Constitutional Court woes must be top of Chief Justice Mandisa Maya’s agenda

It is impossible to ignore recent examples of truly woeful judgments emanating from the Constitutional Court. Two recent judgments dealing with equality law illustrate this point.

The appointment of Justice Mandisa Maya as Chief Justice of South Africa has been widely lauded by observers from across the political spectrum. Unlike her two predecessors (Moegoeng Moegoeng and Raymond Zondo), her appointment was uncontroversial, and the enthusiasm and goodwill she enjoys will stand her in good stead as she tackles the many challenges facing the Constitutional Court and the judiciary more broadly.

It is also significant that Maya will serve as Chief Justice for a lengthy period, which may enhance her authority as leader of the South African judiciary and strengthen her hand in addressing the problems faced by the ConCourt and the judiciary more broadly.

Constitutional Court justices normally serve for a single 12-year term (or until they reach the age of 70), which is why Chief Justice Zondo (who was appointed to the Constitutional Court in 2012) only served as Chief Justice for two years. Justice Maya, who was born in 1964, was only appointed to the Constitutional Court in 2022, meaning she could serve as Chief Justice until 2034.

South Africa’s Chief Justice serves a dual role, first as the head of the entire judiciary, and second as head of the Constitutional Court. In this column I want to focus on the challenges our new Chief Justice faces in her role as head of the Constitutional Court, both as administrative head of the court and as a judge.

As head of the Constitutional Court, the Chief Justice plays an important role to ensure the court functions efficiently and effectively. It is no secret that the court does not currently function as efficiently and effectively as it should. There are often long delays in handing down judgments, with several cases heard in November 2023 still awaiting judgment 10 months later.

This is clearly an untenable situation that cannot be explained away completely by pointing to the increased workload of the court. Firm but wise leadership is required from our new Chief Justice to ensure that individual judges allocated the responsibility to write a particular judgment complete the task within a reasonable period.

The court is also struggling to deal timeously with the large number of applications it now receives. Many of these applications are ultimately dismissed without a hearing, but as these decisions must be taken by the court as a whole, a decision can only be taken after all the available justices on the court have familiarised themselves with the case.

To address this problem, it might be necessary to pass legislation to allow smaller panels of three justices to decide on whether a case should be set down for a hearing before the full court.

The matter would be complicated if, as some might argue, such an arrangement would be in conflict with section 167(2) of the Constitution, which requires that a “matter before the Constitutional Court must be heard by at least eight judges”.

If this is indeed the case, a constitutional amendment might be needed as it is clear that the current system is not tenable.

There is also a pressing need to make Constitutional Court documents more accessible to the public. It is currently very difficult to keep track of applications lodged with the court, and unless one lives in Johannesburg and can go to the court oneself, one cannot easily access the documents lodged in an application until the case has been set down for oral hearing.

To make things worse, the court’s website seems to have been designed at the time of the rinderpest and is not user friendly, to say the least. The website is not always timeously and consistently updated, which means finding the relevant documents that ought to be available on the site remains a hit-and-miss affair.

But by far the most pressing issue facing the court is the perception that the quality of the judgments produced by the court are not always up to scratch.

It would be tempting to dismiss all criticism of the court as self-serving and politically motivated (as it often is), or as motivated by a rather formalistic “highly structured, technicist, literal and rule-bound” view of the law that was dominant in the pre-democratic era (as it often is).

It would also be tempting to point to the many innovative and groundbreaking judgments produced by the court in recent years as evidence that harsh criticism of some recent Constitutional Court judgments are not warranted.

But it is impossible to ignore recent examples of truly woeful judgments emanating from the court. Two recent judgments dealing with equality law illustrate this point.

In Mahlangu and Another v Minister of Labour the majority declared a provision of the Compensation for Occupational Injuries and Diseases Act unconstitutional and invalid because it expressly excluded domestic workers from the social security benefits provided for in the act.

It did so in part because it found the provision unfairly discriminated against domestic workers in conflict with section 9(3) of the Constitution. The judgment contains an excellent discussion on the role of intersectional discrimination in cases like this, but completely fails to engage with the applicable law.

When I first read the judgment, I thought that some pages must be missing as it did not explain or apply the relevant section 9(3) test (the “Harksen test”).

The test requires the court to establish whether there is discrimination, and if there is discrimination, whether the discrimination is unfair having regard to a list of factors stipulated in the Harksen case.

But the judgment fails to mention any of this, and makes no attempt at applying the test. While I believe the conclusion that the provision unfairly discriminated against domestic workers on the grounds of race, sex and gender was correct, there is no indication that this conclusion was reached by applying the law.

In mitigation, one could point out that the judgment was written by an acting judge, but this does not explain why six permanent judges of the court signed on to the judgment despite the fact that the minority judgment pointed out the problem, concluding that the majority’s “failure to apply the Harksen test makes it difficult to determine whether the applicants have established that the impugned provision constitutes unfair discrimination”.

Similarly, in Rafoneke and Others v Minister of Justice and Correctional Services a unanimous court held that a provision in the Legal Practice Act that precluded most categories of persons who are neither citizens nor permanent residents of South Africa from being admitted and enrolled as legal practitioners in South Africa did not unfairly discriminate against non-citizens in terms of section 9(3).

While the judgment does mention the Harksen test, it does not mention or apply the factors a court must consider to establish whether or not the discrimination is unfair. Having ignored half of the applicable legal test, it is no wonder that the court wrongly concluded that no unfair discrimination took place in this instance.

In some instances, judgments have failed to explain the entirely foreseeable ramifications of the judgment, a problem sometimes made worse by a vague or ambiguously phrased order.

The judgment of the court in Electoral Commission v Minister of Cooperative Governance and Traditional Affairs is a case in point. The case dealt, among other things, with an attempt to postpone the local government election scheduled for October 2021 to early in 2022 due to Covid. The court declared the proclamation of the October election date invalid and provided the IEC with an opportunity to reopen voter registration.

As the ANC had failed to submit its party lists and ward candidate nominations in respect of 20 municipalities and 598 wards on time, the pivotal question was whether the order opened the door for the IEC to extend the deadline for submission of lists which would allow the ANC and other parties to correct the mistake.

The judgment itself failed to provide answers to this question. To make things worse, the order handed down by the court was, at best, vague and confusing on this point.

The IEC then proceeded to extend the deadline for submission of party and ward candidates’ lists, which led to another application by several political parties to have that IEC decision to extend the deadline declared invalid. While the original judgment was written under severe time pressure, I am not sure this explains the silence, as it is difficult to imagine that the court was not aware that its silence on this pivotal question would create confusion and political controversy.

One of the great strengths of the Constitutional Court is that all the available justices (or at least a minimum of eight justices) consider each case argued before it.

While the judgment is usually written by an individual judge, it should ideally reflect the collective wisdom of all the participating judges. But this is best achieved in a collegial atmosphere in which the free exchange of ideas and robust debate are welcomed and encouraged by members of the court with a strong shared commitment to the court.

Some of this collegial spirit was clearly lost during the term of Chief Justice Moegoeng Moegoeng, as suggested in a 2022 article co-authored by then recently retired justice Edwin Cameron in the Constitutional Court Review.

Perhaps some of the glaring missteps highlighted above might have been avoided had this not been the case. As a relative newcomer to the court who has spoken movingly in interviews about the importance of the “human element” in her work, Chief Justice Maya seems to be well placed to address this problem.

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