PER/PELJ - Pioneer in peer-reviewed, open access online law publications
Authors Nurina Ally
Affiliation >University of Cape Town, South Africa
Email nurina.ally@uct.ac.za
Date Submitted 22 September 2024
Date Revised 1 October 2024
Date Accepted 1 October 2024
Date Published 24 October 2024
Editor Prof W Erlank
Journal Editor Prof W Erlank
How to cite this contribution
Ally N et al "A Snapshot of the Constitutional Court's Docket – January to July 2024" PER / PELJ 2024(27) - DOI http://dx.doi.org/10.17159/1727-3781/2024/v27i0a20135
Copyright
DOI http://dx.doi.org/10.17159/1727-3781/2024/v27i0a20135
Abstract
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Most commentary on the Constitutional Court focuses on its |
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Keywords
Constitutional Court; judiciary.
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1 Introduction
The Constitutional Court currently delivers around 50 judgments a year. Yet this is just a small portion of the Court's overall workload. The vast majority of applications made to the Court are disposed of in chambers, without a fully reasoned judgment. Over the past decade, the total number of petitions filed with the Court has increased over three-fold.
1
1 In 2010, the Court received 118 applications. In 2023, over 350 applications were filed with the Court. See Ally and Boonzaier 2022 CCR 330. 2 Following public criticism, a proposal by the former Chief Justice to have retired judges support the processing of new applications was abandoned; see Rabkin 2024 https://www.timeslive.co.za/sunday-times-daily/news/2024-02-07-concerned-casac-writes-to-chief-justice-over-yacoobs-concourt-role/; February and Oxtoby 2024 https://www.dailymaverick.co.za/opinionista/2024-03-24-chief-justices-concourt-proposals-present-opportunity-for-measured-judicial-reform/. 3 Justice Maya, now Chief Justice, has been a vocal proponent of such an approach; see Ferreira 2024 https://mg.co.za/news/2024-05-21-maya-proposes-increasing-number-of-concourt-judges-to-15/. 4 Again, Justice Maya has championed this proposal; see Wicks 2024 https://www.ewn.co.za/court-capacity-among-mayas-top-priorities-if-appointed-as-chief-justice/. 5 An exception has been annual reports on Constitutional Court statistics published by the South African Journal on Human Rights. Starting in 2005, the reports included useful data about cases dismissed in chambers (see Bishop et al 2006 SAJHR 529-531). Unfortunately, the journal has not published an annual report since 2020. 6 For more on the problems with the Court's record-keeping, see Ally and Boonzaier 2022 CCR 320-323; see also Ally 2023 https://groundup.org.za/article/ constitutional-court-where-are-the-online-records/. 7 We consulted the following records on the Court's website: Case flow summary records as at 26 July 2024; Cases dismissed records as at 26 July 2024; Cases awaiting directions records as at 26 July 2024 (available at Constitutional Court 2024
https://www.concourt.org.za/index.php/caseload/caseflow-summary). We also considered the newly created "Orders without a hearing" section on the Court's website (see Constitutional Court 2024 https://collections.concourt.org.za/handle/
20.500.12144/38333).
monitored and tracked trends in petitions filed between 1 January 2024 and 26 July 2024 (the first two terms of the Court year). We have also extracted information relating to petitions filed in 2023, although this is more limited since the Court does not keep an archive of older records on its website.
We begin by providing an overview of the number of petitions received by the Court between January 2023 and July 2024, as well as the rate at which the Court appears to be processing such applications. We find that there are large gaps in the Court's disposition of new applications, and that the processing time for most petitions is relatively prolonged. We then consider the nature of the petitions filed with the Court during the first two terms of 2024. Our analysis includes an overview of the route that litigants have travelled in reaching the Court, the area(s) of law the petitions engage, and for cases which were dismissed, the reasons for dismissal. Such information can be revealing of litigant behaviour, as well as trends in the Court's decision-making. The data suggests that the Court is inundated with generalist appeals, as opposed to matters raising issues of special constitutional or public importance. We conclude by briefly outlining some recommendations for further consideration.
While our analysis only offers 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 functioning.
