Why South Africa’s Constitutional Court Is Overwhelmed
More Judges, Same Old System
Even though the court now has its full set of 11 judges, the workload keeps growing. The time it takes to go from a hearing to a verdict has more than doubled in the last ten years. Many applications for leave to appeal sit undecided for months, and the court’s conviction rate is slipping below its own targets.
What the Freedom Under Law Report Found
Freedom Under Law (FUL) released a report titled “A review of the jurisdiction and functioning of the Constitutional Court in light of its increased workload and the resulting delays.” The study shows that:
- The number of yearly applications has jumped from under 130 in 2010 to nearly 400 today.
- Administrative delays are only part of the problem; the court’s ability to act as the ultimate guardian of the rule of law is at risk.
- The court’s structure and procedures have not changed much since its jurisdiction was expanded over a decade ago.
Why Delays Matter
Judith February, Executive Director of FUL, stresses that the Constitutional Court shapes legal principles for the whole country. When judgments are delayed:
- Public confidence in the judiciary can start to erode.
- Uncertainty grows about whether laws and government actions will be checked effectively.
- The impact reaches beyond lawyers and judges, affecting everyday citizens.
Root Causes: Volume and Process
Volume
The court now hears far more cases than it was originally designed for, yet every application still needs to be reviewed by all eleven judges (or at least eight for preliminary decisions).
Process
Procedures remain largely unchanged, creating bottlenecks. There is no streamlined way to filter out cases that don’t need full‑court attention.
Possible Fixes
Short‑Term Steps
- Adopt a clearer, rules‑based approach for deciding which applications get a full hearing.
- Require reasoned judgments when leave to appeal is denied, so parties understand the decision.
Medium‑Term Ideas
- Reduce the number of judges that initially screen new applications (for example, a smaller panel could handle the first look).
- Introduce stricter case‑management timelines.
Long‑Term Reforms
- Create separate chambers within the court—one for constitutional issues, another for general appeals.
- Consider merging the Constitutional Court with the Supreme Court of Appeal into a single apex court.
- Limit the court’s jurisdiction through a constitutional amendment, focusing it on the most critical constitutional matters.
Real‑World Example
The recent Phala Phala case illustrates the problem. Heard in November 2024, its verdict was only released this month, showing how delays can stretch for months even after a hearing.
Conclusion
The Constitutional Court is a cornerstone of South Africa’s democracy, but rising case numbers and outdated procedures are straining its ability to deliver timely justice. By adopting practical shortcuts now, rethinking how panels work in the medium term, and exploring structural changes for the future, the court can regain its efficiency and preserve public trust. A national conversation—sparked by reports like FUL’s—is essential to ensure the highest court continues to protect the rule of law for all South Africans.
