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[2015] ZACC 20
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Molaudzi v S (CCT42/15) [2015] ZACC 20; 2015 (8) BCLR 904 (CC); 2015 (2) SACR 341 (CC) (25 June 2015)
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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT 42/15
In the matter
between:
THEMBEKILE
MOLAUDZI
Applicant
and
THE
STATE
Respondent
Neutral citation:
Molaudzi v S
[2015]
ZACC 20
Coram:
Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J,
Khampepe J, Madlanga J, Molemela AJ, Nkabinde J, Theron AJ and
Tshiqi AJ
Judgment:
Theron AJ (unanimous)
Decided on:
25 June 2015
Summary:
Doctrine of
res
judicata
— power to relax
doctrine in exceptional circumstances — sections 173 and 39(2)
of the Constitution — circumstances
in which Court will revisit
final judgments in criminal cases
ORDER
On appeal from the
Full Court of the North West High Court, Mafikeng (hearing an appeal
from Leeuw J):
1.
Leave to appeal is granted.
2.
The appeal is upheld.
3.
The order under case number CAF 08/2012 of the Full Court of the
North West High
Court, Mafikeng, is set aside to the extent set out
below:
(i)
The appeal by the fifth appellant against his convictions and
sentences on counts
1, 2, 4 and 5 is upheld.
(ii)
His convictions and sentences on those counts are set aside.
4.
The applicant must be released from prison immediately.
JUDGMENT
THERON AJ (Mogoeng
CJ, Moseneke DCJ, Cameron J, Froneman J, Khampepe J, Madlanga J,
Molemela J, Nkabinde J and Tshiqi AJ concurring):
Introduction
[1]
The applicant, Mr Thembekile Molaudzi,
seeks leave to appeal against his convictions and sentences as
imposed by the North West
High Court, Mafikeng (High Court),
[1]
and confirmed on appeal by the Full Court of the High Court (Full
Court).
[2]
The application concerns the doctrine of
res
judicata
and this Court’s power
to reconsider a previous final order.
Factual background
[2]
On 3 August 2002 the deceased, Warrant
Officer Johannes Dingaan Makuna, was shot at his home. It was
alleged that Mr Molaudzi
was part of a group of men who shot Mr
Makuna and planned to steal his bakkie. Mr Makuna later died in
hospital. At
the time, the deceased had been in possession of
his service pistol. It was never recovered.
Trial court proceedings
[3]
Arising out of this incident, Mr Molaudzi
(accused 5), together with seven co accused,
[3]
stood trial before a single judge in the High Court (trial court).
Two of the accused were Mr Boswell Mhlongo (accused 2)
and Mr Alfred
Nkosi (accused 4), the applicants before this Court in cases CCT
148/14 and CCT 149/14, respectively (related cases).
The
accused were charged with murder (count 1), robbery with aggravating
circumstances (count 2), attempted robbery (count
3), unlawful
possession of firearms (count 4) and unlawful possession of
ammunition (count 5). In the alternative to murder,
they were
charged with conspiracy to commit robbery in contravention of section
18(2)(a) of the Riotous Assemblies Act.
[4]
They pleaded not guilty to the charges. The trial commenced in
2003 and continued into 2004.
[4]
A trial-within-a-trial was held to
determine the admissibility of extra-curial statements made by
accused 1, 3, 6 and 7. The
admissibility of these statements
was contested by the accused on the basis that they were not made
freely and voluntarily but
under threat of assault or promise of
reward. The Court nevertheless ruled that the statements were
admissible. It
also found that the statements were admissions
and not confessions,
[5]
and admissible against the other accused in terms of section 3(1)(c)
of the Law of Evidence Amendment Act
[6]
(Evidence Amendment Act). In this regard, the High Court relied
on
Ndhlovu
,
where the Supreme Court of Appeal held that such statements were
admissible in terms of the Evidence Amendment Act.
[7]
The evidence supporting the convictions of Mr Molaudzi and the
applicants in the related cases was based almost exclusively
on the
extra-curial statements made by their co-accused.
[8]
[5]
The trial court found that the accused had
a common purpose to murder and rob the deceased and convicted them of
four of the five
counts.
