It all started with the inability of the Constitutional Court to decide the fate of applications for leave to appeal speedily and the marked delays by the court in the delivery of its judgments.

There is a deep irony that the published Norms and Standards for the Performance of Judicial Functions produced by the Chief Justice provides that an effort shall be made to hand down judgment no later than three months after the last hearing. The Constitutional Court would seem to enjoy an implicit exemption in this regard, because a judgment delivered within three months of a hearing of that court is as rare as hen’s teeth.  

Within this context, an article by two of South Africa’s most outstanding young academics, Nurina Ally and Leo Boonzaier, concerning the Constitutional Court’s efficiency during the Mogoeng Mogoeng era between 2010 and 2021 is compellingly instructive. Regrettably, the article was published in the Constitutional Court Review, an obscure journal with a minuscule readership, for it is an article that deserves the widest public attention.

The authors note that the average time taken to produce a judgment of the Constitutional Court effectively doubled between 2010 and 2021. The court took an average of 104.1 days to hand down a judgment in 2010 but by 2021 this had increased to 204.74 days. This trend began slowly after 2013 but sped up between 2019 and 2020. In 2018, for the very first time in the court’s history, it took more than a year to hand down a judgment. In 2021, four judgments took longer than a year to be handed down. In one case, the court took more than 400 days between the hearing and the hand-down.

The authors provide a series of reasons which explain this depressing tendency, the first of which is an increased workload caused, to a large extent, by the expansion of the court’s jurisdiction in terms of the Constitution 17th Amendment Act of 2013, which resulted in the court being of final instance for all legal disputes, not only those which were triggered by the Constitution. Thus, the court received more than three times as many applications in 2021 as it did in 2010. 

This in turn raises the key point as to whether the court sets cases down too easily, in that cases heard do not justify an appellate hearing. It was most certainly exacerbated by the highly questionable decision to allow applications for rescission of judgments which had been handed down by the Constitutional Court itself. Nothing illustrated the success of the Stalingrad strategy more than this ill-advised decision to allow rescission of judgments to be heard by the court and there was no justifiable legal reason offered for the development of this practice.

Decrease in judges

A further explanation concerns the court’s composition; in particular a decrease in the total number of active judges in the court and the relative number of permanent judges as opposed to acting judges. In 2010, on average, 9.79 permanent judges sat on a case, whereas in 2021 the figure was 7.04. In particular, a number of cases were heard when neither the Chief Justice nor the Deputy Chief Justice was present in court. 

Furthermore, as the authors note, an over-allowance of acting judges can have serious practical consequences. Acting judges are relatively unfamiliar with the court’s working processes and may require some time to adjust. They may be understandably less inclined to play a leadership role. In addition, since acting appointments are only for one or two terms, (three or six months), many of the judgments in which they participate must be written after they have left the court and returned to their ordinary full-time responsibilities.

In the Mogoeng era, the appointment of acting judges grew exponentially. In 2010, acting judges participated in no more than 42.8% of the cases heard. After 2014, acting judges sat in every case, save one. 

Another reason is the number of judgments that were not delivered unanimously. In 2010, almost 80% of the court’s judgments were unanimous. By 2021, half of the court’s judgments contained more than one written opinion. 

The authors concluded that the court’s efficiency had steadily declined since 2013 and plummeted since 2019. Streamlining the court’s working procedures can, at best, be a partial solution The more fundamental issue remains the recapacitation of the court. This may well mean that section 167 of the Constitution, which provides that a matter before the Constitutional Court must be heard by at least eight judges, requires an amendment to the effect that petitions can be decided by, say, two or three judges, as is the practice in the Supreme Court of Appeal, which is far more efficient in this connection.

Unquestionably, however, the court requires resources to appoint a group of experienced lawyers to assist with many of the functions which judges presently fulfil, as is the practice in other constitutional courts.  

Furthermore, the Judicial Service Commission needs to explore the work ethic of candidates for the Constitutional Court; that is their record of delivering judgments expeditiously in complex matters, any clear record of delay in delivering judgments and hence the capacity of a candidate to fulfil the extraordinarily pressing burdens which are visited on a judge of the Constitutional Court.

Finally, expeditious appointments to the Constitutional Court will prevent the excessive use of acting judges.

In addition, some of the acting appointments that have been made have been — not to put too fine a point on it — highly surprising. Judges without a record of complex judgments and judges with almost no knowledge of a vast range of law that comes before the Constitutional Court have been given acting appointments, while outstanding candidates have been overlooked.

In this connection, the omission of Judge Nathan Ponnan of the Supreme Court of Appeal is perhaps the most obvious example. The practice of acting appointments to the Constitutional Court needs revisiting. 

In summary, if this tendency of inefficiency of the Constitutional Court prevails, its very legitimacy is compromised. For this reason alone the study presented by Ally and Boonzaier needs careful reading and the problems highlighted therein need even more meticulous reaction. DM