A Suit May Be Dismissed For Lack of Quorum Without Parties Being Heard
January 25, 2017
A Suit May Be Dismissed For Lack of Quorum Without Parties Being Heard
In the matter between Baaitse Elizabeth Nkabinde & another and Judicial Service Commission & 3 others
Constitutional Court of South Africa
Mogoeng CJ, Cameron J, Froneman J, Khampepe J, Madlanga J, Mbha AJ, Mhlantla J, Musi AJ and Zondo J
August 24, 2016
Reported by Linda Awuor & Kakai Toili
Civil practice and procedure – appeals – requirements for appeals – leave to appeal – leave of court to file an appeal – what was the process for application for leave to appeal a decision of the Supreme Court of Appeal – Constitution of the Republic of South Africa, section 173; Rules of the Constitutional Court of South Africa, rule 19
Civil practice and procedure – suits – hearing of suits in the Supreme Court of Appeal – factors considered before a matter was heard in the Supreme Court of Appeal – quorum- what constitutes a quorum of the Supreme Court of Appeal – Constitution of the Republic of South Africa, section 173; Rules of the Constitutional Court of South Africa, rule 29; Uniform Rules of the High Court (South Africa)
Civil practice and procedure – dismissal of suits –factors leading to dismissal of suits – quorum – lack of quorum to hear a suit – factors to be considered in dismissing a suit for lack of quorum – right of parties to a suit to be heard before a suit was dismissed for lack of quorum – whether the Applicants had a right to be heard before their matter was dismissed for lack of quorum – Constitution of the Republic of South Africa, section 173; Rules of the Constitutional Court of South Africa, rule 29; Uniform Rules of the High Court (South Africa), section 42 (1) (a)
Civil practice and procedure – orders – variation and rescission of orders – factors to be considered in rescinding court orders – presence of Applicants – whether an order for rescission had to be granted in presence of the Applicants – Uniform Rules of the High Court (South Africa), section 42 (1) (a)
After the coming into operation of the South African Judicial Service Commission Amendment Act, 2008, the Judicial Service Commission (JSC) referred to the Chief Justice, as chairperson of the Judicial Conduct Committee, a complaint that the Applicants and other Justices of the Constitutional Court lodged with the JSC in 2008 against Judge President Hlophe for consideration. The complaint was that Judge President Hlophe had tried to unduly influence the Applicants in regard to the outcome of certain cases relating to President Zuma in which the Constitutional Court (the Court) was to hand down judgments. The Chief Justice established a Judicial Conduct Tribunal (Tribunal) to conduct an inquiry into the complaint. The Applicants were required to testify in the Tribunal to substantiate the complaint.
In 2013 the Applicants instituted a review application in the Johannesburg High Court to have that Court set aside the JSC’s decision to refer the complaint to the Chief Justice and to have section 24 of the JSC Act declared unconstitutional. A full bench heard the application and dismissed it with costs. The Applicants’ application for leave to appeal was dismissed. The Applicants then applied to the Supreme Court of Appeal for leave to appeal. Their appeal was dismissed on the merits but set aside the costs order against them.
The Applicants lodged an application with the Court for leave to appeal against the decision of the Supreme Court of Appeal. On May 16, 2016 the Court made an order dismissing the application on the basis that there was no quorum as a result of the justices who had been disqualified from sitting in the matter.
(i) What was the process for application for leave to appeal a decision of the Supreme Court of Appeal?
(ii) What constitutes quorum in the South African Supreme Court of Appeal?
(iii) Whether the Applicants had a right to be heard before their matter was dismissed for lack of quorum.
(iv) Whether it was mandatory for an order for rescission to be granted in the presence of the Applicants.
Relevant Provisions of Law:
Constitution of the Republic of South Africa
Section 173 – Inherent power
The Constitutional Court, the Supreme Court of Appeal and the High Court of South Africa each has the inherent power to protect and regulate their own process, and to develop the common law, taking into account the interests of justice.
Judicial Service Commission Act (South Africa)
Section 24 – Being Just in Investigating Cases
Investigation of the cases shall be carried out on the basis of justice by the Commission or the Investigation Committee
Rules of the Constitutional Court of South Africa
Rule 19 – Appeals
1. The procedure set out in this rule shall be followed in an application for leave to appeal to the Court where a decision on a constitutional matter, other than an order of constitutional invalidity under section 172 (2) (a) of the Constitution, has been given by any court including the Supreme Court of Appeal, and irrespective of whether the President has refused leave or special leave to appeal.
