Brief Summary

Constitutional Law — Application for rescission — Justices of the Constitutional Court disqualified from adjudicating due to conflicts of interest — Applicants sought rescission of an order dismissing their application for leave to appeal — Court held that the principle in Hlophe v Freedom Under Law applies, and that the absence of quorum precludes adjudication — Application for rescission dismissed as the order was not erroneously granted in the absence of the applicants.

Comprehensive Summary

Summary of Judgment

Introduction

The proceedings were an application for rescission brought in the Constitutional Court. The applicants were Baaitse Elizabeth Nkabinde and Christopher Nyaole Jafta, both Justices of the Constitutional Court. The principal respondents were the Judicial Service Commission (JSC), the President of the Judicial Conduct Tribunal, the Minister of Justice and Constitutional Development, and Xolisile Khanyile NO.

The rescission application targeted an earlier order of the Constitutional Court dated 16 May 2016, in which the Court had summarily dismissed the applicants’ application for leave to appeal against a decision of the Supreme Court of Appeal. The 16 May 2016 dismissal was based not on the merits of the contemplated appeal, but on the principle governing incapacity of the Court due to disqualifying conflicts and resulting lack of a quorum, as articulated in Judge President Hlophe v Freedom Under Law [2012] ZACC 4; 2012 (6) SA 13 (CC); 2012 (6) BCLR 567 (CC).

The general subject-matter of the broader dispute arose from a long-running complaint lodged in 2008 with the JSC by the applicants and other present and former Justices of the Constitutional Court against Judge President John Hlophe. The rescission application, however, was concerned narrowly with whether the Constitutional Court’s summary dismissal of the leave-to-appeal application could be rescinded on the basis alleged by the applicants.

Material Facts

In 2008, the applicants (together with a number of past Justices of the Constitutional Court) lodged a complaint with the JSC against Judge President Hlophe. The subsequent history of that complaint had been addressed in multiple reported judgments, and the Court considered it unnecessary to restate the full chronology for purposes of determining the rescission application.

In October 2013, the applicants instituted a review application in the South Gauteng Local Division of the High Court. Among other relief, they sought to set aside a decision of the JSC to refer the complaint to the Chief Justice (as chairperson of the Judicial Conduct Committee) for consideration, and they sought a declaration that section 24(1) of the Judicial Service Commission Act, 1994 was unconstitutional. A Full Bench dismissed the review application with costs and refused leave to appeal.

The applicants then sought relief in the Supreme Court of Appeal. The Supreme Court of Appeal dismissed the appeal on the merits but interfered with the High Court’s costs order. The applicants thereafter brought an application for leave to appeal to the Constitutional Court against the Supreme Court of Appeal decision.

When the Constitutional Court considered the leave-to-appeal application on 16 May 2016, it did so in accordance with its established practice for leave applications, namely deliberation at Conference without oral argument and ordinarily without additional written submissions. During those deliberations, the Court focused on the fact that multiple Justices were disqualified from participating due to conflicts connected to the Hlophe complaint and related processes. The judgment records, in particular, disqualification concerns relating to: a Justice who was a fellow complainant in the Hlophe complaint; Justices who participated in attempted mediation between the complainants and Judge President Hlophe; the Chief Justice’s position as chairperson of the JSC; and a Justice who had acted as the applicants’ counsel in proceedings related to the complaint prior to appointment to the Court. The Court further noted the possibility that members of the Court could be compromised because of collegial personal relationships.

The effect of the disqualifications was that, if disqualified members did not participate, the Court would lack the minimum quorum of eight Justices required for a Constitutional Court decision. Consistently with the approach in Hlophe v Freedom Under Law, the Court dismissed the leave-to-appeal application on the basis that the matter could not be heard by a properly constituted quorum and could not be left pending indefinitely.

The applicants then launched the present rescission application, purportedly in terms of Rule 42(1)(a) of the Uniform Rules of Court, as applied to the Constitutional Court through Rule 29 of the Constitutional Court Rules.

Legal Issues

The central legal questions were whether the applicants had established grounds for rescission under Rule 42(1)(a), namely whether the 16 May 2016 order was granted in their absence and was erroneously granted.

Within that overall enquiry, the Court had to determine whether Rule 42(1)(a) was applicable to an order made when the Constitutional Court decides leave-to-appeal applications at Conference, where litigants have no right to be present.

