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)

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)

The application for rescission is dismissed because Rule 42(1)(a) does not apply to orders made at Conference where litigants have no right to be present. The applicants were aware of the procedure and the principle established in Hlophe, which dictates that where the Court lacks a quorum due to disqualification of its members, the application must be dismissed and cannot be left pending. The applicants' right of access to court was not infringed, as the procedure followed is consistent with the Constitution and the Rules of the Court. The suggestion that disqualified Justices participated irregularly is unfounded, as the Court acted in accordance with established precedent. The...

Citation
[2016] ZACC 25
Parties
Applicant: Baaitse Elizabeth Nkabinde; Applicant: Christopher Nyaole Jafta; Respondent: Judicial Service Commission; Respondent: President of the Judicial Conduct Tribunal; Respondent: Minister of Justice and Constitutional Development; Respondent: Xolisile Khanyile NO
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
24 August 2016
Case Number
CCT 122/16
Procedural Posture
Urgent Application / Application for Rescission of Order
Outcome
Application for rescission dismissed.
Judges
Mogoeng, Cameron, Froneman, Khampepe, Madlanga, Mbha, Mhlantla, Musi, Zondo
Legal Topics
Judicial Recusal, Access to Court, Rule 42 Rescission, Quorum Requirements, Judicial Service Commission Act
Constitutional Law Civil Procedure Judicial Recusal Access to Court Rule 42 Rescission Quorum Requirements Judicial Service Commission Act

Case Brief

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Parties

Baaitse Elizabeth Nkabinde

Applicant

Christopher Nyaole Jafta

Applicant

Judicial Service Commission

Respondent

President of the Judicial Conduct Tribunal

Respondent

Minister of Justice and Constitutional Development

Respondent

Xolisile Khanyile NO

Respondent

Procedural Posture

Urgent Application / Application for Rescission of Order

Legal Issues

  1. 1 Whether the Constitutional Court's order dismissing the application for leave to appeal was granted erroneously in the absence of the applicants.
  2. 2 Whether Rule 42(1)(a) of the Uniform Rules of Court applies to orders made at Conference without a public hearing.
  3. 3 Whether the applicants' right of access to court under section 34 of the Constitution was infringed by the procedure followed.

Ratio Decidendi

The application for rescission is dismissed because Rule 42(1)(a) does not apply to orders made at Conference where litigants have no right to be present. The applicants were aware of the procedure and the principle established in Hlophe, which dictates that where the Court lacks a quorum due to disqualification of its members, the application must be dismissed and cannot be left pending. The applicants' right of access to court was not infringed, as the procedure followed is consistent with the Constitution and the Rules of the Court. The suggestion that disqualified Justices participated irregularly is unfounded, as the Court acted in accordance with established precedent. The...

Court Disposition

Application for rescission dismissed.

Orders

  • The application for rescission of the order of Court is dismissed.