The Constitutional Court, perched atop Constitution Hill in Braamfontein, is celebrated as one of the most remarkable court buildings in the world. The Court was intentionally designed “to reflect the values of our new constitutional democracy”, to be “welcoming rather than forbidding” and to exude “sparkle and warmth.” 

But, for more than two years, the Court precinct has not been used for its main purpose: the hearing of important constitutional cases. Instead, virtual hearings have become the “new normal” — and with it, the “sparkle and warmth” of the Court’s atmosphere has been chilled. 

The shift to online hearings was, of course, a necessary measure in response to the Covid-19 pandemic. But the national state of disaster has now formally ended. Other sectors of society have mostly returned to business-as-usual. And courts across the country, including the Supreme Court of Appeal, are hearing matters in their physical courtrooms. 

So why has the highest court in the country not done the same? It is not clear. 

The Court has not issued any public communication explaining why virtual hearings are still preferred, nor its plans (if any) for a return to in-person hearings. Does this suggest that virtual hearings at the apex Court are here to stay? 

To be sure, there are some benefits to the Court’s virtual hearing format. It is more cost and time-effective. There is less risk of disruption during potential Covid-19 surges. And hearings are live-streamed and recorded so that members of the public — at least those with internet access — can follow online (although this should also be possible to arrange with in-person hearings). 

However, a substantial downside to the fully virtual format is that the actual litigants in the matter — the people most affected — remain entirely unseen. 

This was apparent last week, when Blind SA — an organisation advocating for the rights of blind and visually impaired people — challenged the constitutionality of the Copyright Act.  Members and supporters of Blind SA gathered in numbers to march to the Constitutional Court, carrying banners that urged the Court to end the “book famine”. 

Ordinarily, a march of this sort would have culminated in the organisation and its membership (as well as other litigants and members of the public) being seated in the court chamber. They would have had an opportunity to be present while their matter was heard and to express, through their presence, the importance of the case to them. But this was not possible in the virtual hearing. Instead, the litigants were asked to follow the live stream of the hearing on Youtube, while the court chamber stood cold and empty with over a hundred people with visual and print disabilities rallying outside it.

The intangible, but powerful effects of the presence of litigants should not be undervalued. At times, the Constitutional Court’s judges have themselves been moved to actively recognise litigants or community members in the courtroom. For example, at the conclusion of a hearing on the right to protest, Justice Nonkosi Mhlantla, in isiXhosa, directly addressed the young members of Equal Education who were in attendance. The dignity-affirming gesture transformed an otherwise alienating experience for young people into a moment of direct participation in the Court’s process. 

In Nokotyana and Others v Ekurhuleni Metropolitan Municipality and Others, an impactful exchange transpired between community members seeking basic service provisioning, the government’s legal representatives and the Court. As the judgment records:

“In open court, packed with residents of the [Harry Gwala Informal] Settlement, counsel for the MEC stood up and offered an apology on behalf of the provincial government — firstly to the Court and then, after being prompted by the bench — to the residents of the Settlement, in isiXhosa, a language they understand.”

After handing down the judgment in the Treatment Action Campaign (TAC) case in July 2002, where the court was filled with expectant TAC activists wearing HIV positive T-shirts, justice Albie Sachs said that he burst into tears as the judges rose and left the court to return to their Chambers.

These types of exchanges are simply not possible in a virtual hearing as the people behind the legal debates, those who have the most to lose from the technical legal arguments, are absent. Even the Zoom meeting link is limited to counsel and not shared with litigants, further precluding such exchanges. It would be unfortunate — and a far remove from the principles of transparency, participation and accountability that famously animate the Court’s vision of ‘justice under a tree’ — if this were to be too easily accepted as the ‘new normal’.

With courts across the country returning to in-person hearings, one hopes that the Constitutional Court will soon follow suit — or, if not, then to at least explain why. DM/MC

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