S v Molaudzi

• Jurisdiction: South Africa
• Citation: 2015 (2) SACR 341 (CC)

S v Molaudzi
2015 (2) SACR 341 (CC)

2015 (2) SACR p341

Citation	2015 (2) SACR 341 (CC)
Case No	CCT 42/15; [2015] ZACC 20
Court	Constitutional Court
Judge	Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Khampepe J, Madlanga J, Molemela AJ, Nkabinde J, Theron AJ and Tshiqi AJ
Heard	June 25, 2015
Judgment	June 25, 2015
Counsel	D Jordaan for the applicant at the request of the court.; N Carpenter for the state.

Flynote : Sleutelwoorde

Appeal — To Constitutional Court — Res judicata — Multiple appeals — Relaxation of doctrine — Second appeal on newly introduced constitutional ground — Court to balance rule of law and legal certainty against necessity to vindicate constitutional rights of unrepresented and vulnerable C party — Circumstances have to be wholly exceptional to justify departure from res judicata doctrine — No effective alternative remedy — Second appeal entertained.

Headnote : Kopnota

The applicant was convicted in a High Court of a number of offences and was D sentenced to imprisonment. In the present matter he sought leave to appeal against the convictions and sentences which were confirmed on appeal by the full court. In 2013, and without legal representation, the applicant applied for leave to appeal to the Constitutional Court based largely on the contention that the court a quo had incorrectly applied the principles in S v Ndhlovu and Others 2002 (2) SACR 325 (SCA) (2002 (6) SA 305; [2002] 3 All SA 760; [2002] ZASCA 70). The Constitutional Court E dismissed the application, holding that it did not raise a proper constitutional issue for it to entertain and that there were no reasonable prospects of success. Two of his co-accused in the High Court trial also applied for leave to appeal and raised constitutional arguments regarding the evidence admitted against them, in particular the constitutional validity of the admissibility of extra-curial statements of an accused against a co-accused. F The Constitutional Court granted leave to appeal and overturned their convictions, after which they were released from prison. In terms of directions issued by the Constitutional Court the applicant then brought the present proceedings for leave to appeal, raising the same arguments as his co-accused in their successful constitutional challenge. The sole issue requiring the attention of the Constitutional Court was whether the previous final order of the Constitutional Court dismissing the previous G application for leave to appeal brought by the applicant rendered the matter res judicata.

Held, that, even though a constitutional challenge was not raised and decided in the earlier application, the present application ought to be considered res judicata since the merits of the applicant's appeal were considered and ruled on by the Constitutional Court. (Paragraph [21] at 351b.) H

Held, further, that although the general thrust of international jurisprudence was that res judicata was usually recognised in one way or another as necessary for legal certainty and the proper administration of justice, many jurisdictions recognised that this could not be absolute since the perpetuation of an error was no virtue, but to correct it was a compulsion of judicial conscience. (Paragraph [30] at 355a.) I

Held, further, that in the present matter the interests of justice required the court to balance the rule of law and legal certainty in the finality of criminal convictions, as well as the effect on the administration of justice, if parties were allowed to approach the court on multiple occasions on the same matter, against the necessity to vindicate the constitutional rights of an unrepresented, vulnerable party in the case where a similarly situated J

2015 (2) SACR p342

A accused had been granted relief. As in the present case, the circumstances had to be wholly exceptional to justify a departure from the res judicata doctrine. The interests of justice were the general standard and the vital question was whether there were truly exceptional circumstances. (Paragraph [38] at 358f–g.)

Held, further, that the present case demonstrated exceptional circumstances that B cried out for flexibility on the part of the Constitutional Court in fashioning a remedy, where there was no effective alternative, to protect the rights of a person such as the applicant in the present case. (Paragraph [45] at 360g.) Leave to appeal was accordingly granted and the convictions and sentences were set aside.

Cases cited

Southern Africa C

Bafokeng Tribe v Impala Platinum Ltd and Others 1999 (3) SA 517 (BH) (1998 (11) BCLR 1373): referred to

Baphalane Ba Ramokoka Community v Mphela Family and Others: In re Mphela Family and Others v Haakdoornbult Boerdery CC and Others 2011 (9) BCLR 891 (CC) ([2011] ZACC 15): referred to D

Bertram v Wood (1893) 10 SC 177: referred to

Boshoff v Union Government 1932 TPD 345: applied

Carmichele v Minister of Safety and Security and Another (Centre for Applied E Legal Studies Intervening) 2002 (1) SACR 79 (CC) (2001 (4) SA 938; 2001 (10) BCLR 995; [2001] ZACC 22): referred to

Children's Institute v Presiding Officer, Children's Court, Krugersdorp and Others 2013 (2) SA 620 (CC) (2013 (1) BCLR 1; [2012] ZACC 25): referred to

Children's Resource Centre Trust and Others v Pioneer Foods (Pty) Ltd and Others 2013 (2) SA 213 (SCA) ([2012] ZASCA 182): referred to F

Daniel v President of the Republic of South Africa and Another 2013 (11) BCLR 1241 (CC) ([2013] ZACC 24): compared

Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd 2012 (1) SA 256 (CC) (2012 (3) BCLR 219; [2011] ZACC 30): referred to

Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A): referred to G

Firestone South Africa (Pty) Ltd v Gentiruco AG 1977 (4) SA 298 (A): referred to

Fourie and Another v Minister of Home Affairs and Others 2005 (3) SA 429 (SCA) (2005 (3) BCLR 241; [2005] 1 All SA 273; [2004] ZASCA 132): referred to

