Judges Jafta and Nkabinde call for a rescission in Hlophe decision

Judges Jafta and Nkabinde are determined to make legal history, but not necessarily for the right reasons. They have asked for an order of the Constitutional Court to be rescinded. “In an affidavit filed on Tuesday, Jafta said they wanted the order rescinded because the court had not given them the opportunity to make submissions on the issue of recusal” says Business Day.

Fran Rabkin from Business Day describes this as highly unusual at the highest court and unheard of from the court’s own judges. Rescinding a judgement is different from reviewing a judgement and appealing a judgement. If you don’t like a Constitutional Court judgement you can’t appeal it, or in other words, challenge the judgement on the facts being wrong. The Constitutional Court is the highest court, and is the final arbiter on how the law must be interpreted. You can’t review a decision either, where you say the wrong process was used to reach a decision – again, the court is the highest court, and only it can decide if it was wrong.

But what you can do is you can ask a court to rescind a judgement, where they followed a process that was wholly flawed. This process is mostly done where a creditor has got a judgement against someone without them appearing in court.

You as the person who has the judgement against you can then pay the debt, and ask the court to rescind the judgment, which will clear your name as someone who didn’t pay. Alternatively, the judgement might have been given because the defendant didn’t defend the matter, but that happened because they never got the notice that the case was going to court. So they could ask for that decision to be rescinded.

These judges, Jafta J and Nkabinde J, have brought this application because they disagree with a decision from the Constitutional Court. The court said in that decision that they had too many conflicts within the 11 members of the court to make up a quorum, which is eight members. That meant that they couldn’t hear a matter where Nkabinde and Jafta were appealing a decision of the Supreme Court of Appeal.

These judges filing a rescission application is a last resort measure, what they call in American football a ‘Hail Mary’. There is no argument that they did not know about this decision, but rather that they want to court to reconsider their decision.

If the court allows this, it would open the door to all those who lose in the highest court to apply for a rescission of judgement. This seems highly unlikely, and just another step which delays the judicial accountability process from proceeding.