Meritless litigation is flooding the Constitutional Court, leading to triple the workload since 2010 and triggering a severe backlog crisis. The findings were released by Freedom Under Law (FUL) yesterday.

The research, compiled by Advocates Michael Mbikiwa and Andrew Molver alongside researcher Nicholas Herd, details a system buckled under the weight of desperate litigants. According to caseflow data, applications skyrocketed from 118 per year in 2010 to nearly 400 per year by 2021.

The authors argue at the heart of the problem is the ‘interests of justice’ test – the standard used to determine which cases the apex court will hear. Instead of following a strict framework, the court weighs up various case-specific factors.

FUL argues that this loose standard makes outcomes entirely unpredictable for legal practitioners trying to advise their clients.

‘The test has become so porous that a litigant cannot be advised, with any reasonable probability, as to the decision that a court is likely to make,’ the report states, according to News24.

This unpredictability allegedly encourages lawyers to treat the Constitutional Court as a roll of the dice. Legal teams allegedly flood the court with hopeless applications, knowing that every justice is legally required to review and consider them.

The study was backed by a quantitative analysis of court annual reports, official websites, relevant case law, and academic literature. FUL warns that, without urgent reform to how cases are filtered, the highest court in the land will continue to drown in routine appeals.

The report states that, in 2012, the average time to decide a case in chambers was 33 days. By 2024, at least half of all petitions filed that year were still pending after six months. Since 2021, it has taken an average of 210 days to hand down judgment from the date of the initial hearing.

The origins of the ‘court’s current crisis’, the report argues, can be traced directly to the expansion of the Constitutional Court’s jurisdiction.

Former Chief Justice Raymond Zondo acknowledged as much when he envisioned an ultimately unsuccessful scheme in which retired Justices would read applications and prepare a draft memorandum.

He said the backlog ‘arose as a result of a huge increase in such applications after the expansion of the jurisdiction of the Constitutional Court some years ago’, and that ‘the expansion of the jurisdiction was not accompanied by any increase in the human resources necessary to deal with such an increase in the workload of the court’.

FUL’s central proposed remedy is structural, says News24.

Rather than continuing to place every incoming application before a full Bench of 11 justices – eight of whom must be present as a minimum quorum – the report proposes the creation of smaller judicial assessment panels to act as a filter.

These panels would be ‘confined to ruling on compliance with the rules, jurisdiction, and leave (to appeal)’, with the power to dismiss unmeritorious applications outright.

The report suggests that if there were a dissenting voice on any panel, it would then trigger an automatic referral to the full Bench.

To provide operational support to the panels, a dedicated screening unit of trained legal officers would prepare detailed memoranda summarising each application and making recommendations before any judge sees the file.

FUL acknowledges the reform would not come cheaply in constitutional terms, as ‘the adoption of this assessment panel model would require a constitutional amendment’.

Full News24 report