2. A litigant who is aggrieved by the decision of a court and who wishes to appeal against it directly to the Court on a constitutional matter shall, within 15 days of the order against which the appeal is sought to be brought and after giving notice to the other party or parties concerned, lodge with the Registrar an application for leave to appeal: Provided that where the President has refused leave to appeal the period prescribed in this rule shall run from the date of the order refusing leave.
3. An application referred to in sub-rule (2) shall be signed by the applicant or his or her legal representative and shall contain-
(a) the decision against which the appeal is brought and the grounds upon which such decision is disputed;
(b) a statement setting out clearly and succinctly the constitutional matter raised in the decision; and any other issues including issues that are alleged to be connected with a decision on the constitutional matter;
(c) such supplementary information or argument as the applicant considers necessary to bring to the attention of the Court; and
(d) a statement indicating whether the applicant has applied or intends to apply for leave or special leave to appeal to any other court, and if so-
i) which court;
ii) whether such application is conditional upon the application to the Court being refused; and
iii) the outcome of such application, if known at the time of the application to the Court.
4. a) Within 10 days from the date upon which an application referred to in subrule (2) is lodged, the respondent or respondents may respond thereto in writing, indicating whether or not the application for leave to appeal is being opposed, and if so the grounds for such opposition.
b. The response shall be signed by the respondent or respondents or his or her or their legal representative.
5. a) A respondent or respondents wishing to lodge a cross-appeal to the Court on a constitutional matter shall, within 10 days from the date upon which an application in subrule (2) is lodged, lodge with the Registrar an application for leave to cross-appeal.
b.) The provisions of these rules with regard to appeals shall apply, with necessary modifications, to cross-appeals.
6. a) The Court shall decide whether or not to grant the appellant leave to appeal.
b) Applications for leave to appeal may be dealt with summarily, without receiving oral or written argument other than that contained in the application itself.
c). The Court may order that the application for leave to appeal be set down for argument and direct that the written argument of the parties deal not only with the question whether the application for leave to appeal should be granted, but also with the merits of the dispute.
The provisions of rule 20 shall, with necessary modifications, apply to the procedure to be followed in such procedures.
Section 29 – Application of certain rules of the Uniform Rules
The following rules of the Uniform Rules shall, with such modifications as may be necessary, apply to the proceedings in the Court:
6 (7) to 6 (15) Joinder of parties on application and related matters
28 Amendments to pleadings and documents
35 (13) Discovery, inspection and production of documents
38 (3) to 38 (8) Procuring evidence for trial
42 Variation and rescission of orders
59 Sworn translators
61 Interpretation of evidence
62 Filing, preparation and inspection of documents
63 Authentication of documents executed outside theRepublic for use within the Republic
64 Destruction of documents
65 Commissioners of the Court
Uniform Rules of the High Court (South Africa)
Section 42 (1) (a) – Variation and Rescission of Orders
(1) The court may, in addition to any other powers it may have, mero motu or upon the application of any party affected, rescind or vary:
(a) An order or judgment erroneously sought or erroneously granted in the absence of any party affected thereby;
- The practice in dealing with applications for leave to appeal was that, as a norm, they were deliberated upon at conference or a meeting of the justices. An overwhelming majority of them were dismissed summarily at conference without any written or oral argument. A few of them were set down for hearing. Those that were set down were those that appeared to have reasonable prospects of success and raised important constitutional issues or arguable points of law of general public importance that deserved consideration. They were then heard in open court where the litigants had a right to attend.
- The applications that were not set down were dealt with and finalized at conference and were summarily dismissed without judgment. Occasionally, a short judgment was written without oral or additional written submissions but sometimes with additional written argument. Litigants had no right to attend conference or to be represented when applications for leave to appeal were considered. The procedure was consistent with both section 173 of the South African Constitution on inherent power of courts and Rule 19 of the Rules of the South African Constitutional Court on appeals
- The fact that justices were disqualified from sitting in the application for leave to appeal meant that ordinarily there would have been no quorum. In terms of the South African Constitution a matter to have been decided had to be decided by at least eight Justices.