[9]
On 22 July 2004, they were sentenced to life imprisonment for the
murder; fifteen years’ imprisonment for the robbery;
and three
years’ imprisonment in respect of each of the two remaining
charges relating to possession of the firearms and
ammunition.
The sentences imposed for counts 2, 4 and 5 were ordered to run
concurrently with the life sentences. The
accused were
acquitted of the alternative charge of conspiracy to commit robbery.
Full Court and Supreme
Court of Appeal
[6]
The accused appealed to the Full Court
against their convictions and sentences. The appeal was largely
grounded on the inadmissibility
of the extra-curial statements.
[10]
It was dismissed, amongst other reasons, on the ground that the
hearsay evidence of Mr Thabo Matjeke (accused 1) and Mr George
Makhubela (accused 3), which was relied on to convict Mr Molaudzi
became “automatically admissible”, because these
accused
confirmed portions of the statements in their oral testimony.
The Full Court concluded that the statements—
“
[are]
not hearsay evidence but evidence envisaged in section 3(1)(b) of the
[Evidence Amendment] Act. Once the declarant of
the statement
confirms it under oath, the evidence becomes automatically
admissible. The question of whether the interests
of justice
require it, has no application here”.
[11]
[7]
The Court ruled that the statement of Mr
Samuel Khanye (accused 7)
[12]
was admissible in the interests of justice, as provided for in
section 3(1)(c) of the Evidence Amendment Act, and it was
corroborated
by aspects of the testimony of Mr Matjeke and Mr
Makhubela. The Full Court also found that there was no reason
to interfere
with the sentences imposed. A petition to the
Supreme Court of Appeal for leave to appeal was dismissed on 6 August
2013.
In this Court
[8]
In 2013, Mr Molaudzi applied for leave to
appeal, without legal representation, to this Court in case CCT
126/13 (first application).
Mr Molaudzi based the first
application largely on the fact that the trial court and the Full
Court did not properly apply the
principles of
Ndhlovu
to his case. He drew attention to
the fact that in admitting hearsay evidence, courts must take all the
factors in section
3(1)(c) of the Evidence Amendment Act into
consideration. He contended that the Court mistakenly
corroborated Mr Matjeke’s
evidence with other evidence which he
maintained did not implicate him and that the evidence of Mr Majteke
– which primarily
implicated him – was unreliable.
[9]
His further argument was that the
extra-curial statement of Mr Matjeke was a confession and not an
admission and was therefore barred
by section 219 of the Criminal
Procedure Act.
[13]
Mr Molaudzi also argued that the trial was procedurally unfair in
that the trial court: ruled on the admissibility of hearsay
evidence
after the State closed its case; rushed the proceedings; allowed Mr
Matjeke to re-open his case; and allowed the defence
to testify out
of sequential order. These grounds covered many of the same
issues dealt with by the Full Court. The
first application was
dismissed. In a short judgment, this Court held:
“
The applicant now seeks leave to this Court
essentially on the basis that he was wrongly convicted. The
application cannot
succeed. It is based on an attack on the
factual findings made in the trial court. That does not raise a
proper constitutional
issue for this Court to entertain.
In addition, there are no reasonable prospects of
success. The Full Court considered the arguments on appeal and
properly
rejected them. The application for leave to appeal
must thus be dismissed.”
[14]
(Footnote omitted.)
[10]
In 2014, the applicants in the related
cases, Mr Mhlongo and Mr Nkosi, applied for leave to appeal against
their convictions and
sentences but raised constitutional arguments
regarding the evidence admitted against them. In particular,
they challenged
the constitutional validity of the admissibility of
extra-curial statements of an accused against a co-accused in a
criminal trial.
This Court considered the challenge to raise a
meritorious constitutional issue which engaged this Court’s
jurisdiction;
granted those applicants leave to appeal; and
subsequently overturned their convictions. They have been
released from prison.
