- Freedom Under Law reports that the Constitutional Court’s workload has tripled since 2010.
- The organisation warns that long delays and growing backlogs are putting public trust in the judiciary at risk.
- Proposed solutions include smaller judicial panels, stricter appeal procedures, and changes to the structure of the apex court.
South Africa’s Constitutional Court is under increasing strain, with its ability to fulfil its constitutional duties now at risk.
This is according to a new report from Freedom Under Law, which details how rising appeals, a growing backlog of cases, and outdated processes are putting the country’s highest court under severe pressure.
The report, titled A Review of the Constitutional Court’s Jurisdiction and Operating Practices in Light of its Increased Workload and Consequential Delays, finds that the number of annual applications to the Constitutional Court has more than tripled since 2010.
The court now receives nearly 400 applications each year. At the same time, the wait between hearings and judgments has more than doubled over the past decade. Applications for leave to appeal can stay unresolved for months.
Freedom Under Law says these issues go beyond simple administrative delays and now threaten the court’s ability to act as the final guardian of the Constitution and the rule of law.
Judith February, Executive Officer at Freedom Under Law, says, “How the court functions is a critical concern for South Africa’s constitutional democracy. As the country’s highest court, it sets legal principles for all other courts and can strike down legislation or government actions.”
She adds, “If the court cannot fulfil its role as the ultimate guardian of the rule of law, the consequences reach far beyond lawyers and judges. The court’s rising workload, combined with old systems and structural limits, is making it harder to handle cases efficiently and on time. If judgments are delayed and the court seems unable to cope, public confidence in the judiciary itself may start to erode.”
Freedom Under Law identifies two main causes: the sheer volume of work and the way the court operates. The court’s powers were expanded more than a decade ago, but its structure and procedures have barely changed.
Currently, every application for leave to appeal must be considered by all 11 justices, with at least eight judges needed for even preliminary decisions. The report argues that this approach is now unsustainable as the workload increases.
Delays, backlogs and speculative appeals
The report also looks at how the court decides whether to grant leave to appeal, using the “interests of justice” test. Freedom Under Law argues that this test is too open-ended, which encourages speculative appeals because lawyers cannot easily predict when the court will grant leave.
Research in the report shows that the time between hearings and judgments rose sharply between 2010 and 2021 and has held steady at about 210 days since then.
It also notes that petitions for leave to appeal are now taking even longer to process. In 2012, a case in chambers took an average of 33 days. By 2024, at least half of all petitions will remain undecided for six months or more, even though many are eventually dismissed quickly.
Freedom Under Law warns that such delays are affecting the court’s ability to deal promptly with important constitutional matters.
This report comes amid rising public concern over delays at the Constitutional Court, including debate in 2024 about using retired justices to help process applications. Former Chief Justice Raymond Zondo explained that this was due to a “huge increase” in applications after the court’s powers were expanded.
Proposed reforms to restore efficiency
Freedom Under Law compared South Africa’s Constitutional Court with similar courts in Germany, Canada, the UK, the US, Singapore, Australia, and India. Many of these courts use smaller panels of judges, professional screening systems, and stricter procedures to manage large caseloads.
The report suggests changes that could be made in the short, medium, and long term. In the short term, recommendations include page limits for applications, a more rules-based approach to the “interests of justice” test, and providing reasons when leave to appeal is refused.
Medium-term proposals involve using smaller panels for new applications before matters go to the full bench. Long-term reforms include creating separate chambers in the Constitutional Court for different types of cases, merging the Constitutional Court and the Supreme Court of Appeal into one apex court, or limiting the court’s powers through constitutional amendment.
Chris Oxtoby, research consultant for Freedom Under Law, says, “The court’s authority depends not only on the quality of its judgments, but also on its ability to decide matters promptly, predictably and transparently. South Africa cannot afford an apex court that is overwhelmed and increasingly unable to perform its constitutional function.”
Freedom Under Law says the purpose of its report is to start a serious national discussion about how to protect the effectiveness, legitimacy, and constitutional role of the Constitutional Court.
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