2 Number and processing rates of new applications
In addition to concerns over the Court's slow judgment turnaround times,
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8 Ally and Boonzaier 2022 CCR 317-342, see also Balthazar 2024 https://www.dailymaverick.co.za/opinionista/2024-03-24-from-turtle-to-snail-judicial-pace-in-south-africa-was-a-key-help-to-stalingrad-practitioners/. 9 Bates 2022 https://www.businesslive.co.za/bd/national/2022-02-01-case-backlog-judicial-criticism-and-gender-at-issue-in-madlangas-jsc-grilling/#google_vignette. 10 Bates 2021 https://www.businesslive.co.za/fm/features/cover-story/2021-09-30-who-will-be-sas-new-chief-justice/.
In 2023, the Court received 355 petitions. In the first seven months of 2024 (until 26 July), the Court had already received 217 new applications. Error! Reference source not found. shows the percentage of petitions filed in 2023 and 2024 that were either dismissed or awaiting directions as at 26 July 2024. The first column also shows the percentage of applications that were dismissed between 1 January and 24 December 2023.
Figure 1: Percentage of petitions filed in 2023 and 2024 dismissed or awaiting directions as at 26 July 2024
At the end of 2023, less than half (45%) of the applications filed that year had been dismissed in chambers.
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11 A total of 161 petitions. 12 Five petitions filed in 2023 were decided through reasoned judgments between 1 January 2023 and 26 July 2024; and 4 cases were withdrawn by November 2023. 13 The Court recorded 56 dismissals as at 26 July 2024, however this omitted one case, Umkhonto Wesizwe Party v The Chief Justice of The Republic of South Africa CCT 178/24, which we have included. 14 Notably, 4 of the petitions filed in 2024 were set down for hearing on an urgent basis and subsequently decided through 2 reasoned judgments, namely: Electoral Commission of South Africa v Umkhonto Wesizwe Political Party 2024 7 BCLR 869
(CC); African Congress for Transformation v Electoral Commission of South Africa; Labour Party of South Africa v Electoral Commission of South Africa; Afrikan Alliance of Social Democrats v Electoral Commission of South Africa 2024 8 BCLR 987 (CC).
Taken together, by 26 July 2024, the Court had 287 pending applications before it (filed in either 2023 or 2024).
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15 Including 130 petitions carried over from 2023 and 157 petitions filed in 2024. We have not considered the status of applications filed in 2022, although it is possible that the Court also has petitions pending from that year.
Figure 2: 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
Our results show that the processing of most petitions at the Court can take more than 3 months. For the period we reviewed, around half of pending petitions before the Court had not had any movement for 6 months or longer,
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16 Comprising 130 petitions filed in 2024 and 17 filed in January 2024. 17 These were 68 petitions filed between January and June 2023.
Notably, according to the Court's records, there was a four-month period – from December 2023 to April 2024 – during which the Court recorded no activity in deciding pending applications at all.
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18 The last case dismissed in 2023 was on 22 November 2023, and the first recorded dismissal in 2024 was on 5 April 2024.
March 2024.
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19 See Ally and Benjamin 2024 https://groundup.org.za/article/constitutional-court-where-are-the-judgments/.
We would ideally be able to compare current processing times against previous year-on-year averages. Starting in 2006, the South African Journal on Human Rights reported, on an annual basis, the average time taken to decide a case in chambers.
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20 Bishop et al 2006 SAJHR 530. 21 Tungay et al 2015 SAJHR 423. 22 Ally and Boonzaier 2022 CCR 331. 23 As evidenced by the fact that, as at the time of writing, the majority of judgments handed down in 2024 were for cases filed in 2022.
3 Route to Court of petitions filed in 2024
The Court's case flow summary, as published on its website, records the rule in terms of which each petition has been filed. From this information, we were generally able to determine whether a petition was made as an application for leave to appeal (under Rule 19 of the Constitutional Court Rules),
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24 GN R1675 in GG 25726 of 31 October 2003. 25 We have not used the Court's designation of an application in 2 cases. In Paballo Mothulwe v Labour Court, Johannesburg CCT 13-24, the Court's records indicated that the application sought direct access but we categorised it as an appeal as we found a lower court judgment in the matter. Portia Nonhlanhla Siska v Nedbank CCT 14-24 was only marked as an "urgent application", but we categorised this as an appeal as we found a lower court judgment for the case.
issues and direct access on other issues. The origin of the application was unknown in 4 cases.
Figure 3: Route to court of all Constitutional Court petitions filed between 1 January 2024 and 26 July 2024
Based on the names of the parties listed in the applications, we conducted case searches to locate the lower court judgment against which an appeal was likely sought.
