<\/p>\n
You can also listen to this podcast on iono.fm here.<\/p>\n
JEREMY MAGGS: South Africa\u2019s Constitutional Court is under growing pressure, with a new Freedom Under Law report warning that exploding caseloads, mounting delays and outdated operating practices are now threatening the court\u2019s ability to fulfil its role as the country\u2019s ultimate guardian of the rule of law. Applications have more than tripled since 2010.<\/p>\n
Judgments are taking a lot longer to be delivered, and Freedom Under Law arguing that without serious reform, public confidence in the apex court itself could begin to erode.<\/p>\n
This is a worrying situation. I\u2019m in conversation now with Chris Oxtoby, research consultant at Freedom Under Law. Chris, welcome, and is it too strong, then, to say that the Constitutional Court is now in crisis, or is that precisely where we are right now?<\/p>\n
CHRIS OXTOBY: I think yes, one doesn\u2019t want to be overly quick to invoke the word crisis if we don\u2019t have to. But I think for the reasons that you\u2019ve set out in your intro, there very clearly is a serious problem and a challenge that is facing the court.<\/p>\n
We\u2019ve just seen recently in the so-called Phala Phala judgment having been released after such a long delay, the level of public scrutiny and public concern that that attracted, I think, is illustrative of the bigger concern about why it matters that our top court is able to operate more efficiently and effectively than it is.<\/p>\n
I would say it is a crisis of sorts, because it\u2019s been a long-running problem and there doesn\u2019t at the moment seem to be any end in sight.<\/p>\n
JEREMY MAGGS: Let me pick you up on the long-running problem observation. The report says applications have more than tripled since 2010, if I read this correctly.<\/p>\n
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Do you think the pressure was foreseeable when the court\u2019s jurisdiction was expanded? Or did policymakers simply fail to plan for the consequences?<\/p>\n
CHRIS OXTOBY: I think it was foreseeable to an extent. So just to give quick background to that, the court\u2019s jurisdiction initially was limited to constitutional matters only. That was then expanded so that now the court is effectively a court of general jurisdiction. It has jurisdiction beyond constitutional matters only.<\/p>\n
I do recall submissions at the time pointing out the difference between the workload that the Constitutional Court had then and that the Supreme Court of Appeal, which was a court of general jurisdiction, of course, the difference between the caseload that those two courts had to deal with did suggest that the Constitutional Court could expect an increase in workload.<\/p>\n
A point has been made \u2013 former Chief Justice Raymond Zondo made this point \u00a0\u2014 that when the court was visited with this increased jurisdiction, steps were not taken to increase its human resource capacity, to increase the number of judges or to take any of those measures that might have been done to help it cope better.<\/p>\n
But I think, on the other hand, there are also things that the court might be able to do, and which we touch on in the recommendations for the report, such as employing a much tighter and clearer test for when it will determine that it is in the interests of justice for it to hear appeals.<\/p>\n
So I think there are ways that the court internally can make use of its own rule-making ability and power to determine its own process, which would help to some extent.<\/p>\n
But I think it is a multifaceted problem. It is something of a hospital pass, I think, that the court got given by policymakers.<\/p>\n
There are steps the court itself can take, I think, to alleviate that. But it may also well be the case that it needs further high-level policy interventions to really address the root causes.<\/p>\n
JEREMY MAGGS: Let me pick you up on some of the proposed reforms. You talk about smaller screening panels, tighter procedural rules. Chris, it may sound sensible, but there\u2019s always the risk, is there not, of making access to the highest court more restrictive, particularly for poorer litigants.<\/p>\n
CHRIS OXTOBY: That certainly is a concern.<\/p>\n
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I think it frankly speaks to a broader concern with the justice system as a whole. That is also going to be a concern at courts lower down the chain.<\/p>\n
The idea of your apex court, generally speaking, is that it takes cases once they\u2019ve already gone through the court system, once they\u2019ve been fine-tuned and crystallised, and there are very clear issues to be determined because the court has the final word on them.<\/p>\n
So I think the point of accessibility is an important one.<\/p>\n
But I think the current system where the court is struggling to get judgments out on time, the court is clearly swamped by the number of applications for leave to appeal it\u2019s receiving, I don\u2019t think that\u2019s going to serve that cause either.<\/p>\n
So ultimately, a better-functioning court where practitioners who are advising litigants are clear about the circumstances under which the court is going to hear an appeal, I think all those factors are ultimately going to help not only access to actually getting your case before the court, but also ultimately to hopefully the best possible decisions from that court, because it\u2019s not too overwhelmed to deal with cases as litigants would want them to.<\/p>\n
JEREMY MAGGS: Or a big bang approach. So you also talk about separate chambers, merging the Constitutional Court and the Supreme Court of Appeal, or, as you\u2019ve referenced, narrowing the court\u2019s jurisdiction through policy or constitutional amendment.<\/p>\n
It does tell us, though, that the problem has become maybe too serious for just minor fixes or tweaking around the margins.<\/p>\n
CHRIS OXTOBY: Yeah, I think there\u2019s certainly that concern. I think we\u2019ve taken deliberate care to split the recommended reforms up into some that could be undertaken in the short term, relatively, I say relatively easily.<\/p>\n
But, for example, something like the court introducing its own directives to determine how long the papers that are filed must be. Those are things that the court can do relatively quickly.<\/p>\n
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The court can start writing judgments indicating how it will apply the test, and when it will refuse leave to appeal. Those that are within the court\u2019s power to do so. Those can be done relatively quickly.<\/p>\n
We think they will help, whether they will be the whole picture, whether they will fully be enough to solve the problem, I think is an open question.<\/p>\n
Then one starts thinking about what we\u2019ve identified as the longer-term, some really quite fundamental structural changes, as you\u2019ve referenced, those are obviously going to take longer because that\u2019s going to require constitutional amendments and so forth.<\/p>\n
JEREMY MAGGS: Just a quick one. In conclusion, maybe just real-world consequence, if applications for leave to appeal, for instance, can sit unresolved for months, it has a serious impact, does it not, for litigants, businesses and government decisions that require almost real-time certainty in this very volatile political and social environment within which we operate?<\/p>\n
CHRIS OXTOBY: One hundred percent, we\u2019ve suggested in the report that litigants could be looking at, on average, one and a half years between filing an application for leave to appeal and receiving a final judgment.<\/p>\n
I think it\u2019s easy to imagine in many contexts just how problematic that can be to have a dispute which, as you say, may impinge on finances, on business operations and so forth, to be held in abeyance for that long.<\/p>\n
It is absolutely a very real practical issue and of course, that in turn has a spillover in terms of how confident and trusting people are in the courts in general, not only the Constitutional Court.<\/p>\n
JEREMY MAGGS: Chris Oxtoby, thank you very much indeed, research consultant, Freedom Under Law.<\/p>\n
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