[11]
Pursuant to directions issued by this
Court, Mr Molaudzi brought a further application (second application)
for leave to appeal
to this Court. In this application, he
raises the same arguments as Mr Mhlongo and Mr Nkosi in the related
cases. This
Court issued further directions to the parties,
calling for written submissions on whether the Court was precluded
from entertaining
the matter on the basis that it was
res
judicata
.
[15]
Submissions were filed by both parties and the Court has
decided this matter without a hearing.
Submissions in this
Court
[12]
Mr Molaudzi contends that his first
application was different from his second one, in that it was
premised on an attack against
the factual findings of the trial court
and the Full Court. The first application did not raise a
constitutional issue and
accordingly did not engage this Court’s
jurisdiction. Mr Molaudzi argues that the challenge to the
constitutional tenability
of the admissibility of extra curial
statements by an accused against a co-accused was not raised in the
first application.
This Court did not make a decision on this
constitutional challenge and therefore the second application (which
pertinently raises
it) is not
res
judicata
. The State agrees with
these submissions.
Leave to appeal
[13]
Mr Molaudzi argues
that this second application raises constitutional issues that place
the matter firmly within this Court’s
jurisdiction. It
does. As this Court held in the related cases, the
admissibility of an extra-curial statement by an
accused against a
co accused in a criminal trial
engages
this Court’s jurisdiction as it implicates the right to
equality before the law.
[16]
In addition, the unusual questions the application raises about
the doctrine of
res judicata
are
arguable
points of law of general public importance. I
t
is in the interests of justice for this Court to grant leave to
appeal.
Res judicata
[14]
Res judicata
[17]
is the legal doctrine that bars continued
litigation of the same case, on the same issues, between the same
parties.
[18]
Claassen defines
res judicata
as—
“
[a]
case or matter is decided. Because of the authority with which
in the public interest, judicial decisions are invested,
effect must
be given to a final judgment, even if it is erroneous. In
regard to
res judicata
the enquiry is not whether the judgment is right or wrong, but simply
whether there is a judgment.”
[19]
[15]
In
Bertram
,
[20]
the Supreme Court of the Cape of Good Hope traced the doctrine back
to the Digest (50.17.207), which provided that – as a
rule of
law – once a matter is adjudged it is accepted as the truth:
“
The
meaning of the rule is that the authority of
res
judicata
includes a presumption that
the judgment upon any claim submitted to a competent court is correct
and this presumption being
juris et de
jure
, excludes every proof to the
contrary. The presumption is founded upon public policy which
requires that litigation should
not be endless and upon the
requirements of good faith which, as said by Gaius, does not permit
of the same thing being demanded
more than once. On the other
hand, a presumption of this nature, unless carefully circumscribed,
is capable of producing
great hardship and even positive injustice to
individuals. It is in order to prevent such injustice that the
Roman law laid
down the exact conditions giving rise to the
exceptio
rei judicatae
.”
[21]
(Citation omitted.)
[16]
The underlying rationale of the doctrine of
res judicata
is to give effect to the finality of judgments. Where a cause
of action has been litigated to finality between the same parties
on
a previous occasion, a subsequent attempt by one party to proceed
against the other party on the same cause of action should
not be
permitted. It is an attempt to limit needless litigation and
ensure certainty on matters that have been decided by
the courts.
[22]
Is the second
application res judicata?
[17]
In the first application, Mr Molaudzi
raised challenges to the factual findings of the trial court,
[23]
which did not properly engage this Court’s jurisdiction.
[24]
He also alleged procedural trial irregularities which were dealt with
comprehensively by the Full Court.
[25]
[18]
In the context of a criminal appeal there
is, strictly speaking, no “cause of action” but rather
grounds of appeal against
a particular conviction or sentence.
It is arguable that this may be akin to a “cause of action”
for the purposes
of
res judicata
.
It could be reasoned that in the first application this Court was not
called upon to adjudicate the substantive merits of
the
constitutional challenges now raised. By analogy this is a
different “cause of action” and therefore this
Court is
not precluded from hearing the second application under the
res
judicata
rule.
[19]
However, the general principle of
res
judicata
in the criminal context is
that once an application for leave to appeal is dismissed, this is a
judicial decision, which is final
and determinative.