Figure 4
shows the proportion of petitions originating from various lower courts, where known. Just over a third of all petitions (around 36%) sought leave to appeal against a High Court judgment. Litigants in some of these cases would have appealed directly to the Constitutional Court (without having engaged the Supreme Court of Appeal).
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26 The Court's information on applications for direct leave to appeal appears to be unreliable. Only 2 cases were marked as direct leave to appeal application in the Court's case flow summary. However, we found at least 5 cases that were dismissed for not making out a case for direct appeal.
Figure 4: Route to court of petitions filed between 1 January 2024 and 26 July 2024
In respect of appeals against judgments of High Courts, most of these judgments (19% of all petitions filed) are from the Gauteng Division of the High Court (comprising both the South and North Gauteng divisions). The lowest number of appeal petitions come from the Mpumalanga and Northern Cape divisions. Error! Reference source not found. shows the percentage of petitions originating from each of the High Court divisions.
Figure 5: Percentage of petitions filed in 2024 originating from each of the High Court divisions; 1 January 2024 - 26 July 2024
4 Subject matter of petitions
Where we were able to source the lower court judgment that was the likely subject of an appeal, we identified the areas of law that the appeal might engage. We say "might" because, without access to the underlying petitions, we cannot be certain of the basis on which an application was brought. Nonetheless, our tentative analysis offers some insight into the areas of law that appeal applications likely engage, as set out in Figure 6 . The graph shows the percentage of cases which raised a particular area of law. Where a case raised multiple areas of law, we counted these more than once.
The most prevalent topics emerging across the cases were civil procedure, administrative law,
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27 We include here judicial review applications based on the principle of legality.
Just over 10% of cases engaged a range of other issues. These included 6 cases on local government, 5 on the right to equality, 4 tax-related matters, 2 cases involving customary law, 2 children's rights cases, 1 case on competition law, 1 matter concerning the right to privacy, 1 case on the right to freedom of expression, and 1 raising a claim based on the right to electricity. We were not able to identify the subject of the petition for approximately 16% of petitions filed between January and July 2024.
Figure 6: Percentage of petitions filed between 1 January 2024 and 26 July 2024 raising certain areas of law
5 Reasons for dismissal
Historically, orders issued by the Court in chambers were not published (even though the overwhelming number of applications made to the Court are determined this way). In 2024, in a welcome development, the Court began publishing "orders without a hearing" on its website. This enables the public to gain more insight into the Court's functioning, particularly the basis on which petitions are summarily dismissed. While some of the Court's orders have not been uploaded (a practice we hope will improve in time), we were able to determine the reason for dismissal in respect of 40 of the 57 applications filed and dismissed in 2024.
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28 Orders in chambers are generally for dismissal of a case. Although the Court has, on at least one occasion, issued an order in chambers for an appeal that succeeded (Dlodlo v Minister of Constitutional Development CCT 237/23).
The Court's reasons for dismissal generally fall into four categories: (i) the application fails to engage the Court's jurisdiction;
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29 This is where neither a constitutional issue nor an arguable point of law of general public importance has been raised. 30 These categories are, of course, imperfect. For example, whether a point of law is "arguable", though technically regarded as a matter of the Court's jurisdiction, might
seem to overlap with the question of whether it has "reasonable prospects of success". And whether it is "in the interests of justice" to hear the appeal might encompass many issues, including ones that bear on the other categories too.
there was more than one reason for dismissal, 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 it was not in the interests of justice to grant leave to appeal. We were unable to find the orders in 17 of the 57 cases dismissed in 2024 (approximately 30%).
Figure 7: Reasons for dismissal of petitions filed in 2024 and dismissed between 1 January 2024 and 26 Jul 2024
Notably, of the petitions for which the reason for dismissal was known, the majority (57.5%) were dismissed without costs. Figure 8 shows the percentage of petitions, filed between January and July 2024, which were dismissed with or without costs according to category of dismissal, where known. Petitions dismissed for not engaging the Court's jurisdiction attracted the most cost awards (which were ordered in 11 of the 16 cases, or 69%, in that category). Costs were awarded in only 3 of the 13 cases (23%) dismissed for having no prospects of success; 2 of the 11 (18%) cases were dismissed for not making out a case for direct access or direct appeal; and 1 of the 2 (50%) cases where it was not in the interests of justice to grant the appeal.
Figure 8: Percentage of petitions filed in 2024 dismissed with or without costs for each category of reasons for dismissal
6 Conclusions
While our analysis of the Court's docket has only covered the first half of 2024, there are already some eye-catching trends. The length of time the Court takes to respond to petitions – over a year in some cases – is certainly concerning. Our data confirms speculation that the Court is struggling to process petitions timeously.
