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JEREMY MAGGS: The Constitutional Court of South Africa is currently under increased strain, as detailed in a report by Freedom Under Law, which raises concerns about rising case numbers, extended delays, and antiquated practices that threaten the court’s essential role in upholding the rule of law. Since 2010, the number of applications has increased more than threefold.

Delays in delivering judgments are substantial, and Freedom Under Law warns that without major reforms, public confidence in this highest court could wane.

This situation is indeed alarming. I’m now speaking with Chris Oxtoby, a research consultant at Freedom Under Law. Chris, welcome. Would you say it’s an overstatement to declare that the Constitutional Court is in a crisis, or is this a fair depiction of the current landscape?

CHRIS OXTOBY: It’s essential to tread carefully before labeling it a crisis. However, the concerns you’ve mentioned do highlight significant challenges confronting the court.

The recent delays regarding the Phala Phala ruling have drawn considerable public attention and concern, emphasizing the need for an efficient and effective apex court.

I would classify it as a form of crisis, as this is a persistent issue without a clear solution.

JEREMY MAGGS: Your point about these enduring issues is significant. The report notes that applications have more than tripled since 2010, which seems quite accurate.

What’s your take on whether the pressure on the court was anticipated when it broadend its jurisdiction? Did policymakers overlook the potential repercussions?

CHRIS OXTOBY: To some extent, it was predictable. Initially, the court’s jurisdiction was limited to constitutional issues, but it later expanded to cover a broader range of matters.

Submissions at that time highlighted the workload disparity between the Constitutional Court and the Supreme Court of Appeal, suggesting that the Constitutional Court could foresee an increased burden.

Former Chief Justice Raymond Zondo pointed out that the court’s jurisdiction was expanded without adding measures like more judges or resources to handle the increased load.

Nevertheless, there are internal adjustments the court could make, such as establishing stricter criteria for when it is in the interest of justice to hear appeals.

This is a complicated issue, indicating that policymakers have placed the court in a difficult position.

While the court can adopt certain internal reforms, broader policy changes may be needed to effectively tackle the root problems.

JEREMY MAGGS: Concerning the proposed reforms, such as setting up smaller screening panels and stricter procedural rules, do these not risk making it harder for economically disadvantaged litigants to access the highest court?

CHRIS OXTOBY: That is indeed a legitimate concern.

This scenario highlights broader systemic issues within the justice system, which will also influence lower courts.

The apex court is ideally suited to handle cases that have been filtered through the judicial system and address clear legal issues, given its ultimate authority.

Accessibility is a crucial factor.

Yet, the current situation, where the court struggles to deliver judgments on time and is overwhelmed with applications, does not enhance accessibility either.

If the court operates more efficiently and practitioners understand the criteria for accepting appeals, it will boost access and lead to more favorable outcomes for litigants.

JEREMY MAGGS: You also suggest significant reforms, such as creating separate chambers, amalgamating the Constitutional Court and Supreme Court of Appeal, or refining the court’s jurisdiction through policy or constitutional changes.

This seems to indicate that the issue may require more than just minor adjustments.

CHRIS OXTOBY: Absolutely, that is a major concern. We’ve made a deliberate distinction between short-term solutions that can be quickly implemented and more extensive structural reforms.

For instance, the court can promptly introduce guidelines on the length of filings. These changes are manageable within the court’s immediate capabilities.

The court can start drafting judgments that clarify how it will apply established tests and when it may reject appeals; these are all actions that can be taken swiftly.

While these measures might help, it remains unclear if they will fully resolve the broader situation.

As for the long-term reforms, such as fundamental structural changes, these will require more time, and potential constitutional adjustments.

JEREMY MAGGS: In conclusion, considering the real-world implications, if applications for leave to appeal remain unresolved for months, it can drastically affect litigants, businesses, and government decisions that require swift resolutions amidst a volatile political and social climate.

CHRIS OXTOBY: Absolutely. Our report indicates that litigants might experience an average of one and a half years between filing an application for leave to appeal and receiving a final judgment.

In many instances, such lengthy delays can present serious challenges, especially regarding financial matters and business continuity.

This is a considerable practical issue, ultimately impacting public confidence and trust in the judicial system, not just the Constitutional Court.

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