[26]
It is somewhat different from civil cases where a defendant may raise
a plea of
res judicata
only where the same litigant seeks the same relief on the same cause
of action.
[27]
Thus it appears that in the criminal context, the “cause of
action” is more aptly regarded as the conviction
or sentence as
a whole. An accused who has been convicted and sentenced,
generally may not appeal against the decision more
than once –
despite changing the grounds for appeal.
[28]
The minority judgment of Van der Westhuizen J in
Mpofu
confirmed the need for finality in criminal matters:
“
The
fact that an application for leave to appeal or an appeal is without
merit, or ‘ill advised’, cannot easily
make it a
nullity and open the way for further appeals, every time on a
different ground.”
[29]
[20]
This accords with the public policy
considerations underpinning criminal
res
judicata
: to bring about finality to a
conviction.
[30]
If a convicted person was allowed to launch successive appeal
proceedings on different grounds, this would undermine legal
certainty and inundate courts with frivolous litigation.
[21]
Even though a constitutional challenge was
not raised and decided in the first application, the second
application ought to be considered
res
judicata
as the merits of Mr Molaudzi’s
appeal were considered by this Court and ruled on.
Doctrine not to be
rigidly applied
[22]
Courts have, over time, expressed the view
that the doctrine of
res judicata
should not be applied rigidly. The relaxation of the doctrine
effectively started in
Boshoff
,
[31]
where it was held that the strict requirements for a plea of
res
judicata
should not be understood
literally in all circumstances and applied as an inflexible or
immutable rule.
[32]
Despite debate as to the approach of Greenberg J in
Boshoff
,
Botha JA in
Kommissaris
confirmed
the correctness of the approach.
[33]
He added that in particular circumstances these requirements may be
adapted and extended to avoid the unacceptable alternative
that
courts cling to old doctrines with literal formalism.
[34]
[23]
Following
Boshoff
and
Kommissaris
,
Scott JA in
Smith
summarised
the development of the law
:
“
[T]he
ambit of the
exceptio rei judicata
has over the years been extended by the relaxation in appropriate
cases of the common-law requirements that the relief claimed
and the
cause of action be the same . . . in both the case in question and
the earlier judgment. . . . Each case will depend
on its own
facts and any extension of the defence will be on a case-by-case
basis. . . . Relevant considerations will include
questions of
equity and fairness not only to the parties themselves but also to
others. As pointed out by De Villiers CJ
as long ago as 1893 in
Bertram
.
. . ‘unless carefully circumscribed, [the defence of
res
judicata
] is capable of producing great
hardship and even positive injustice to individuals’.”
[35]
(References and citations omitted.)
In
Bafokeng
Tribe
, it was stated that the principle
of
res judicata
“must
be carefully delineated and demarcated in order to prevent hardship
and actual injustice to the parties”.
[36]
International
developments
[24]
In developing exceptions to the
res
judicata
doctrine it is instructive to
look at the exceptions admitted by other jurisdictions. In
Amtim Capital Inc
[37]
the Court of Appeal for Ontario, Canada, stated that the purpose of
res judicata
is
to balance the public interest in finality of litigation with the
public interest of ensuring a just result on the merits.
[38]
The Court found that the doctrine is intended to promote orderly
administration of justice and is not to be mechanically
applied where
to do so would create an injustice.
[39]
In addition, rule 73(1) of the Rules of the Supreme Court of Canada
provides for reconsideration of final decisions in “exceedingly
rare
circumstances”.
[40]
[25]
In
the United
Kingdom,
res judicata
is
known as cause of action estoppel or issue estoppel.
[41]
In rare instances the court may reconsider
its own previous judgments. In
Pinochet
,
the House of Lords observed:
“
In
principle it must be that your Lordships, as the ultimate court of
appeal, have power to correct any injustice caused by an earlier
order of this House. There is no relevant statutory limitation
on the jurisdiction of the House in this regard and therefore
its
inherent jurisdiction remains unfettered.
. . .
However,
it should be made clear that the House will not reopen any appeal
save in circumstances where, through no fault of a party,
he or she
has been subjected to an unfair procedure. Where an order has
been made by the House in a particular case there
can be no question
of that decision being varied or rescinded by a later order made in
the same case just because it is thought
that the first order is
wrong.”
