Nkabinde and Another v Judicial Service Commission and Others

The first and second applicants, both Justices of the Constitutional Court, together with other past Justices, lodged a complaint with the Judicial Service Commission (JSC) in 2008 against Judge President John Hlophe of the Western Cape Division. In October 2013, the applicants brought a review application in the South Gauteng Local Division seeking to set aside the JSC's decision to refer the complaint to the Chief Justice for consideration, and declaring section 24(1) of the JSC Act unconstitutional. The Full Bench dismissed the application with costs. The Supreme Court of Appeal dismissed the appeal on the merits but set aside the costs order. The applicants then applied to the Constitutional Court for leave to appeal. On 16 May 2016, the Constitutional Court dismissed the application for leave to appeal at Conference, applying the principle from Hlophe v Freedom Under Law, on the basis that numerous Justices were disqualified from sitting (including Moseneke DCJ as a co-complainant, Mogoeng CJ and Zondo J as mediators, and Madlanga J as former counsel for the applicants), resulting in no quorum. The applicants then brought an application for rescission of that order.

• Whether Rule 42(1)(a) of the Uniform Rules applies to rescission of an order made at Conference dismissing an application for leave to appeal
• Whether the Constitutional Court was required to issue directions and invite written submissions before dismissing the application for leave to appeal on the basis of lack of quorum
• Whether the applicants' right to be heard and right of access to court under section 34 of the Constitution were infringed by the Court's procedure
• Whether disqualified Justices could participate in the decision to dismiss an application on the basis that there was no quorum to hear the matter
• Whether the principle established in Hlophe v Freedom Under Law applied to the applicants' application for leave to appeal

The application for rescission was dismissed.

The binding legal principles established are: (1) Rule 42(1)(a) of the Uniform Rules, which provides for rescission of orders granted in the absence of a party, does not apply to orders made by the Constitutional Court at Conference when determining applications for leave to appeal, because litigants have no right to be present at Conference; (2) The Constitutional Court's practice of summarily dismissing applications for leave to appeal at Conference without oral argument or additional written submissions beyond those contained in the application itself, as authorized by section 173 of the Constitution and Rule 19(6)(b) of the Court's Rules, is constitutional and does not violate the right of access to courts under section 34 of the Constitution; (3) Rule 19(3)(c) places the onus on applicants for leave to appeal to include in their founding affidavits any argument or submissions they wish to bring to the Court's attention, including on procedural issues such as lack of quorum; (4) The principle in Hlophe v Freedom Under Law applies where multiple Justices of the Constitutional Court are disqualified from hearing a matter, resulting in lack of quorum - such matters must be dismissed as they cannot be left pending indefinitely before the Court; (5) Justices who are disqualified from adjudicating the merits of a matter may nevertheless participate in the procedural decision that the Court lacks quorum to hear the matter.

The Court made several non-binding observations. It noted that the applicants' complaint had already been heard by no fewer than ten Judges across different forums (two Judges in the Tribunal plus another member, three Judges in the Full Bench, and five Judges in the Supreme Court of Appeal), and their constitutional challenge to section 24 of the JSC Act had been heard by eight Judges. The Court emphasized, as a matter of the interests of justice, that the complaint against Judge President Hlophe, which arose from events in 2008, should be dealt with and concluded without any further delay, stating that eight years later the matter had still not been finalized. The Court also noted that even with the addition of two Acting Judges, there would still be insufficient quorum to deal with the rescission application or appeal if disqualified Colleagues were excluded. The Court stated that in Hlophe, detailed directions were issued because the Court was dealing with this type of disablement for the first time, implying that such detailed process was not necessary in subsequent similar cases where the principle had been established.

This case is significant in South African law as it clarifies the limits of rescission applications under Rule 42(1)(a) in the Constitutional Court context, particularly in relation to orders made at Conference. It confirms that the Constitutional Court's established practice of deciding applications for leave to appeal summarily at Conference, without oral argument or the presence of litigants, is constitutionally sound and does not infringe the right of access to courts under section 34. The judgment reinforces the principle from Hlophe v Freedom Under Law that where the Constitutional Court lacks a quorum due to disqualification of Justices, matters cannot be left pending indefinitely and must be dismissed. It also establishes that litigants bear responsibility for including all relevant arguments in their founding affidavits under Rule 19(3)(c), particularly when they are aware of potential issues such as lack of quorum. The case demonstrates the Court's approach to managing conflicts of interest and disqualifications among its own members, and establishes that disqualified Justices may participate in procedural decisions about whether the Court has quorum to hear a matter. The case is also notable for involving Justices of the Constitutional Court as applicants, highlighting the independence of the judicial process even when applied to members of the judiciary itself.