On 14 March, Chief Justice Raymond Zondo announced that a “programme” to use retired justices of the Constitutional Court to assist the court in processing applications to hear cases was to be abandoned. 

The programme had been introduced, the Chief Justice explained, to deal with significant backlogs and resultant delays in dealing with new applications to the court. It had been envisaged that this role would rotate among retired justices of the court, but due to the limited availability of retired justices, the programme was to be discontinued.  

Concerns were immediately raised about the programme when it was announced, including by Freedom Under Law. Questions were raised about whether it was constitutional for a retired judge to be fulfilling a core judicial function of advising on what cases the court should hear when their constitutionally prescribed tenure as a judge of the court had expired; and concerns were voiced about the lack of consultation and transparency surrounding the programme.

In withdrawing the programme, the Chief Justice noted that the court was dealing with a serious workload. He proposed that “experienced lawyers” be brought in to assist the judges in dealing with new applications, and that there be a constitutional amendment to allow a panel of three judges to decide new applications (as opposed to the current situation where all judges of the court are required to deal with these applications).  These proposals have been welcomed in many quarters.

While the move to discontinue the programme of using retired judges is to be immediately welcomed, considering the significant problems inherent in it, we should be careful not to sleepwalk into a process of reform which merely papers over more fundamental cracks in the law and procedure governing the functioning of our highest court. 

Now that the Chief Justice has raised the prospect of a constitutional amendment, there needs to be a careful unpacking of proposed changes, as well as a contextualising of how the situation — of the Constitutional Court’s seemingly unmanageable workload — came about in the first place.

Expansion of jurisdiction

The Chief Justice ascribed the court’s increased workload to “a huge increase in matters that are brought to the Constitutional Court since the expansion of the Court’s jurisdiction about 10 years ago”. It is necessary, then, to revisit how that expansion of jurisdiction took place initially, to ensure that we do not again put in motion a reform process which leads to serious, if unintended, consequences. Historical context, as always, matters. 

At the beginning of the constitutional era, the Constitutional Court was created as the highest court on constitutional matters, while the Appellate Division of the High Court (now the Supreme Court of Appeal, or SCA) was the highest court on non-constitutional matters. This approach was not an inevitability, but the then recent spectre of apartheid persuaded the drafters of the Constitution that the highest court entrusted with applying the new Constitution ought to be untainted by that history.

The split of authority between the Constitutional Court and SCA produced some complications, and the Constitutional Court — dealing with a significantly lower workload than the SCA — began to develop an expansive interpretation of its jurisdiction. This trajectory eventually led to the passing of the Constitution Seventeenth Amendment Act in 2012, which gave the Constitutional Court jurisdiction over not only constitutional cases but also over any matter which “raises an arguable point of law of general public importance which ought to be considered by the Court”.

It does not take a constitutional law expert to see that almost any case could be capable of falling into the latter category. As a result, the Constitutional Court has effectively become a Supreme Court with general jurisdiction. Its name may have historical resonance, but it is certainly no longer a specialist Constitutional Court, as contemplated at its establishment.  

The further result of this has been the increase of the court’s workload alluded to by the Chief Justice. This should have come as no surprise. Submissions on the Seventeenth Amendment drew attention to the likely increase in workload that the amendment would entail for the Constitutional Court. The amendment, however, made no provision for how the court might deal with this.

Small wonder, then, that academic research has found that the court’s average time between hearing a case and delivering judgment has almost doubled between 2010 and 2021, with a “steady upward surge” after 2013 — closely in synch with the passing of the Seventeenth Amendment in 2012. It is no surprise, then, that the Chief Justice has publicly acknowledged the impact of the court’s increased workload. 

The increase of the Constitutional Court’s jurisdiction presents other challenges. Whereas previously, judges appointed to the court would have been assumed to be experts in constitutional law, the court now requires judges who are strong generalists, with expertise across a wide field of law. The Judicial Service Commission has been slow to adapt to this reality in recommending candidates for appointment.

Structural reform

The approach suggested by the Chief Justice is one way to tackle the issue, but it is not the only option. Thought might be given, for example, to tightening the Constitutional Court’s jurisdiction. The short-lived programme to use the services of retired judges, and the unfavourable reaction it prompted, highlights the need for any further reforms to be carried out transparently and in proper consultation with key stakeholders.

The context within which reforms have become necessary suggests that it may be time to consider a more serious, structural reform of the highest courts.   

A constitutional amendment is not to be embarked on lightly. Careful consideration must be given to whether it is essential to achieve the necessary changes, or whether the same objectives can be achieved in other ways. The judiciary itself will have little control over the final outcome of the process once an amendment works its way through the parliamentary process, and we should be wary of handing any opening to anti-constitutionalist forces to exploit and use to weaken the courts.

While it does appear that the functioning of our top courts is now at a stage where some kind of reform is essential to ensure the proper administration of justice, it is vital that any changes are only undertaken after a careful assessment of the purpose and structure of the appellate system. This requires a careful review of the history and current functioning of the court system, to avoid a patchwork reform process.

It is a review that Freedom Under Law has now embarked on, and which it intends to share with relevant stakeholders and the newly elected Parliament.

The consequences of the Seventeenth Amendment demonstrate the risks in reforming systems such as these without fully engaging with, and planning for, the consequences. Our courts can ill afford an incomplete solution. DM