Mkhwebane's intended rescission application exploits the damage done by Zuma case

When the Constitutional Court dismissed former president Jacob Zuma’s application to rescind, or reverse, its order that he be imprisoned for contempt, Constitutional Court justice Sisi Khampepe said if the court did not tread carefully in its judgment it “might soon find itself inundated with similarly unmeritorious applications”.

“I fear that significant damage has already been done,” Khampepe said.

They were prescient words.

This week public protector Busisiwe Mkhwebane told parliament she would be making her second application to the highest court to rescind a judgment against her.

She asked MPs to put their impeachment process against her on ice — pending finalisation of her planned application to reverse the judgment that cleared the path for it.  Her lawyers made a veiled threat that they would litigate if parliament did not stop and wait.

Mkhwebane has been litigating on the rules governing her possible impeachment since mid-2020. The Constitutional Court’s unanimous judgment pronouncing on the constitutionality of these rules, delivered earlier this month, was expected to be the final word on this score.

But this week Mkhwebane’s lawyers set out in a letter to parliament some of the grounds of their “proposed application for rescission, variation and/or consideration”.

The application would be “mainly based on rule 42(1)(b)", they said. The rule, from the Uniform Rules of Court, allows a court to change a judgment or order “in which there is an ambiguity, or a patent error or omission, but only to the extent of such ambiguity, error or omission”.

Their grounds for rescission include that the highest court “misapplied its own judgments” in three cases, and the court’s “failing to recognise” that parliament’s impeachment rules were tainted by the fact that political parties may nominate members to the panel that makes a preliminary assessment of whether there are prima facie grounds for impeachment.

Khampepe’s judgment in the Zuma case was given in terms of rule 42(1)(a), which deals with judgments obtained in the absence of one of the parties. This would obviously not be applicable here, since Mkhwebane was there — fully represented by senior counsel — all the way to the Constitutional Court.

However, where Khampepe’s judgment deals with what kind of errors can give rise to a successful rescission application, it is relevant and poses significant obstacles for the public protector.

Mkhwebane’s seven-year tenure is due to expire in October 2023 and her intended rescission application is already being criticised as a stratagem to kick the can down the road

For one thing, Khampepe says in her judgment that a court cannot “in rescission proceedings, return to an issue that has already been addressed” and that rescission proceedings cannot be used to reargue the merits of a case: “Unfortunately for Mr Zuma, even if we were minded to interpret the meaning of error expansively, doing so would not serve him. This is because what he would have this court consider, we have already considered.”

So, where Mkhwebane’s lawyers say in their letter that the Constitutional Court made a rescindable error when it “misapplied its own judgments” — citing for example a 2013 a case brought by the National Society for the Prevention of Cruelty to Animals (NSPCA) —  they will bump up against paragraph 59 of the court's ruling this month in which it rejected the public protector’s argument on how to interpret the NSPCA judgment and pronounced on what the correct way was.

Similarly, paragraph 66 of the impeachment judgment addresses the nomination by political parties of the panel members.

Even if the public protector does not agree with the Constitutional Court’s judgment —  indeed, even if academics and legal commentators view one of the court's judgments as wrong —  rescission is not available to address that. Rescission “does not allow for a 'parallel appeal process' or 'additional bites at the proverbial appeal cherry’", said Khampepe.

In the go-to civil procedure textbook Superior Court Practice, the authors describe the kind of mistakes that fall under rule 42(1)(b). They are mistakes “as a result of which the judgment granted does not reflect the real intention of the judicial officer pronouncing it”.

The commentary gives examples, including a case in which a court overlooked a plaintiff’s claim for interest and an agreed change in the calculation of damages. 

Mkhwebane’s seven-year tenure is due to expire in October 2023 and her intended rescission application is already being criticised as a stratagem to kick the can down the road. 

Despite the strong majority judgment from Khampepe, at the time of the Zuma case commentators were surprised that the highest court even granted a hearing in the application.

But more surprising from the Constitutional Court is the way it has dealt with Mkhwebane’s first rescission application. In July last year, Mkhwebane quickly followed Zuma’s example, seeking rescission of the court's judgment that set her CR17 report aside as unlawful. 

In September, Mkhwebane filed a replying affidavit. Since then, five months later,  there have  been no developments. Her spokesperson, Oupa Segalwe, said on Thursday that Mkhwebane’s office had not heard from the court.

With this uncertainty, the unmeritorious applications Khampepe warned of may indeed proliferate. 

This week parliament declined to put its impeachment process on hold since there is no legal obstacle.