Constitutional Court: Where are the judgments?


By Nurina Ally and Mbekezeli Benjamin, GroundUp

The second quarter of the year has already begun and the Constitutional Court has not yet delivered a single ruling.

An examination of court records shows that this court, the country’s highest court, has had an unprecedented slow start this year.

The Constitutional Court usually delivers judgments in decisive cases within the first two months of the year and should have been well under way by this time.

At the same time last year, the Constitutional Court had already delivered ten judgments in the first few months. The year before that, in the same period, at least 13 verdicts were delivered.

In at least 15 cases, judgment has been pending since last year. In eight cases, judgment has been reserved for more than six months.

There are numerous litigants who have been anxiously waiting for the court’s verdict for months – and in the meantime the backlog is getting bigger.

For those who keep a close eye on the courts, the situation is not only baffling, but alarming. Concerns about the effectiveness of the Constitutional Court have been increasing for some time.

A recent investigation by the University of Cape Town has shown that the time it takes the court to deliver a judgment has more than doubled from 2010 to 2021.

This tendency showed a parallel increase with the number of applications submitted to the court in this period.

Judges of the court themselves have also admitted that the workload puts the system under great pressure.

Chief Justice Raymond Zondo even, to his credit, openly acknowledged the problem.

However, the plans to deal with the situation do not inspire much confidence. The court adapted its internal procedures to decide on new applications, but without significant success. It is indeed difficult to make a proper assessment, because the information on how long it takes to decide on new applications is not readily available.

A recent plan to use retired judges to help deal with new cases was also abandoned after it drew criticism.

Another suggestion was that judges give a shortened statement of reasons in cases where an application is rejected. The court regularly delivers such judgments behind closed doors where applications are rejected without a published judgment being delivered.

However, it would be a novelty to deliver judgments in this way in applications that have been placed for a full hearing. Care must therefore be taken as to which applications will receive such summary judgments.

Structural change within the Constitutional Court is therefore important to ensure that justice continues to be done.

The chief justice will actually have to take the lead here, but other role players in the court will also have to do their part.

Therefore, it can only be hoped that when the Judicial Service Commission meets this week, it will not only consider the record of applicants to the judiciary, but will also take into account the interests of the Constitutional Court.

Nurina Ally is the director of the Center for Law and Society and a senior lecturer at the University of Cape Town. Mbekezeli Benjamin is a research and awareness officer at Judges Matter.

  • This report was originally posted on GroundUp and is used with permission.