A further issue concerned the applicants’ contention that the 16 May 2016 dismissal was erroneous because it was based on a ground not raised by the parties and because the Court did not invite further written submissions. This raised questions about the application of procedural rules and established Constitutional Court practice (including Rule 19(6)), and the applicants’ reliance on section 34 of the Constitution (right of access to courts and a fair public hearing).

The applicants also alleged an irregularity arising from their assertion that Justices said to be disqualified nevertheless participated in the decision to dismiss the leave-to-appeal application. This required the Court to assess, as a matter of application of law to fact and institutional practice, whether participation was impermissible in the limited context of dismissing an application because the Court was incapacitated by lack of a quorum.

Court’s Reasoning

The Court began by explaining the Constitutional Court’s established procedure for deciding applications for leave to appeal. As a general practice, most leave applications are decided at Conference and are summarily dismissed without oral argument and without any right on the part of litigants to be present. This procedure is authorised by section 173 of the Constitution (inherent power to regulate process) and by Rule 19 of the Constitutional Court Rules, particularly Rule 19(6)(b), which expressly permits summary disposal “without receiving oral or written argument other than that contained in the application itself”. The Court reaffirmed that this procedure had previously been held constitutionally compliant, with reference to authorities including MEC, Development Planning and Local Government, Gauteng v Democratic Party and Others [1998] ZACC 9; 1998 (4) SA 1157 (CC); 1998 (7) BCLR 855 (CC), S v Pennington and Another [1997] ZACC 10; 1997 (4) SA 1076 (CC); 1997 (10) BCLR 1413 (CC), and Mphahlele v First National Bank of South Africa Ltd [1999] ZACC 1; 1999 (2) SA 667 (CC); 1999 (3) BCLR 253 (CC).

Against that background, the Court held that Rule 42(1)(a) had no application to the 16 May 2016 order. Rule 42(1)(a) presupposes that an order was granted in circumstances where the affected party was entitled to be present when the matter was heard but was absent. By contrast, when the Constitutional Court considers leave-to-appeal applications at Conference, litigants have no entitlement to be present. The Court reasoned that Rule 42(1)(a) is aimed at ensuring that, after rescission, the matter can be reheard with the party present; but even if rescission were granted here, the applicants would still have no right to attend the subsequent Conference deliberations. This, in the Court’s assessment, was sufficient on its own to justify dismissal of the rescission application.

The Court further rejected the contention that the 16 May 2016 order had been erroneously granted. The applicants’ complaint was that the Court dismissed the leave-to-appeal application based on quorum-related incapacity without inviting argument on that point, thereby allegedly infringing section 34. The Court responded by emphasising that Rule 19(6) expressly authorises summary disposal without additional argument beyond what appears in the application, and that the applicants—given their position and experience—were well aware of this established procedure.

The Court held that the applicants knew, when preparing their leave-to-appeal application, both the composition of the Court before whom the matter would serve and the existence and nature of the conflicts likely to arise. They also knew that the earlier Hlophe v Freedom Under Law decision addressed disqualification-based incapacity and the lack of quorum, and they should therefore have anticipated that it would be relevant. Importantly, the Court considered that Rule 19(3)(c) entitled the applicants to include in their affidavits any supplementary information or argument they wished to bring to the Court’s attention. If the applicants wished to contend that Hlophe should not be followed, or that it was distinguishable, they could and should have addressed that directly in their affidavits instead of waiting for the Court to invite submissions by issuing directions. The Court therefore found no substance in the assertion that the applicants were denied an opportunity to be heard.

The Court also rejected the applicants’ suggestion that the failure to invite further submissions was due to an “innocent oversight” by colleagues. It stated that the Justices who made the 16 May 2016 order had deliberated properly on the relevant issues, including whether it was necessary to issue directions, and had unanimously decided that it was not necessary.

On the allegation that disqualified members impermissibly participated in the decision, the Court held that this contention was without merit and that what occurred was consistent with what the Court did in Hlophe v Freedom Under Law. The Court also noted a practical consequence: even with the later appointment of two Acting Judges, excluding disqualified colleagues would still leave the Court without the required quorum to determine either the rescission application or the underlying leave-to-appeal matter.

