CCT34/13

[2013] ZACC 24

2013 (11) BCLR 1241 (CC)

The Court

27 June 2013

http://hdl.handle.net/20.500.12144/3726

Application for the rescission of an order previously granted by the CC. This application is a sequel to the application lodged in the CC by the applicant in case CCT106/12 (first application). In that case the applicant sought an order declaring that the President’s failure to appoint an independent Commission of Inquiry was inconsistent with the Constitution. In addition, the applicant sought an order directing the President to establish a Commission. Having considered that application, this Court issued an order on 31 January 2013 dismissing it as it was not in the interests of justice to hear the matter at that stage.

Application for the rescission of an order previously granted by this Court. The applicant had sought an order declaring that the President’s failure to appoint an independent Commission of Inquiry was inconsistent with the Constitution, but his application was dismissed on the ground that it was not in the interests of justice to consider the matter at this stage, since other courts had jurisdiction. The rescission of that order was sought on the ground that it was erroneously granted. The submission was that the President’s failure or refusal to appoint a Commission of Inquiry constitutes a failure to fulfil a constitutional obligation contemplated in section 167(4)(e) of the Constitution, giving this Court exclusive jurisdiction (and the applicant direct access). The Court held that section 84(2)(f) of the Constitution, which gives the President the power to establish a Commission of Inquiry, does not impose a duty on the President but a power which may be exercised at his discretion. Accordingly, the President’s failure to appoint a Commission of Inquiry does not amount to a failure to fulfil a constitutional obligation. Therefore the Court did not have exclusive jurisdiction, and the impugned order was not granted erroneously. Judgment of the Court: (Mogoeng CJ, Moseneke DCJ, Bosielo AJ, Froneman J, Jafta J, Khampepe J, Mhlantla AJ, Nkabinde J, Skweyiya J, and Zondo J) .