The Constitutional Court’s increased caseload and expanded jurisdiction, introduced through amendments in 2012, have not been matched by additional budgetary allocations or judicial capacity, contributing to delays in the delivery of judgments, Freedom Under Law says.
In its new report, which was released on Tuesday, the non-profit said a sharp increase in appeals, mounting backlogs and procedural inefficiencies have placed South Africa’s apex court under growing strain.
Chief Justice Mandisa Maya publicly apologised for the lengthy delay in the Constitutional Court’s Phala Phala judgment, which took 530 days — from November 2024 to May 2026 — to be delivered.
Judith February, the executive officer of Freedom Under Law, said the changes proposed in the report would not prevent matters such as the Phala Phala case from being heard by the Constitutional Court but would instead address delays in the finalisation of judgments.
There were administrative solutions and legal amendments, she said, that could help resolve the delays in delivering judgments that had affected the court.
“The court’s growing workload, combined with outdated processes and structural constraints, is compromising its ability to decide matters efficiently and timeously,” she said.
“If judgments are increasingly delayed and the court is seen to be struggling to manage its workload, public confidence in the judiciary itself may begin to erode.”
Research consultant Chris Oxtoby said the Constitutional Court had gradually changed from a specialist court to a “generalist institution”, having to consider all matters related to constitutional infringement without a complementary budget.
He said the number of new case applications had tripled to more than 400 a year and the time it took for the Constitutional Court to deliver judgments had doubled.
“This correlation between time and increased cases suggests that processing is the driver of delays the court is experiencing,” said Oxtoby.
He cited the Phala Phala case as an example of delayed judgment and added that the volume of cases alone was not the basis of the challenge; the lack of sufficient human capacity was.
“The court’s authority depends not only on the quality of its judgments but also on its ability to decide matters promptly, predictably and transparently. South Africa cannot afford an apex court that is overwhelmed and increasingly unable to perform its constitutional function.”
Oxtoby said the “interests of justice” test, which determined whether a constitutional matter should be heard by the Constitutional Court, had led some legal practitioners to “take chances” with appeals, adding to the court’s workload.
He argued for a “tightening” of the test, which would reduce the number of matters the Constitutional Court heard.
Oxtoby said supreme courts in countries such as the US and Canada heard only a small fraction of the cases brought before them, accepting roughly 2% for consideration.
Professor Hugh Corder, professor emeritus of public law at the University of Cape Town,
said the Constitutional Court’s track record had been “overwhelmingly positive” and it “deservedly earned for itself a reputation for progressive and nuanced judgements internationally”.
In the first 15 years, the Constitutional Court had focused on gross inequality and injustice cases emanating from the effects of apartheid, Corder said.
During the 1993 negotiations for South Africa’s democratic transition, lawmakers were grappling with the question of an “enforcement mechanism to the Bill of Rights” to hold the executive and parliament accountable.
He said the establishment of the Constitutional Court had not been “a unanimous decision”, with some having argued instead for a German-style model in which the Constitutional Court would have operated through two chambers, linked to the Supreme Court of Appeal.
Corder said the argument in favour of creating an entirely new court had ultimately prevailed, leading to the establishment of the Constitutional Court.
The court had initially been made up of former struggle stalwarts who had become judges and “were sensitive to limited authority in the separation of powers”.
Corder said the executive and parliament had not shown the same level of restraint and respect towards the Constitutional Court.
He said the judiciary had been strained by numerous acting appointments, adding that the 2012 establishment of the Office of the Chief Justice had created administrative challenges. “Not every judge makes a good judicial manager or leader,” he said.
“One of the ways the executive can undermine the courts is through the denial of resources or by failing to provide the courts with the capacity they need,” Corder added.
In its new report, Freedom Under Law says the caseload of the apex court has tripled, leading to delayed judgments that negatively affect public confidence in the judiciary
