Judges claim top court breached their rights

Constitutional Court Justices Bess Nkabinde and Chris Jafta argue in court papers that the Constitutional Court has breached their right to equal protection and benefit of the law. In an unprecedented case, the two have applied for an order of the Constitutional Court to be reversed, saying it was made ‘in error’, according to Franny Rabkin in a Business Day report. She notes the case has its roots in the ongoing ‘Hlophe saga’ – the complaint by all the then justices of the Constitutional Court that the Western Cape Judge President had tried to influence the court on corruption matters pertaining to President Jacob Zuma. The drawn out process – Jafta and Nkabinde, who were supposed to be the key witnesses against Hlophe at a tribunal set up by the JSC, challenged its lawfulness – finally reached the Constitutional Court, which refused them leave to appeal, saying since so many of its 11 members were conflicted, it did not have a quorum. But the two judges have applied for the order to be rescinded – saying their colleagues had not given them the opportunity to make submissions on the issue of recusal. In a further affidavit, notes Rabkin, Jafta said the order was open to rescission because the basis of the court’s decision to turn them away (the inability to get a quorum) was a factor that had been raised by the court itself; they had not been given an opportunity to argue on it. ‘We were not heard in respect of a point that was not on the papers but was raised by the court mero motu in the absence of the parties,’ said Jafta.