[42]
(References omitted.)
[26]
Lower courts have later made similar
findings. In
Taylor
,
the civil division of the Court of Appeal held that—
“
The
need to maintain confidence in the administration of justice makes it
imperative that there should be a remedy. The need
for an
effective remedy in such a case may justify this court in taking the
exceptional course of reopening proceedings which it
has already
heard and determined. What will be of the greatest importance
is that it should be clearly established that a
significant injustice
has probably occurred and that there is no alternative effective
remedy. The effect of reopening the
appeal on others and the
extent to which the complaining party is the author of his own
misfortune will also be important considerations.
”
[43]
After
Taylor
,
the Civil Procedure Rules were adapted to explicitly provide for the
reopening of “a final determination”.
[44]
[27]
In Singapore, the Court of Appeal
distinguishes between its powers regarding criminal and civil
appeals. With regard to criminal
appeals it appears to consider
itself a creature of statute and not equipped with the power to
revisit any final criminal decisions.
[45]
In respect of civil matters, it finds that it has inherent
jurisdiction to achieve a variety of results.
[46]
This distinction has been criticised as artificial and without
basis.
[47]
[28]
In India, article 137 of the Constitution
provides:
“
Subject
to the provisions of any law made by Parliament or any rules made
under article 145, the Supreme Court shall have power
to review any
judgment pronounced or order made by it.”
[48]
[29]
The Supreme Court of India has held that
this power is reserved for the correction of serious injustice.
It is for the correction
of a mistake, not to substitute a view.
[49]
The ordinary position is that a judgment is final and cannot be
revisited. The power to review is statutory.
It can be
exercised when there is a patent and obvious error of fact or law in
the judgment.
[50]
The injustice must be apparent and should not admit contradictory
opinions.
[51]
[30]
The general thrust is that
res
judicata
is usually recognised in one
way or another as necessary for legal certainty and the proper
administration of justice. However,
many jurisdictions
recognise that this cannot be absolute. This is because “[t]o
perpetuate an error is no virtue but
to correct it is a compulsion of
judicial conscience”.
[52]
This Court’s power
to revisit final orders
[31]
Section 173 of the Constitution provides:
“
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.”
In terms of section 173, each superior court is
the master of its own process.
[53]
Jafta J stated in
Mukaddam
:
“
It
is apparent from the text of the section that it does not only
recognise the courts’ power to protect and regulate their
own
processes but also their power to develop the common law where
necessary to meet the interests of justice. The guiding
principle in exercising the powers in the section is the interests of
justice.”
[54]
[32]
Since
res
judicata
is a common law principle, it
follows that this Court may develop or relax the doctrine if the
interests of justice so demand.
[55]
Whether it is in the interests of justice to develop the common law
or the procedural rules of a court must be determined
on a
case-by-case basis.
[56]
Section 173 does not limit this power. It does, however,
stipulate that the power must be exercised with due regard
to the
interests of justice.
[57]
Courts should not impose inflexible requirements for the
application of this section.
[58]
Rigidity has no place in the operation of court procedures.
[59]
[33]
This
inherent power to regulate process, does not apply to substantive
rights but rather to adjectival or procedural rights.
[60]
A court may exercise inherent jurisdiction to regulate its own
process only when faced with inadequate procedures and rules
in the
sense that they do not provide a mechanism to deal with a particular
scenario. A court will, in appropriate cases,
be entitled to
fashion a remedy to enable it to do justice between the parties.
[61]
This Court held in
South African
Broadcasting Corp Ltd
:
“
The
power in section 173 vests in the judiciary the authority to uphold,
to protect and to fulfil the judicial function of administering
justice in a regular, orderly and effective manner. Said
otherwise it is the authority to prevent any possible abuse of
process and to allow a court to act effectively within its
jurisdiction.”
[62]
[34]
The power in section 173 must be used
sparingly
[63]
otherwise there would be legal uncertainty and potential chaos.
[64]
In addition, a court cannot use this power to assume jurisdiction
that it does not otherwise have.
