What does the Court do with the litigant’s application?
The litigant files an application
Litigants apply to the Court for their matter to be heard by filing their applications with the registrar at the general office. A copy is given to each of the 11 Judges, who directly apply themselves to, and engage with, the issues in the application.
All Justices must weigh in
Each of these applications are considered by all the judges of the Constitutional Court, unlike in other senior appeal courts which often delegate this decision-making responsibility to a few judges. The Constitution stipulates that a quorum of the Constitutional Court is eight, so no case can be turned away from the Court without at least eight judges having considered the matter.
Each chamber makes a recommendation
The clerks in each set of chambers share a copy of the application amongst themselves. Each chamber has its own procedures when it comes to reviewing the application. In some chambers, a memo is prepared by one of the law clerks for their judge who then debates the matter with the law clerk. After the internal chamber debate, the Justice will come to a decision and a final memo will be prepared which states whether that chamber thinks the matter should be set down or not.
Justices debate at conference
The justices meet at conference, usually weekly, to debate the new applications. If the majority of the 11 justices vote to grant leave to appeal, meaning to hear the litigant’s matter after the lower courts have heard that matter, then the Constitutional Court will set that matter down for hearing. If the Court is unsure whether permission should be granted, the case will be set down on a certain date so that argument from the parties can be heard as to why the Court should grant permission for the matter to be heard again after the lower court’s judgment on that matter. The justices can also decide not to grant leave to appeal meaning that appeal is effectively dismissed by the Court.
The matter is set down for hearing
Once the Court has decided to hear the matter, each of the opposing parties in the case submits written submissions before the date of argument, so that the judges can familiarise themselves with the case and the position taken by each party.
Sometimes at this point other interested parties may ask to be joined in the proceedings or be admitted as an ‘amicus curiae’ (friend of the court). They too will make written submissions and sometimes give oral arguments if asked by the Chief Justice to do so.
The Court’s workload
The Court receives far more applications for access to the Court than it actually enrols for hearing. There has been a significant increase in the number of cases the Court deals with. For example, in 1995 the Constitutional Court handed down 14 judgments. In 2010 the number was 24. In 2018, the Court handed down 56 judgments. Aside from judgments handed down there are many applications received, considered and dismissed by this Court – currently, about 120-130 per year.
A Court’s discretion
The Court has the discretion whether to hear a matter. The only exception to this is where legislation has already been declared invalid by a lower court and the Court is required to confirm that finding. An example is the judgment of the Constitutional Court that essentially legalised the private use of dagga in Minister of Justice and Constitutional Development and Others v Gareth Prince and others where the High Court had already declared the legislation prohibiting private use of dagga unconstitutional. The case then went to the Constitutional Court for confirmation.