Do I think that the Constitutional Court is not delivering on its judgment in Phala Phala because it’s trying to cook up ways to protect the president? No. But the delay in delivering a seminal judgment brings with it the consequence of justified doubt. And in that lies a massive problem.
In December 2022, a respected panel of the country’s top legal minds, including a former Chief Justice, presented a report to Parliament. They were tasked with determining whether President Cyril Ramaphosa had a case to answer and whether impeachment proceedings should follow.
This was in relation to the 2020 robbery of $580 000 in cash hidden in a couch at his Phala Phala farm in Limpopo. There has been plenty of political spin and there is still no full clarity in the public domain. But what is known is that a large sum of foreign currency was stolen and the source of that cash will always remain a cloud over the President’s head. The panel told Parliament that there was enough reason to believe the president may have been guilty of misconduct and may have acted inconsistently with the Constitution. But the political timing dictated what followed. It was just before the ANC conference. The party still held a majority in Parliament, whipped its members, and secured a vote against adopting the report.
Then the EFF vowed to challenge that decision. By 2024, it argued before the Constitutional Court that Parliament had acted irrationally. The case was thoroughly debated at the apex court. I remember sitting in court and thinking that this is the kind of matter that will be as seminal as the 2016 Nkandla judgment was for our body politic. It involves the top of the executive, the top of the legislature, and is now being arbitrated by the apex of the judiciary. To have this matter finalised is undoubtedly urgent.
But now, more than 470 days later, there is no movement. And for the EFF, which has repeatedly marched on the court, this has all the hallmarks of something suspicious. And with every day that passes they are more legitimised in their criticisms. But this delay is just a symptom of a much deeper problem.
A report by journalist Dianne Hawker points out that the Phala Phala matter is the longest the Constitutional Court has ever taken to deliver judgment. This means, whichever way the court rules will be consequential. If it takes the EFF’s side now, it risks being seen as having fallen prey to public pressure. If it sides with Parliament, the delay itself will invite scrutiny.
Chief Justice Mandisa Maya knows just how politically charged this matter is. She has conceded that the public could reasonably interpret the delay as something untoward. There is no easy way to explain it. But there’s awkward realities the country has to also contend with.
Since a 2013 decision that effectively made the Constitutional Court the final arbiter in all legal matters, not only those involving constitutional issues, the workload of the court has increased significantly. Yet there has not been a corresponding increase in resources. The President himself acknowledged this last year. And now, the Chief Justice is not only responsible for judgments but also serves as the administrative head of the judiciary. The Office of the Chief Justice operates much like a government department, without equivalent resourcing.
Then there is the question of capacity. There are vacancies on the court that the president must fill. The court has had to rely heavily on acting justices. It is now nearly five full months since the Judicial Service Commission interviewed and recommended five judges for President Ramaphosa to select two for appointment to the Constitutional Court.
The president has not yet made these appointments. Experts say this leaves the highest court in the land to hobble along without a full complement of 11 permanent judges for the tenth year in a row. There is also the issue of support.
Research by academics Nurina Ally and Leo Boonzaier shows that, over the period between 2010 and 2024, the Constitutional Court’s performance has been gradually declining. The court is taking longer to hear cases and deliver judgments.
These are not abstract concerns. They have been raised in official reports and acknowledged by the Chief Justice herself. There have also been ongoing discussions within the executive about better funding the judiciary, with some movement in the most recent budget cycle. But this is not enough to explain the delay to an ordinary, rational person.
So the question inevitably arises. Is the president dragging his feet on judicial appointments in a way that weakens the courts? And if there is even a perception of that, it needs to be addressed. In the immediate term, a solid judgment in the Phala Phala matter must be delivered, and delivered speedily. I don’t have to remind the Constitutional Court that justice delayed is justice denied. Because whichever way the judgment goes, it will carry enormous weight.
No serious legal observer can ignore the dent this unprecedented delay has caused to the standing of the court. Once the Phala Phala judgment is delivered, there must be an immediate intervention to ensure this never happens again. This moment is awkward for our democracy. And it carries real risks.
This is no longer just about one judgment. It really is about the credibility of the court itself. The longer the silence stretches, the easier it becomes for suspicion that something is “being cooked” behind the scenes to fill the gap. And we all can agree that the Constitutional Court does not trade on power, it trades on trust.
And right now, that trust is being tested.