The nature of petitions filed with the Court is also revealing. It is striking, for example, that at least 28% of petitions were rejected for failing to engage the Court's jurisdiction (i.e. the case neither raised a constitutional issue, nor an arguable point of law of general public importance). Having perused the lower court judgments against which appeals are sought, it is evident that many litigants approach the Court as a "last chance" and are simply exhausting all available options in the appeal system, rather than raising matters of special public or constitutional concern. It is telling that almost a fifth of appeal petitions are in respect of labour matters, which, for the most part, appear to be run-of-the-mill cases challenging the fairness of dismissals. Similarly, many of the criminal appeals are directed at correcting the lower court's application of established legal principles to the facts, as opposed to raising a novel or controversial issue of law. The number of direct access applications made to the Court is also noteworthy. Of the 19 applications made, almost half were dismissed for failing to make out a case
for expedited access.
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31 The remaining applications were still awaiting directions.
Of course, it is understandable that litigants will seek to utilise every avenue of recourse available to them. Indeed, when the Court's jurisdiction was expanded by the Constitution Seventeenth Amendment Act 72 of 2013,
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32 The Amendment widened the Court's jurisdiction from "constitutional matters" only to any matter that involves "an arguable point of law of general public importance". For more background on the amendment, see Cohen 2021 CCR 5-7. 33 Lewis 2005 SAJHR 520-523; see also Democratic Governance and Research Unit 2011 https://law.uct.ac.za/sites/default/files/media/documents/law_uct_ac_za/2353/apexcourt_2011.pdf. 34 For recent commentary on the Court's "jurisdictional quagmire", see Cohen 2021 CCR 3. The problem is not unique to South Africa; see, for example, Khaitan 2020 ILR 1-30 (on the Indian Supreme Court's "identity crisis" between its general appellate function and role as a constitutional court). 35 Cohen 2021 CCR 1-49 and Loxton 2023 CCR 292 offer suggestions in this direction. There have also been similar debates elsewhere. Commentators on the Supreme Court of India, for example, have urged a more selective approach to the admission of matters with priority being given to the most serious cases which raise a constitutional issue or legal questions of general importance; see Chandra, Kalantry and Hubbard Court on Trial 14-20, 29-38 and Khaitan 2020 ILR 26-27. 36 Rebecca Gore must be credited for this suggestion. 37 See, for example, Chandra, Kalantry and Hubbard Court on Trial 14-38 and Khaitan 2020 ILR 1-30.
We share our findings at a pivotal moment – a new era of judicial leadership has just begun, and with it, we hope, a renewed focus on strengthening the Court's capacity, efficiency and rigour. We have demonstrated that by collecting information on all petitions filed at the Court (and not just judgments), we can gain greater insight into the Court's overall functioning. Consistent engagement with accessible data of this sort can inform proposals for reform and enhance transparency and accountability around the Court's daily work.
Bibliography
Literature
Ally and Boonzaier 2022 CCR
Ally N and Boonzaier L "The Constitutional Court's Efficiency: Statistics from the Mogoeng Era, 2010–2021" 2022 CCR 317-342
Bishop et al 2006 SAJHR
Bishop M et al "Constitutional Court Statistics for the 2005 Term" 2006 SAJHR 518-533
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African Congress for Transformation v Electoral Commission of South Africa; Labour Party of South Africa v Electoral Commission of South Africa;
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Dlodlo v Minister of Constitutional Development CCT 237/23
Electoral Commission of South Africa v Umkhonto Wesizwe Political Party 2024 7 BCLR 869 (CC)
Paballo Mothulwe v Labour Court, Johannesburg CCT 13/24
Portia Nonhlanhla Siska v Nedbank CCT 14/24
Umkhonto Wesizwe Party v The Chief Justice of The Republic of South Africa CCT 178/24
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Constitution Seventeenth Amendment Act 72 of 2013
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GN R1675 in GG 25726 of 31 October 2003
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caseflow-summary
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Rabkin F 2024 "Concerned" CASAC Writes to Chief Justice Over Yacoob's Concourt Role https://www.timeslive.co.za/sunday-times-daily/news/2024-
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List of Abbreviations
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CCR |
Constitutional Court Review |
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ILR |
Indian Law Review |
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SAJHR |
South African Journal on Human Rights |