The Constitutional Court's Docket – January to July 2024
"Constitutional Court of South Africa" by Stefan Schäfer, Lich is licensed under CC BY-SA 3.0.
Most commentary on the Constitutional Court of South Africa focuses on its jurisprudence. Yet most applications made to the Court are determined in chambers, without a published judgment, and little is known about this aspect of the Court’s work.
In a recent study by the Centre for Law and Society, in collaboration with law students from the University of Cape Town, we analysed the Court’s case flow records to monitor trends in petitions filed during the first two terms of 2024. We also extracted some information related to petitions filed in 2023. Our full findings have been published in the Potchefstroom Electronic Law Journal. We present aspects of it here.
Our results suggest that the Court is inundated with generalist appeals and is struggling to process petitions timeously.
Time taken to determine new applications
In addition to concerns over the Court's slow judgment turnaround times in recent years, there has been growing disquiet regarding the pace with which new applications are processed. To assess the extent of the problem, we reviewed the Court's case flow records for petitions filed between January and December 2023, as well as those filed between January and July 2024.
By the end of July 2024, the Court had 287 pending applications (filed in either 2023 or 2024) before it. Figure 1 shows how long these applications had been awaiting directions from the Court as of 26 July 2024.
Figure 1: Percentage of petitions filed in 2023 and 2024 awaiting directions for 0-3 months, 3-6 months, 6-12 months, and more than 12 months
During the period we reviewed, most petitions had been awaiting directions for over 3 months. Approximately half of the pending petitions had not been processed for 6 months or longer, and nearly a quarter had remained on the Court's docket for over a year. Notably, there was a four-month period – from December 2023 to April 2024 – during which the Court recorded no activity in deciding pending applications. It is unclear if this inactivity was an anomaly, but it likely explains why many petitions have been pending for more than 3 months.
The time taken to process new applications is significantly slower than a decade ago. For instance, in 2012, the average time taken to decide a case in chambers was just 33 days, although the Court’s overall caseload was about one-third of what it is now. Data on the types of applications made to the Court, and the reasons why petition dismissals offer further insight into the factors that may be impacting the efficiency.
Subject matter of petitions and reasons for dismissal
Based on an analysis of lower court judgments, we identified the main areas of law that likely featured in appeal applications. As shown in Figure 2, the most common topics across cases were civil procedure, administrative law, and labour law (each comprising 19% of petitions). Around 9% of petitions concerned contract or commercial law, or property law (including cases relating to access to land or housing). Criminal appeals, including criminal procedure, accounted for almost 8% of petitions, while delict law was relevant in approximately 4.5% of the cases. Roughly 1% of cases concerned environmental law and judicial review of legislation respectively. Just over 10% of cases engaged a range of other issues. We were unable to determine the subject matter for about 16% of petitions filed during our review period.
Figure 2: Percentage of petitions filed between 1 January 2024 and 26 July 2024 raising certain areas of law
Of the 217 new applications filed in the first two terms of 2024, 57 had been dismissed by 26 July 2024. We identified the reasons for dismissal for 40 of these applications, as shown in Figure 3. Where multiple reasons for dismissal applied, we included the application under each of those categories.
Our results show that 16 cases (28%) were dismissed on the basis that the Court's jurisdiction was not engaged, and 13 cases (22%) were dismissed because the application bore no reasonable prospects of success. Eleven cases (19%) were rejected because no case was made out for direct appeal or direct access, and in 2 cases (3.5%), the Court found that granting leave to appeal was not in the interests of justice.
Figure 3: Reasons for dismissal of petitions filed in 2024 and dismissed between 1 January 2024 and 26 July 2024
Of the petitions where the reason for dismissal was known, the majority (57.5%) were dismissed without costs. Petitions dismissed for failing to engage the Court's jurisdiction attracted the most cost awards, with costs ordered in 11 of the 16 cases (or 69%) in that category.
Conclusion
Our data confirms speculation that the Court is struggling to manage its heavy caseload and process petitions timeously. Many litigants appear to approach the Court as a "last chance" appeal, rather than raising constitutional issues or arguable points of law of public importance. For instance, many labour and criminal appeals appear to challenge the application of established legal principles to specific facts, as opposed to raising a novel or controversial issue of law. It is also striking that at least 28% of petitions were rejected for failing to engage the Court's jurisdiction.
An influx of generalist appeals was anticipated when the Court’s jurisdiction was expanded by the Constitution Seventeenth Amendment Act 72 of 2013. However, this challenge may have been compounded by the Court's inconsistent approach to defining its jurisdiction. Establishing coherent principles to guide litigants on when the Court will entertain matters is necessary. Some practical interventions could also be considered: for example, requiring petitioners to submit a pro forma filing sheet that includes a succinct statement of the point of law of public importance that the case raises. This could help focus attention on t jurisdictional issues and assist with the sifting of applications. A clearer indication of the types of cases that will attract adverse costs awards may also influence potential applicants’ behaviour and help reduce the number of appeals lodged with the Court. Comparative lessons from other constitutional or apex courts may also be instructive.
While our analysis provides only a snapshot of the Court's activity this year, we hope it demonstrates the value of a data-driven understanding of the Constitutional Court's operations. This approach can inform reform proposals and enhance transparency and accountability in the Court's daily work.
