Earlier this year, Freedom Under Law (FUL) released a research report that discusses the challenges that the Constitutional Court faces as it attempts to deal with a significant and increasing workload.

The report describes a court that is overburdened, faced with a significant increase in the number of new applications (seeking leave to appeal), and showing a dramatic increase in the time taken to deliver judgments after cases are heard. These challenges to the functioning of the country’s highest court impact the rule of law and public confidence in the courts, and require serious and meaningful attention to address them.

The report attracted considerable attention on its release. Whilst the news cycle moves on, the issues highlighted in the report remain very much alive. The report’s recommendations are structured accordingly, divided between short-term, “low-hanging fruit”, which can be implemented relatively quickly and easily, including by the court itself. Longer-term solutions, however, will require concerted engagement by a range of actors.

It is worth highlighting some of these longer-term reforms and what they entail.

In doing so, it is helpful (as the report does) to look at the position in other jurisdictions. The report examines the functioning of apex courts in Australia, Canada, Germany, India, Singapore, the United Kingdom and the United States. This analysis makes it clear that the challenges faced by the Constitutional Court are not inevitable but can, at least in part, be attributed to aspects of the court’s institutional design.

We explore these issues by considering some of the medium and long-term interventions identified in the report.

The report suggests that, in the medium term, smaller panels of judges could be used to determine new applications. The use of smaller panels of judges to determine preliminary matters is a feature of the foreign jurisdictions studied in the report. By contrast, the full complement of judges of the Constitutional Court is required to take all decisions, including on whether to grant leave to appeal. The court comprises 11 judges, with 8 constituting a quorum. This is not the norm internationally.

A further lesson which is very apparent from the comparative study is that the use of screening mechanisms staffed by trained legal officers and other extensive professional support can be of great assistance to apex courts in dealing with heavy workloads. The German Constitutional Court, for example, employs nearly 300 people, with a large complement of professional staff assisting the judges. This allows the German court to utilise a sophisticated process to screen and filter new applications before they even reach the judges. Similarly, the famed “certiorari” process of the United States Supreme Court, where law clerks play a central role, allows the court to screen thousands of petitions such that only around 2% are granted.

These approaches suggest that the efficient control of a court’s caseload can depend more on a well-organised professional support system than on the judges themselves.

Potential longer-term solutions identify fundamental structural reforms, such as adopting a German-style model where the court would comprise two separate chambers (or “senates” as described in the German system). This could be combined with a further proposal to merge the Constitutional Court and the Supreme Court of Appeal (SCA) into a single appellate court.

The German Constitutional Court comprises 16 judges, divided into two “senates”, which in turn are divided into three-judge “chambers” (panels). A similar structure was mooted during the process of drafting the South African Constitution. It was suggested that the apex court comprise two chambers, one of which dealt with constitutional matters, while the other dealt with general appeals. The Chief Justice would then assign a case to the appropriate chamber depending on the nature of the matter.

A particular attraction of this approach for many lawyers is that it reduces reliance on interpretation to determine whether the top court has jurisdiction to hear a case.

This is especially relevant in light of another of the core points made in the FUL report, namely concern over the Constitutional Court’s indeterminate application of the “interests of justice” test to determine whether to grant leave to appeal. Under the German-style system, the question could be simplified to determining which chamber of the apex court had jurisdiction to hear an appeal.

This structure would, of course, require consideration of the role of the Supreme Court of Appeal (SCA), currently the country’s second-highest court and the last word on cases that do not reach the Constitutional Court. Should the SCA be retained as an intermediate appellate court with an expanded Constitutional court sitting above it in the court structure? Or should the courts be merged, thereby facilitating the expansion of the Constitutional Court to follow a larger, German-style structure?

This would likely be a fiercely-debated topic.

Those who express concern about losing the intermediate level of appeal are unlikely to be assuaged by the greater use of full bench panels of the high courts to fill the gap, in light of concerns about the quality of justice (including the impact of resource constraints and a shortage of judges) in the high courts.

As with any wide-ranging reforms, the issues of resources (or the lack thereof) will also loom large. And yet, such is the extent of the challenge facing the Constitutional Court, it is not enough to abandon any attempt at addressing the problem due to resource constraints. Doing nothing is not an option.

It is clear that these are complex reforms requiring much thought.

We do not endorse any of them unreservedly, and accept that the pros and cons require careful consideration.

But what emerges clearly is that there are options to address the Constitutional Court’s crisis, which would involve a fundamental revision of our judicial structure, but which also draw on measures that have proven successful in other jurisdictions.

Any consideration of how to address the court’s challenges ought to engage seriously not only with the “low-hanging fruit”, but to consider, seriously, whether more fundamental changes to our top court are ultimately needed to ensure that the court can operate as our system of constitutional democracy requires it to.

First published on EYEWITNESS NEWS.