Will performance of ConCourt improve in 2025?

It remains uncertain how the Constitutional Court (ConCourt) will address its performance challenges in 2025, with former Chief Justice Raymond Zondo now retired.

The ConCourt has previously drawn criticism for failing to deliver judgments within the prescribed timelines.

Judicial norms and standards require judges to issue rulings within three months of a hearing or trial conclusion.

However, most courts, including the ConCourt, have often exceeded this timeframe, with some judgments reserved for over six months.

The apex court’s judges cite a heavy caseload as the primary reason for delays, a sentiment echoed by Zondo in the judiciary’s annual report released in July 2024.

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The report revealed that the ConCourt resolved only 55% of its cases in the 2022/2023 financial year, falling short of its 70% target.

A University of Cape Town (UCT) study published in October 2024 highlighted that while the ConCourt delivers approximately 50 judgments annually, this represents only a fraction of its workload.

Most applications were dealt with in chambers without detailed written rulings.

Proposals to enhance the ConCourt’s efficiency include amending the Constitution to allow smaller panels of three judges, rather than the current full bench of 11, to hear new applications.

Another suggestion involves appointing experienced lawyers to assist with case management.

Two legal experts have weighed in on the potential impact of these measures.

ConCourt performance

Pierre de Vos, a professor of constitutional governance at UCT, expressed scepticism about the constitutional amendment, warning that smaller panels could undermine the ConCourt’s consistency and legitimacy as the “final court”.

“If you have smaller panels then you have 11 judges sitting in three panels and different judges inevitably, especially with complicated cases, might have different views on the law.

“I’m not sure that is a good thing for a court like the Constitutional Court that makes really important decisions with sometimes huge political implications,” he told The Citizen.

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De Vos stressed the need for improved administrative efficiency and selective case allocation to ease the apex court’s workload.

“There is clearly a problem with the court having too much to do because they changed the jurisdiction of the court to give it jurisdiction about some non-constitutional matters,” the professor explained.

“There could perhaps be a legislation or amendment that allows smaller panels to make those decisions so that all 11 judges are not required to read every single piece of documentation that is submitted there.

“Easy cases could just be dealt with and dismissed by panels of three or so. That might help a bit,” de Vos added.

Constitutional amendment needed?

Senior lecturer at the University of Pretoria Dr Llewelyn Curlewis doubts there will be a significant improvement in the ConCourt’s performance in 2025, emphasising that such progress requires long-term evaluation.

Curlewis, instead, echoed concerns about logistical issues, such as poor infrastructure, hampering the court’s effectiveness.

“For a court to properly function, there are other factors that also contribute to the performance of the court and one of them is the infrastructure. Currently, the infrastructure is not attended to,” the legal expert said.

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He told The Citizen that constitutional amendments, while helpful, require lengthy legislative processes and may not yield immediate results.

“It must be brought before Parliament, it must be voted on, it must be ratified by the state president and by the court itself et cetera. I mean that takes months to conclude.”

Curlewis highlighted potential repercussions of the amendment, using the Supreme Court of Appeal (SCA) as an example, where cases are heard by five judges.

The expert argued that it would be unreasonable to expect the ConCourt to handle appeals from the SCA with only three judges.

“There’s a reason why we want the highest court in the country to sit on a full bench consisting of the number that it’s currently sitting because it’s some important matters to be attended to that we cannot merely for practical purposes and performance purposes try to take shortcuts by reducing the number of presiding judges.”

Appointment of experienced lawyers necessary?

When asked if appointing experienced lawyers could improve the ConCourt’s efficiency, De Vos noted that the apex court was already relatively well-resourced.

“It has a system of clerks or law graduates. Each judge has two or three clerks that help them, so they have support that other judges in lower courts don’t have.”

Meanwhile, Curlewis raised concerns about the role legal practitioners would play in assisting the ConCourt.

“Would it be in a capacity as acting judges?” he asked.

“You cannot appoint an acting judge from practice or an advocate or attorney, even with years of experience, immediately sit on the ConCourt bench which is one thing for them to act in the other divisions of the court because of the experience.

“But it must be seasoned judges that sit as acting judges in the ConCourt until they receive permanent appointments. So I don’t know how that’s going to alleviate the problem,” the expert added.

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