A court in crisis: Why the state of the ConCourt must be addressed

The state of the Constitutional Court has been a worry for some time. As Daily Maverick (16 March) reported, two outstanding academic lawyers, Leo Boonzaier and Nurina Ally, have again documented the marked inefficiency of the Constitutional Court.

They note, their and other documented critical comments notwithstanding, that the court’s time to hand down judgments has not improved; the average of 214 days to hand down a judgment from the start of a hearing in 2024 is similar to its problematic record of 2020.

The usual excuse is the increased workload of the court. After all, in 2013, the 17th Amendment to the Constitution ensured that the court became the apex court for all legal disputes, not only constitutional ones. As a consequence, the court received an exponential rise in applications.

But, as Boonzaier and Ally note, the court received far fewer applications in 2024 than in 2021 and handed down fewer judgments in 2024 than in 2021. Yet the long delays remain.

Compared with the Supreme Court of Appeal (SCA), from where most of the appeals to the court are sourced, the court performs poorly. The more interesting question, which needs research, is the comparison between the court and other apex courts.

The authors do point to two important contributory factors in this unimpressive record – the plethora of acting justices who have sat throughout this reporting period, and the absence of chief justices Zondo and Maya from sitting in numerous cases. The problem of an absence of permanent justices has been compounded of late by the inexplicable delay on the part of the President to appoint two justices from a list provided to him by the Judicial Service Commission (JSC) in October 2025.

This is truly an unacceptable delay, causing the continued use of acting justices. The untimely death of Nicholas Haysom, President Nelson Mandela’s legal counsel, focuses attention yet again on the importance of the role an astute lawyer like Professor Haysom can play in ensuring expeditious and legally competent decisions from the Presidency.

The work required of a Chief Justice in running the Office of the Chief Justice, apart from being head of the court, has manifestly placed a great burden on the Chief Justice. Somehow, resources must be found to deal with this problem in that primarily it is the role of the Chief Justice to preside over the court.

Much of the present problem rests with the ill-considered 17th Amendment to the Constitution, which bestowed jurisdiction upon the court to hear appeals of all kinds and not only constitutional matters, which hitherto had been its mandate. This was an invitation to disgruntled litigants to appeal in so-called Stalingrad manner, not only from judgments of the SCA but even in cases where the SCA had refused to hear the case.

The structure of the court had not been designed to be the only apex court, and the system that had been developed by the first Constitutional Court, both to hear and decide cases, had been focused exclusively on constitutional issues.

As Boonzaier and Ally point out, however, the court retains the power to refuse to hear cases and hence manage its roll. In particular, the court has been the author of its own problem by repeatedly hearing appeals from specialist courts – the Labour and Competition appeal courts – where the court has, certainly at present, little expertise.

There is indeed a plausible argument that its jurisprudence in these specialist areas has retarded rather than developed these key areas of law. Indeed, the same can be said for complex commercial and tax-related cases where the court has but one expert.

In summary, the court should fashion a realistic roll, obviously by concentrating on constitutional disputes and others where there is an exceptional basis laid to hear the case.

Another possible avenue to improve efficiency is the manner in which judgments of the court are written. Take a look at the judgments of the first Constitutional Court, widely regarded as the finest court to date. Justices focused clearly on the key issues for decision, and the judgments provided lucid guidance to the legal community for future cases. Now take a look at the present judgments.

It is only after one has read screeds of paper about the high court and the SCA judgments and then volumes of summation of the parties’ submissions that one gets to the nub of the issue and the law that is relevant to the determination of the case. Understandably, the apex court must write the final word on the issue before it, but the present style is opaque, prolix and often unnecessary.

And that brings us to the elephant in the room. It is safe to say that the court in its first 15 years was widely regarded as among the very finest (if not the best) constitutional court in the world. Can the same be claimed today? And have the finest jurists been appointed to the court in recent times?

The performance of the JSC in conducting, until recently, hearings that were totally inappropriate for the purpose has been the subject of sustained criticism. Not only were applicants who could have greatly contributed to the performance of the court being rejected, but many distinguished jurists simply refused to apply. Whereas in 2009 more than 20 judges and senior counsel were subject to JSC hearings, in recent times the JSC has failed to attract four viable applicants.

The Constitutional Court is a vital institution for the preservation and development of constitutional democracy. It is not in the interests of this objective that sustained inefficiency, as recorded by Boonzaier and Ally, can continue. DM

In real life, Professor Balthazar is one of South Africa’s foremost legal minds. He chooses to remain anonymous, so it doesn’t interfere with his daily duties.