OXTOBY: Absolutely, that is a concern. We’ve deliberately categorized the suggested reforms into both short-term initiatives that can be deployed swiftly, and broader structural overhauls.

For instance, the court can quickly introduce directives regarding filing lengths. These are changes within the court’s immediate capability.

The court can start drafting judgments to clarify how it will apply established criteria and when it might refuse appeals; these actions can be executed relatively quickly.

While such measures may provide some relief, whether they will be adequate to resolve the entire situation remains uncertain.

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

JEREMY MAGGS: In conclusion, considering real-world implications, if applications for leave to appeal remain unresolved for months, it severely affects litigants, businesses, and governments needing rapid resolutions in this volatile political and social climate.

CHRIS OXTOBY: Indeed. Our report suggests that litigants might face an average of one and a half years from submitting an application for leave to appeal to receiving a final judgment.

Such lengthy delays can be extremely problematic, especially in relation to financial matters and business continuity.

This is a substantial practical issue, ultimately impacting public confidence and trust in the judiciary, not solely the Constitutional Court.

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