Justice Delayed: The Cost Of A Slow Apex Court
Justice delayed is not merely justice diminished. It is, over time, justice called into question.
Written By: Mukundi Budeli
Of all the institutions a constitutional democracy relies upon, the apex court is among the least forgiving of dysfunction. When it falters, the consequences ripple outward through every contract, every investment, and every citizen who depends on the law meaning what it says, when it says it.
South Africa’s Constitutional Court is faltering in the speed of its delivery. In August 2025, the most recent month reported, thirteen cases had been awaiting judgment for longer than six months, well beyond the three months the Judicial Norms and Standards require. The Phala Phala matter took the court seventeen months to finalise. As reported by GroundUp, a recent analysis by Freedom Under Law has put figures to a problem that has been quietly worsening for years.
What makes this difficult to excuse is that the court is not starved of means. Each judge is supported by at least two interns drawn from the strongest law graduates the country produces, alongside a dozen international interns. The court has the finest law library in South Africa and judicial salaries worth over R2.7 million a year. This is not a court that lacks resources - it is one not converting them into timely judgments.
The standard explanation is workload. A 2012 constitutional amendment expanded the court’s jurisdiction beyond strictly constitutional questions to include any case raising an arguable point of law of general public importance. Applications more than tripled, from 118 in 2010 to close to 400 a year. But the expansion of the court’s remit was itself a choice, reflecting a familiar pattern: an institution accumulating a broader mandate than it can discharge. A court that positions itself as the arbiter of every important legal question, rather than the guardian of a defined constitutional order, will inevitably find itself overwhelmed.
Volume alone does not explain the delays. Applications peaked in 2021/22, yet the number of cases the court actually decides has fallen since, and in the 2022/23 period it delivered only 18 percent of judgments within its own three-month target. A shrinking caseload alongside rising delay points inward. The causes are: diminished judicial capacity, the practice of having all judges sit on every matter, and concerns about whether some appointments have met the necessary standard. It has been ten years since the court last sat with a full complement of permanent judges. Apex courts in Germany, Canada, the United Kingdom and India manage heavy caseloads through smaller panels and stricter procedural rules. South Africa’s court has been slower to embrace these disciplines.
It is tempting to view judicial delay as a narrow concern for lawyers and litigants - it is not. The timely enforcement of legal rights is a foundational condition of a functioning economy and a free society. Investors commit capital on the assumption that disputes will be resolved within a knowable timeframe; businesses structure transactions around it. Remove that certainty and the cost of anything that might one day require the courts rises for everyone.
There is a distributional point too often missed. Delay is not neutral in who it harms. A large corporation can absorb the cost of a case that drags on for years; it has the reserves and the legal budget to wait, but an individual or a small business frequently cannot. For them, justice deferred can mean justice abandoned, not because they were wrong on the law but because they could not afford to outlast the queue. A slow court operates as a kind of regressive tax, falling hardest on those least able to bear it. The people the Constitution was meant to empower against the powerful are the ones a sluggish apex court quietly disadvantages.
When the apex court routinely breaches its own standards, it sets a corrosive example for every court below it and erodes the confidence on which judicial authority rests. There is a deeper principle at stake. We readily understand that an unaccountable executive threatens liberty; we are slower to recognise that an unaccountable judiciary does too. A court that exempts itself from the discipline it imposes on others, that cannot be compelled to meet its own deadlines and faces no consequence when it fails, has placed itself beyond the very accountability the rule of law is supposed to guarantee. Justice delayed is not merely justice diminished. It is, over time, justice called into question.
The encouraging part is that the remedies are neither exotic nor expensive. The court could impose strict page limits on applications, adopt a clearer rules-based approach to deciding which cases it hears, and reduce the size of the panel that screens new applications. More fundamentally, it could revisit whether its expanded jurisdiction serves the country well, or whether a court that tries to weigh in on everything inevitably resolves nothing promptly. None of this requires a constitutional amendment or a larger budget. The resources are in place; the talent is in place. What is missing is the will to ensure the highest court delivers on time, as it expects every court beneath it to do. Somewhere in that backlog is a case that matters enormously to someone who has run out of options. They are still waiting. They should not have to be.
Mukundi Budeli is a law graduate from the University of Witwatersrand and an Associate of the Free Market Foundation.
This is an issue I don't usually pay attention to and you are so right, very well written. I particularly agree with this:
"A court that exempts itself from the discipline it imposes on others, that cannot be compelled to meet its own deadlines and faces no consequence when it fails, has placed itself beyond the very accountability the rule of law is supposed to guarantee. Justice delayed is not merely justice diminished. It is, over time, justice called into question."
Brings to mind the question, who judges the judges? Perhaps a fundamental question for all liberal democracies.
Excellent article. Perhaps representing a micro-cosmos of South Africa? More likely, however, a macro-cosmos, on account of the fact that our Concourt is at the pinnacle of our Constitutional Dispensation. (Demonstrates what is often said about a fish rotting from the head down...)