Nurina Ally is a Senior Lecturer at the University of Cape Town’s Department of Public Law. She writes on a personal level. The opinions expressed do not necessarily reflect those of GroundUp.
The records on the website of the Constitutional Court are an indispensable resource for attorneys, academics, journalists, and the general public. However, recordkeeping has been neglected in recent years, and crucial records are occasionally missing.
To ensure transparency, involvement, and accountability in the Court’s work, the website of the Constitutional Court must contain accurate, up-to-date information.
Upon its inception, the Court appeared to be at the forefront of online record-keeping. When Justice Dikgang Moseneke initially joined the Court, he was so impressed by its website that he referred to it as a “marvel.” However, the enthusiasm for innovation has waned. Worse, indications of neglect are seen.
Until recently, court documents were put to the Court’s website as soon as they were filed. The documents were available to interested parties well in advance of the hearing date. This allowed for the identification of upcoming hot-button issues and the analysis of contributions before to hearings. Such access is of interest and value to litigators, researchers, journalists, and court observers. Members of the public who are interested in attending hearings and monitoring the work of the nation’s highest court will also find these records useful.
DOCUMENTS OF THE CONSTITUTIONAL COURT UPLOADED
However, there has been an unexplained departure from the Court’s customary practice. Currently, submissions in upcoming cases are made public only a few days prior to the hearing (if then). This makes it difficult to anticipate the topics that the Supreme Court will decide. As I write this, the first term of the Court for 2023 will begin in a matter of days. However, the filings for the first case to be heard were not uploaded until Monday. There is no additional information available on the court roll.
To be fair, the Court does release a case synopsis the day before it is scheduled to be heard. These are also posted to the Twitter account of the Court. This is a positive development, but these case-by-case alerts do not provide court viewers with the opportunity to interact with the topics that the Supreme Court has outlined for its upcoming term.
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In addition, since June 2022, the Court’s ‘case flow’ records have been flat. This indicates that the status of newly submitted applications with the Court has not been updated publicly in seven months. The most current update on the status of reserved court decisions is older than a year. In a recent study, a colleague and I found that the quality and completeness of the Court’s case flow records leave much to be desired. However, these documents represent the public’s only window into the majority of the Court’s activity (as most applications are decided in chambers, with a relatively small proportion set down for hearing). The public’s access to the Court’s decisions is inadequate when these records are not made available or when they are gravely out-of-date.
MISSING DOCS
In addition to records not being updated in a timely manner, online case files have gaps. In the past, blatant omissions were uncommon; nevertheless, it is no longer odd if a case file is incomplete. This is concerning, as the Court’s website serves as a digital repository of every case it has ever heard. If the original filings are lost or destroyed, it is possible that all case documents will be lost.
The delays and holes in its online records reflect what appears to be a general degradation in the Court’s case management systems, which is cause for concern. In recent years, there have been numerous unsettling stories of court applications and filings going missing. In at least two cases in 2012, justices were left scrambling because they were not provided with all essential submissions. In one instance, the Court was forced to “rescind” its ruling shortly after it was issued. In another instance, the issue was delayed and ultimately tabled. These embarrassing and costly instances threaten to erode public faith in the nation’s highest court.
It is positive that the Court’s new leadership (Chief Justice Raymond Zondo and Deputy Chief Justice Mandisa Maya) have acknowledged the need to enhance certain aspects of its operation. Ensuring that the Court’s online records are correct and updated on a regular basis is a small but significant action that will promote the constitutionally mandated qualities of responsiveness, transparency, and accountability. Ultimately, the Court has a responsibility to protect these ideals.
»Disappearance of Constitutional Court online records«