Johannesburg, 19 May 2026 – South Africa’s Constitutional Court is facing mounting institutional strain that threatens its ability to fulfil its constitutional role effectively, according to a comprehensive report released today by Freedom Under Law (FUL).

The report, titled “A review of the Constitutional Court’s jurisdiction and operating practices in light of its increased workload and consequential delays”, examines how a dramatic rise in appeals, growing backlogs and procedural inefficiencies have placed the country’s apex court under increasing pressure.

According to the report, the number of applications filed at the Constitutional Court each year has more than tripled since 2010, with the Court now receiving close to 400 applications annually. At the same time, the average period between hearings and judgments has more than doubled over the past decade, while applications for leave to appeal often remain unresolved for months.

FUL says the issue is no longer simply one of administrative delay, but one that risks undermining the Constitutional Court’s ability to act as the ultimate guardian of the rule of law.

Judith February, Executive Office, Freedom Under Law, says:  “How the Court functions is a critical concern for South Africa’s constitutional democracy. As the country’s highest court, it determines legal principles that all other courts must follow and has the power to strike down legislation and government action. 

“If the Court is unable to fulfil its role effectively as the ultimate guardian of the rule of law, the consequences extend far beyond the legal community and affect society as a whole. The Court’s growing workload, combined with outdated processes and structural constraints, is compromising its ability to decide matters efficiently and timeously. 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.”

The report identifies two central causes of the current crisis: volume and process. It argues that while the Constitutional Court’s jurisdiction was significantly expanded more than a decade ago, its institutional design and operating procedures remained largely unchanged. Every application for leave to appeal must still be considered by all 11 justices, with a minimum quorum of eight judges required even for preliminary decisions.

The report further argues that the Court’s open-ended “interests of justice” test has unintentionally encouraged speculative appeals, because litigants and legal practitioners cannot reliably predict when leave to appeal will be granted.

FUL’s research compares South Africa’s Constitutional Court with apex courts in countries including Germany, Canada, the United Kingdom, the United States, Singapore, Australia and India. It finds that most comparable courts use smaller panels of judges, professional screening systems and stricter procedural rules to manage large caseloads more efficiently.

The report proposes a range of potential reforms which can be implemented in the short-, medium- and long–term:

• In the short term, practical and procedural reforms could be introduced relatively easily, such as imposing page limits on applications to the Court, developing a more rules-based approach to the interests of justice test, and delivering reasoned judgments explaining why applications for leave to appeal are refused.
• Medium-term interventions include reducing the size of the panel of judges who deal with new applications.
• Long-term interventions could involve more fundamental structural reforms to the Court, such as establishing separate chambers in the Court to deal with constitutional and general matters, merging the Constitutional Court and the Supreme Court of Appeal into a single apex court, or restricting the Court’s jurisdiction through a constitutional amendment.  

The report follows growing public concern over delays at the Constitutional Court, including concerns in 2024 surrounding a proposal to use retired Constitutional Court justices to assist with processing applications for leave to appeal.

FUL says the purpose of the report is to stimulate serious national discussion about how to preserve the effectiveness, legitimacy and constitutional role of the Court.

Chris Oxtoby, Research Consultant for FUL, says:  “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.” 

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Media contacts/interviews:

Sandra Sowray – 079 167 6863 / sandra@prologconsulting.co.za
Dani Cohen – 082 897 0443 / dani@prologconsulting.co.za