- The Applicants brought their application for rescission in terms of Rule 42(1) (a) of the South African Uniform Rules of the High Court on variation and rescission of orders read with Rule 29 of the South African Constitutional Court Rules, on the application of certain rules of the Uniform Rules. An Applicant for rescission who brought an application under the Rule had to show that the order sought to be rescinded was granted in his or her absence and that it was erroneously granted or sought.
- Rule 42(1)(a) of the South African Uniform Rules of the High Court on variation and rescission of orders had no application when considering and deciding applications for leave to appeal at conference. The litigants involved had no right to be present at conference. The requirement in Rule 42(1)(a) that the order sought to be rescinded had to have been granted in the absence of the rescission Applicant was based on the assumption that the litigant was entitled to have been present in Court when his or her matter was heard or adjudicated but that happened in her absence.
- Rule 42(1)(a) of the South African Uniform Rules of the High Court on variation and rescission of orders sought to ensure that a litigant would be present when the matter was heard again after the order granted in his or her absence had been rescinded. In terms of practice when applications for leave to appeal were decided, no litigant had the right to be present at conference.
- In the cases in which Rule 42(1)(a) of the South African Uniform Rules of the High Court on variation and rescission of orders applied, a party who successfully applied for the rescission of an order that was granted in his or her absence had a right to be present in Court when , after the rescission his or her matter had to be heard. If the order of May 16, 2016 was to be rescinded, the Applicants would still have had no right to have been present at conference when their matter was considered again. The ground alone was sufficient to dismiss the application.
- Rule 19(6) of Rules of the South African Constitutional Court on appeals made it clear that, applications for leave to appeal might have been dealt with summarily and without oral argument or additional written submissions. The Applicants could not have expected their application to have been treated differently.
- When the Applicants prepared their application, they knew:
(a)Who their Colleagues were and before whom their application would come.
(b)That some of their colleagues were disqualified from taking part in the adjudication of the merits of their application or the appeal that would have to be heard if leave was granted.
(c)The identity of their colleagues who were disqualified from sitting in the matter because some of those colleagues disclosed their reasons for disqualification in 2011 in Judge President Hlophe v Freedom Under Law  ZACC 4 (Hlophe)(d) That one of the colleagues at the time was one of the complainants together with the Applicants in the complaint against Judge President Hlophe.
(e)That one of the colleagues had been the Applicants counsel in proceedings relating to the complaint against Judge President Hlophe before he joined the Court.
(f) That when one had regard to the number of the justices who were disqualified from taking part in the adjudication of the matter, the Court would have lacked the required quorum of eight Judges.
(g)That Rule 19(3) (c) of the South African Rules of the Constitutional Court on appeals contemplated that the Applicants include their argument in their affidavits on any issue that they wanted to bring to the Court’s attention just as they had done in their affidavit in the rescission application.
- It was up to the Applicants, if they wished to have been heard on how the matter would have been dealt with, to have included in their founding affidavits their argument or submissions on that and other issues. They could have also included in their affidavits submissions on that decision because they had to have known that the decision was likely to exercise the minds of the members of the Court. They should not have waited in the hope that directions would be issued.
- The Applicants’ contention that they were denied an opportunity to be heard had no merit. Furthermore, the suggestion that the members who made the order of May 16, 2016 did so because of innocent oversight had no proper basis. The members who made that order did so after a proper deliberation of the issues including whether it was necessary to have issued directions and invited the parties to deliver written submissions. The order of May 16, 2016 was not an oversight nor was the fact that directions were not issued.
- Even after being joined by two acting judges, there would still have been no quorum to have dealt with the Applicants’ rescission application or appeal if those colleagues who were disqualified were to be excluded. The contention that the disqualified members should not have sat even for purposes of making the decision that the application should have been dismissed because there was no quorum was also without merit.
- Although it was true that the order made on May 16, 2016 and the judgment meant that the Applicants had not had their application for leave to appeal against the decision of the Supreme Court of Appeal decided on the merits, their complaint against the decision of the JSC had been heard by no fewer than ten Judges. It was heard by two Judges who were members of the Tribunal plus another member who was not a Judge. It was then heard by three Judges who constituted the full bench. Thereafter, it was heard by five Judges of the Supreme Court of Appeal. All those judges considered their complaint and dismissed it. Their complaint about the alleged unconstitutionality of section 24 of the South African Judicial Service Commission Act on being just in investigating cases had been heard by eight Judges.
