Minister for Justice and Constitutional Development v Mqabukeni Chonco and 383 Others

Following the Constitutional Court's judgment in Chonco 1 ([2009] ZACC 25; 2010 (2) BCLR 140 (CC)), a dispute arose concerning the interpretation of the costs order granted in that case. In Chonco 1, the Minister's appeal had succeeded and the relief obtained by the pardon applicants in the High Court and Supreme Court of Appeal was set aside. Despite this, the Court ordered the Minister to pay the pardon applicants' costs due to long delays in dealing with pardon applications and the understandable nature of the error in suing the Minister rather than the President. The Court stated the applicants should not be "out of pocket" for their legal proceedings. When the applicants served bills of costs for all three courts (High Court, Supreme Court of Appeal, and Constitutional Court), the State Attorney took the position that the costs order only applied to Constitutional Court costs. The applicants' attorney then wrote to the Registrar requesting clarification. By the time this dispute arose, the composition of the Court had changed, with four judges (Langa CJ, Mokgoro, O'Regan and Sachs JJ) having completed their 15-year terms and being replaced by four new judges (Froneman, Jafta, Khampepe and Mogoeng JJ).

• Whether the reconstituted Constitutional Court, with four new members, has the power to interpret and clarify an order granted by the Court in its previous composition
• Whether the costs order in Chonco 1 covered the pardon applicants' costs in the High Court and Supreme Court of Appeal, or only their costs in the Constitutional Court
• Whether the Court has power under Rule 29 read with Rule 42 of the High Court Rules to vary its previous order to remedy an ambiguity or omission

The order in Minister for Justice and Constitutional Development v Chonco and Others (CCT 42/09) [2009] ZACC 25 was varied and replaced. The new order: (1) granted the application for leave to appeal; (2) upheld the appeal; (3) set aside the Supreme Court of Appeal order and replaced it with an order that (a) upheld the appeal, (b) dismissed the application in the High Court, and (c) ordered the Minister to pay the respondents' costs incurred in the High Court as well as the costs of the appeal; and (4) ordered the Minister to pay the respondents' costs in the Constitutional Court. The practical effect was to make explicit that the Minister must pay all costs at all three levels of court.

The binding legal principles established by this judgment are: (1) The Constitutional Court, as constituted from time to time sitting en banc with a minimum of eight judges, has the power and duty to interpret and clarify orders made by earlier compositions of the Court, as the Constitution ascribes jurisdiction and powers to the Court as an institution, not to particular individual judges. (2) A court's order must be read together with its reasons to ascertain its true meaning and effect. (3) Where an order contains an ambiguity or omission, the Court has power under Rule 29 (applying Rule 42 of the High Court Rules) to vary the order to remedy the ambiguity or omission. (4) The term "the Court" in procedural rules applicable to the Constitutional Court refers to the quorate Court as constituted from time to time, not to any particular composition of judges. (5) An omission in an order that gives rise to ambiguity may be characterized as both an omission and an ambiguity for purposes of Rule 42(1)(b), which covers both situations.

The Court made several non-binding observations. It noted that there is often overlap between an omission and an ambiguity, as it may be the omission that gives rise to the ambiguity. The Court observed that because Rule 42 applies to Constitutional Court proceedings, it was unnecessary to consider: (1) the question that arises in the Supreme Court of Appeal (where Rule 42 does not apply) regarding the circumstances in which a court of final appeal may at common law vary its orders; (2) whether the Court's inherent power under section 173 of the Constitution to protect and regulate its own process and develop the common law confers additional power to correct orders; and (3) whether section 172 of the Constitution confers additional powers on the Court to correct its own orders (a question the Court had previously left open in Minister of Justice v Ntuli and Ex parte Women's Legal Centre). The Court also noted, as background context, the special constitutional provisions for appointment and terms of office of Constitutional Court judges, including the provision in the Judges' Remuneration and Conditions of Employment Act extending certain judges' service to 15 years.

This judgment is significant for establishing several important principles in South African constitutional and procedural law. First, it confirms that the Constitutional Court, as an institution, continues to exercise its powers despite changes in individual membership, and a reconstituted Court has both the power and duty to interpret orders made by earlier compositions. Second, it demonstrates the application of Rule 42 to Constitutional Court proceedings through Rule 29, establishing the Court's power to vary its own orders to remedy ambiguities or omissions. Third, it illustrates the principle that court orders must be read together with the reasons for judgment to properly understand their meaning and effect. Fourth, it clarifies the Court's approach to costs orders, particularly in cases involving constitutional litigation and errors that are "understandable." The case also has broader implications for understanding the institutional continuity of courts despite changes in judicial personnel, and the proper interpretation of court orders in light of the reasoning supporting them.