For more than two years, the Constitutional Court precinct has not been used for its main purpose: the hearing of important constitutional cases.

While virtual hearings – which have become the ‘new normal’ – was a necessary measure in response to the Covid-19 pandemic, the State of Disaster has now formally ended.

Courts across the country, including the SCA, are hearing matters in their physical courtrooms, but the Constitutional Court has not done the same.

Nurina Ally, a lecturer in the Department of Public Law at UCT, says the court has not issued any public communication explaining why virtual hearings are still preferred, nor its plans (if any) for a return to in-person hearings.

‘Does this suggest that virtual hearings at the apex court are here to stay?’

In her opinion piece on the Daily Maverick site, Ally notes there are benefits to the court’s virtual hearing format: it is more cost and time-effective; there is less risk of disruption during potential Covid-19 surges; and hearings are live-streamed and recorded so that members of the public can follow online.

However, she says a substantial downside to the fully virtual format is that the actual litigants in the matter – the people most affected – remain entirely unseen.

Ally says this was apparent last week when Blind SA challenged the constitutionality of the Copyright Act.

Members and supporters of Blind SA gathered in numbers and marched to the Constitutional Court. While they would then have normally been seated in court to hear the case, this was not possible in the virtual hearing.

Instead, the litigants were asked to follow the live stream of the hearing on Youtube.

‘The intangible, but powerful effects of the presence of litigants should not be under-valued. At times, the Constitutional Court’s judges have themselves been moved to actively recognise litigants or community members in the courtroom.’

She cites the case of Nokotyana & Others v Ekurhuleni Metropolitan Municipality & Others, where an ‘impactful exchange’ transpired between community members seeking basic service provisioning, the government’s legal representatives and the court.

Then in Minister of Health & Others v Treatment Action Campaign & Others – where the court was filled with expectant TAC activists wearing HIV positive T-shirts – Justice Albie Sachs said he burst into tears as the judges rose and left the court to return to their chambers.

Says Ally: ‘These types of exchanges are simply not possible in a virtual hearing as the people behind the legal debates, those who have the most to lose from the technical legal arguments, are absent. Even the Zoom meeting link is limited to counsel and not shared with litigants, further precluding such exchanges.’

She says it would be unfortunate – and a far remove from the principles of transparency, participation and accountability that famously animate the court’s vision of ‘justice under a tree’ – if this were to be too easily accepted as the ‘new normal’.

Ally adds: ‘With courts across the country returning to in-person hearings, one hopes that the Constitutional Court will soon follow suit – or, if not, then to at least explain why.’

Full analysis on the Daily Maverick site