- Not taking the opportunity to emphasise that it was in the interests of justice that the matter of the complaint against Judge President Hlophe should have been dealt with and concluded without any further delay would be failing in duty. The events that gave rise to the complaint occurred in 2008. Eight years later, the matter had not been finalised. It was in the interests of justice that the matter be brought to finality.
Relevance to Kenyan Position:
The Constitution of Kenya, 2010 under article 163 (2) provides that the Supreme Court shall be properly constituted for the purposes of its proceedings if it is composed of five judges.
The general practice in Kenyan courts is that when a court establishes that it does not have quorum it does not proceed until the Court is properly constituted. Mohammed Ibrahim SCJ in Justice Kalpana H. Rawal v Judicial Service Commission & 5 others Civil Application No. 11 of 2016, held that for a quorate court, the question of whether a court had the requisite number of judges who were legally required to constitute a bench was a jurisdictional question and was of the view that it had to be heard first before any other preliminary objection and that as a matter of good order it had to be settled first before the Court could proceed. The judge further held that since there was no constitutional quorum of judges of the Court to sit and hear any matter in the proceedings at the point in time the result was that the Interim Orders granted on May 27, 2016 could no longer stand until there was a bench with the required quorum.
Smokin Wanjala SCJ in Justice Kalpana H. Rawal v Judicial Service Commission & 5 others Civil Application No. 11 of 2016 held that the effect of his recusal would no doubt have affected the capacity of the Court to raise a quorum and that the effect of the inability of the Court to entertain the intended appeal was that the decision of the Court of Appeal, to the effect that all Judges had to retire upon attaining the age of 70 stood, until when it would be affirmed or reversed by a properly constituted Bench of the Supreme Court. He further held that the ex parte orders issued on the May 27, 2016 had to lapse with his recusal because the bench on whose behalf the orders were issued was no longer in existence and that the said orders could not exist in futility.
In Kenya, with regard to appeals before the Supreme Court, article 163 (4) provides that appeals shall lie from the Court of Appeal to the Supreme Court as of right in any case involving the interpretation or application of the Constitution and in any other case in which the Supreme Court or the Court of Appeal, certifies that a matter of general public importance is involved subject to the power of the Supreme Court to review a certificate by the Court of Appeal and to either affirm, vary or overturn it.
The Supreme Court Act, No 7 of 2011 under section 15 provides that appeals to the Supreme Court shall be heard only with the leave of the Court, however that shall not apply to appeals from the Court of Appeal in respect of matters relating to the interpretation or application of the Constitution. It further provides that references in any written law, other than the Act, to the leave of the Supreme Court shall be construed subject to the provisions of sections 17 and 18 of the Act.
Section 16 (1) and (3) provides gives situations where leave to appeal will not be granted, section 16 (1) states that the Supreme Court shall not grant leave to appeal to the Court unless it is satisfied that it is in the interests of justice for the Court to hear and determine the proposed appeal. Sub-section 3 states that the Supreme Court shall not grant leave to appeal against an order made by the Court of Appeal or any other court or tribunal on an interlocutory application unless satisfied that it is necessary, in the interests of justice, for the Supreme Court to hear and determine the proposed appeal before the proceedings concerned is concluded.
Section 16(2) provides that it shall be in the interests of justice for the Supreme Court to hear and determine a proposed appeal if the appeal involves a matter of general public importance or a substantial miscarriage of justice may have occurred or may occur unless the appeal is heard. Sub-section 4 goes further to state that the Supreme Court may grant leave to appeal subject to such conditions as it may determine.
Section 17 of the Act provides that the Supreme Court shall not grant leave to appeal directly to it against a decision made, a conviction entered, or a sentence imposed in proceedings in any court or tribunal, other than the Court of Appeal, unless in addition to being satisfied that it is necessary, in the interests of justice, for the Supreme Court to hear and determine the proposed appeal, it is also satisfied that there are exceptional circumstances that justify taking the proposed appeal directly to the Supreme Court.
Section 18 of the Act states that the Supreme Court shall state its reasons for refusing to grant leave to appeal to the Court and the reasons may be stated briefly and in general terms
This case will go a long way in assisting Kenyan Courts to handle similar issues as the one that faced the South African Constitutional Court more effectively.