The applicant, Mr Frederick Coenrad Daniel, had previously brought an application (CCT 106/12) seeking an order declaring that the President's failure to appoint an independent Commission of Inquiry was inconsistent with the Constitution, and directing the President to establish such a Commission within ten days. The President filed a detailed response opposing the relief sought, arguing that direct access was inappropriate. On 31 January 2013, the Constitutional Court dismissed the application on the basis that it was not in the interests of justice to grant direct access. The applicant then brought this rescission application seeking to set aside the dismissal order on the ground that it was erroneously granted, arguing that the Court erred in characterizing the first application as one for direct access when it actually concerned an issue falling exclusively within the Constitutional Court's jurisdiction under section 167(4)(e) of the Constitution.
The application for rescission was dismissed.
The binding legal principles established are: (1) The word 'obligation' in section 167(4)(e) of the Constitution means a duty specifically imposed on the President to perform specified conduct, and must be given a narrow meaning to avoid conflict with section 172(1)(a); (2) Section 84(2)(f) of the Constitution confers a discretionary power on the President to appoint Commissions of Inquiry, not a constitutional obligation; (3) The President's failure to appoint a Commission of Inquiry does not constitute a failure to fulfil a constitutional obligation within the meaning of section 167(4)(e); (4) Matters concerning the President's refusal to appoint a Commission of Inquiry do not fall within the exclusive jurisdiction of the Constitutional Court and may be brought before other competent courts; (5) For rescission under Rule 42, an applicant must demonstrate that but for the alleged error, the court could not have granted the impugned order - the error must be something the court was not aware of at the time which would have precluded granting the order.
The Court's approach to the rescission application demonstrates that once a court has duly pronounced a final order, it becomes functus officio and has no power to alter the order, except in the defined circumstances set out in Rule 42 of the Uniform Rules. The judgment reinforces the general principle that litigants cannot use rescission applications to re-argue matters already considered by the court or to challenge the correctness of a court's reasoning where the court had properly considered the issues before it. The judgment also implicitly suggests that the interests of justice test for direct access remains an important gatekeeping mechanism for the Constitutional Court, even in matters where litigants may characterize their claims as falling within the Court's jurisdiction.
This case is significant in South African constitutional jurisprudence for clarifying the narrow scope of section 167(4)(e) of the Constitution regarding when Parliament or the President has failed to fulfil a constitutional obligation. It establishes that discretionary powers granted to the President (such as the power to appoint Commissions of Inquiry under section 84(2)(f)) do not constitute constitutional obligations, the failure of which would trigger the Constitutional Court's exclusive jurisdiction. The judgment reinforces the principle that the Constitutional Court's exclusive jurisdiction must be narrowly construed to avoid conflict with section 172(1)(a), which empowers the Supreme Court of Appeal and High Courts to make orders concerning the constitutional validity of presidential conduct. It also confirms that High Courts have jurisdiction to review both the President's decisions to appoint Commissions of Inquiry and refusals to do so.
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