Finally, the Court observed that, although the applicants’ leave-to-appeal application to the Constitutional Court could not be determined on the merits due to incapacity, the applicants’ complaint and constitutional challenge had been considered by multiple judicial decision-makers across the litigation history, including a tribunal, a Full Bench, and the Supreme Court of Appeal. The Court concluded by emphasising that it was in the interests of justice for the long-running complaint, originating from events in 2008, to be finalised without further delay.

Outcome and Relief

The Constitutional Court dismissed the application for rescission of the order made on 16 May 2016.

The judgment records no separate or additional order as to costs in the rescission proceedings beyond the dismissal of the application.

Cases Cited

Judge President Hlophe v Freedom Under Law [2012] ZACC 4; 2012 (6) SA 13 (CC); 2012 (6) BCLR 567 (CC)

Nkabinde and Another v Judicial Service Commission [2016] ZASCA 12; 2016 (4) SA 1 (SCA)

Freedom Under Law v Acting Chairperson, Judicial Service Commission and others [2011] ZASCA 59; 2011 (3) SA 549 (SCA)

Premier, Western Cape v Acting Chairperson, Judicial Service Commission 2010 (5) SA 634 (WCC)

Paulsen and Another v Slip Knot Investments 777 (Pty) Limited [2015] ZACC 5; 2015 (3) SA 479 (CC)

MEC, Development Planning and Local Government, Gauteng v Democratic Party and Others [1998] ZACC 9; 1998 (4) SA 1157 (CC); 1998 (7) BCLR 855 (CC)

S v Pennington and Another [1997] ZACC 10; 1997 (4) SA 1076 (CC); 1997 (10) BCLR 1413 (CC)

Mphahlele v First National Bank of South Africa Ltd [1999] ZACC 1; 1999 (2) SA 667 (CC); 1999 (3) BCLR 253 (CC)

Legislation Cited

Constitution of the Republic of South Africa, 1996 (section 34; section 173)

Judicial Service Commission Act, 1994, as amended by the Judicial Service Commission Amendment Act, 2008

Rules of Court Cited

Uniform Rules of Court (Rule 42(1)(a))

Rules of the Constitutional Court of South Africa (Rule 19; Rule 29)

Held

The Court held that Rule 42(1)(a) could not be invoked to rescind an order made when the Constitutional Court summarily dismisses an application for leave to appeal at Conference, because litigants have no right to be present at Conference and the “absence” contemplated by Rule 42(1)(a) is therefore not established.

The Court further held that the 16 May 2016 dismissal order was not erroneously granted, because the Court was entitled under Rule 19(6) and section 173 of the Constitution to determine leave-to-appeal applications summarily on the papers, and the applicants had adequate opportunity to address the quorum and disqualification issues (including the relevance of Hlophe v Freedom Under Law) within their founding papers under Rule 19(3).

The Court also held that the applicants’ allegations of irregularity arising from participation by disqualified Justices were unfounded, and that the Court’s approach was consistent with the principle applied in Hlophe v Freedom Under Law, particularly in circumstances where disqualifications meant there was no quorum and the matter could not be left pending indefinitely.

LEGAL PRINCIPLES

A rescission mechanism premised on an order granted “in the absence” of an affected party under Uniform Rule 42(1)(a) depends on an assumption that the party was entitled to be present when the decision was taken. That premise is incompatible with the Constitutional Court’s established and constitutionally accepted practice of determining most leave-to-appeal applications at Conference, where parties have no right to attend.

The Constitutional Court may, under section 173 of the Constitution and Rule 19(6) of its Rules, decide applications for leave to appeal summarily, without oral argument and without additional written submissions beyond those contained in the application papers. The Rules contemplate that applicants place their submissions within their affidavits, including supplementary argument under Rule 19(3)(c).

Where disqualifying conflicts among members of the Constitutional Court result in the Court lacking the constitutionally required quorum, the Court may dismiss proceedings on the basis of institutional incapacity, applying the principle articulated in Judge President Hlophe v Freedom Under Law [2012] ZACC 4; 2012 (6) SA 13 (CC); 2012 (6) BCLR 567 (CC), including the proposition that such a matter cannot be left pending indefinitely for want of a quorum.

Nkabinde and Another v Judicial Service Commission and Others (CCT122/16) [2016] ZACC 25; 2016 (11) BCLR 1429 (CC); 2017 (3) SA 119 (CC) (24 August 2016)