Glenister v President of the Republic of South Africa and Others 2013 (11) BCLR 1246 (CC) ([2013] ZACC 20): referred to H

Hyprop Investments Ltd and Others v NSC Carriers and Forwarding CC and Others 2014 (5) SA 406 (SCA) ([2014] 2 All SA 26; [2013] ZASCA 169): dictum in para [14] applied

K v Minister of Safety and Security 2005 (6) SA 419 (CC) (2005 (9) BCLR 835; I [2005] 8 BLLR 749; [2005] ZACC 8): referred to

Ka Mtuze v Bytes Technology Group South Africa (Pty) Ltd and Others 2013 (12) BCLR 1358 (CC) ([2013] ZACC 31): referred to

Kommissaris van Binnelandse Inkomste v Absa Bank Bpk 1995 (1) SA 653 (A) ([1995] 1 All SA 517): dicta at 669F – H applied

Mbatha v University of Zululand 2014 (2) BCLR 123 (CC) ([2013] ZACC 43): J referred to

2015 (2) SACR p343

Mkontwana v Nelson Mandela Metropolitan Municipality and Another; A Bissett and Others v Buffalo City Municipality and Others; Transfer Rights Action Campaign and Others v MEC, Local Government and Housing, Gauteng and Others (Kwazulu-Natal Law Society and Msunduzi Municipality as Amici Curiae) 2005 (1) SA 530 (CC) (2005 (2) BCLR 150; [2004] ZACC 9): referred to

Moch v Nedtravel (Pty) Ltd t/a American Express Travel Service 1996 (3) SA 1 (A) ([1996] ZASCA 2): B referred to

Mpofu v Minister for Justice and Constitutional Development 2013 (2) SACR 407 (CC) (2013 (9) BCLR 1072; [2013] ZACC 15): referred to

Mukaddam v Pioneer Foods (Pty) Ltd and Others 2013 (5) SA 89 (CC) (2013 (10) BCLR 1135; [2013] ZACC 23): dictum in para [32] applied

National Sorghum Breweries Ltd (t/a Vivo African Breweries) v International Liquor Distributors (Pty) Ltd C 2001 (2) SA 232 (SCA) ([2001] 1 All SA 417; [2000] ZASCA 70): referred to

National Union of Metalworkers of SA and Others v Fry's Metal (Pty) Ltd 2005 (5) SA 433 (SCA) ((2005) 26 ILJ 689; 2005 (9) BCLR 879; [2005] 5 BLLR 430; [2005] ZASCA 39): referred to D

Oosthuizen v Road Accident Fund 2011 (6) SA 31 (SCA) ([2011] ZASCA 118): compared

Paulsen and Another v Slip Knot Investments 777 (Pty) Ltd 2015 (3) SA 479 (CC) ([2015] ZACC 5): dictum in para [116] applied

Phoebus Apollo Aviation CC v Minister of Safety and Security 2003 (2) SA 34 (CC) (2003 (1) BCLR 14; [2002] ZACC 26): referred to E

S v Boesak 2001 (1) SACR 1 (CC) (2001 (1) SA 912; 2001 (1) BCLR 36; [2000] ZACC 25): referred to

S v Matjeke and Others [2013] ZANWHC 95: dictum in para [44] overruled

S v Mhlongo; S v Nkosi 2015 (2) SACR 323 (CC) ([2015] ZACC 19): followed

S v Molaudzi 2014 (7) BCLR 785 (CC) ([2014] ZACC 15): overruled on appeal F

S v Molimi 2008 (2) SACR 76 (CC) (2008 (3) SA 608; 2008 (5) BCLR 451; [2008] ZACC 2): referred to

S v Ndhlovu and Others 2002 (2) SACR 325 (SCA) (2002 (6) SA 305; [2002] 3 All SA 760; [2002] ZASCA 70): overruled

Smith v Porritt and Others 2008 (6) SA 303 (SCA) ([2007] ZASCA 19): G dictum in para [10] applied

South African Broadcasting Corp Ltd v National Director of Public Prosecutions and Others 2007 (1) SACR 408 (CC) (2007 (1) SA 523; 2007 (2) BCLR 167; [2006] ZACC 15): dictum in para [90] followed

Zondi v MEC, Traditional and Local Government Affairs and Others 2006 (3) SA 1 (CC) (2006 (3) BCLR 423; [2005] ZACC 18): referred to. H

England

Arnold v National Westminster Bank plc [1991] 2 AC 93 ([1991] 3 All ER 41; [1991] 2 WLR 1177): referred to

In re Pinochet [1999] UKHL 1 ([2000] 1 AC 119; [1999] 1 All ER 577; [1999] 2 WLR 272; 6 BHRC 1): compared I

Taylor v Lawrence [2002] UKPC 30 ([2003] QB 528; [2002] 2 All ER 353; [2002] All ER (D) 28; [2003] 1 WLR 18): compared.

India

AT Sharma v AP Sharma AIR 1979 SC 1047 ((1979) 4 SCC 389): compared J

2015 (2) SACR p344

MS Ahlawat v State of Haryana and Another 1999 Supp (4) SCR 160: compared A

Northern Indian Caterers (India) Ltd v Lt Governor of Delhi AIR [1979] INSC 275 (1980 2 SCC 167; 1980 2 SCR 650; AIR 1980 SC 674): compared.

Canada

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