Nkabinde and Another v Judicial Service Commission and Others

The applicants, Justices Baatse Elizabeth Nkabinde and Christopher Nyaole Jafta of the Constitutional Court, applied for the rescission of an order made by the Constitutional Court on 16 May 2016. That earlier order summarily dismissed their application for leave to appeal against a Supreme Court of Appeal decision which had rejected their challenge to decisions of the Judicial Service Commission (JSC) relating to the handling of a complaint against Judge President John Hlophe. The dismissal was based not on the merits but on the principle that the Constitutional Court lacked a quorum because multiple Justices were disqualified due to conflicts of interest arising from their involvement in the Hlophe complaint. The applicants sought rescission under Rule 42(1)(a) of the Uniform Rules, arguing that the order was erroneously granted in their absence and that disqualified Justices improperly participated in the decision.

The application for rescission of the Constitutional Court’s order of 16 May 2016 was dismissed.

The case confirms and reinforces the Constitutional Court’s approach when it lacks a quorum due to widespread judicial disqualification, affirming the principle established in Hlophe v Freedom Under Law that such matters must be dismissed rather than left pending indefinitely. It also clarifies that Rule 42 rescission is generally inapplicable to summary decisions on applications for leave to appeal made at conference, and underscores the Court’s inherent power under section 173 of the Constitution to regulate its own processes.