[65]
[35]
This Court is empowered to vary orders in
limited circumstances, essentially if the order was made in error, in
terms of rule 42
of the Uniform Rules of Court, read with rule 29 of
the Rules of this Court.
[66]
The Court has recognised various exceptions to the
functus
officio
and
res
judicata
doctrines by effecting minor
alterations to final orders in order to clarify their true intention
or vary consequential matters.
[67]
In addition, this Court has entertained an application for rescission
of a final order on the grounds that it was based on
a
misapprehension of the law.
[68]
However, the question of the full extent of this Court’s powers
in this regard, has been left open. In
Baphalane
Cameron J explained:
“
In
invoking and applying rule 42, this Court has previously left open
the question what power it may have as a court of final appeal
to
vary its past orders under the common law, or under its inherent
power to protect and regulate its own process, or under its
power to
develop the common law, taking into account the interests of justice
[in terms of section 173]. It has also left
open the question
whether section 172 of the Constitution confers additional
powers on it to correct its own orders.”
[69]
(Footnotes omitted.)
[36]
In
Ka Mtuze
,
this Court was faced with an application in terms of the common law
“for reconsideration” of its earlier, final order.
[70]
The Court reiterated the position adopted in
Baphalane
that its power to revisit final orders
or go beyond rule 42 has not been determined.
[71]
The Court contemplated the possibility of reconsidering an
earlier final order, but stated that if it had such power, it
would
only be exercised in exceptional circumstances:
“
If
the position were to be that this Court does have power outside of
rule 29 read with rule 42 to reconsider and, in an appropriate
case,
change a final decision that it had already made, one can only think
that that would be in a case where it would be in accordance
with the
interests of justice to re-open a matter in that way. The
interests of justice would require that that be done in
very
exceptional circumstances. However, even if this Court had
power to entertain the application if the interests of justice
so
required, the applicant would have failed because a reading of his
affidavit reveals no exceptional circumstances.”
[72]
[37]
The incremental and conservative ways that
exceptions have been developed to the
res
judicata
doctrine speak to the dangers
of eroding it. The rule of law and legal certainty will be
compromised if the finality of a
court order is in doubt and can be
revisited in a substantive way. The administration of justice
will also be adversely affected
if parties are free to continuously
approach courts on multiple occasions in the same matter.
However, legitimacy and confidence
in a legal system demands that an
effective remedy be provided in situations where the interests of
justice cry out for one. There
can be no legitimacy in a legal
system where final judgments, which would result in substantial
hardship or injustice, are allowed
to stand merely for the sake of
rigidly adhering to the principle of
res
judicata
.
[38]
In this matter, the interests of justice
require this 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 are 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 a case
where similarly situated accused have been
granted relief. As in this case, the circumstances must be
wholly exceptional
to justify a departure from the
res
judicata
doctrine. The interests
of justice is the general standard, but the vital question is whether
there are truly exceptional
circumstances.
[39]
The parties agreed that apart from this
Court reconsidering the appeal, there is no effective alternate
remedy. If this Court
could not entertain Mr Molaudzi’s
second application, this would deny him his right to equality before
the law. His
case is similarly situated to the related cases of
Mr Mhlongo and Mr Nkosi – as with those applicants, his right
to equality
before law has also been infringed by the arbitrary
distinction between confessions and admissions which has the
consequence of
rendering extra-curial admissions of an accused,
admissible against a co-accused.
[40]
The applicant is serving a sentence of life
imprisonment, of which he has already served ten years. His
co-accused, convicted
on similar evidence, had their convictions and
sentences overturned. A grave injustice will result from
denying him the same
relief simply because in his first application
he did not have the benefit of legal representation, which resulted
in the failure
to raise a meritorious constitutional issue. The
interests of justice require that this Court entertain the second
application
on its merits, despite the previous unmeritorious
application, and relax the principle of
res
judicata
.
[41]
In
addition to the inherent power of courts to regulate their own
process and to develop the common law if it is in the interests
of
justice, section 39(2) of the Constitution enjoins courts to develop
the common law in line with the objects of the Bill of
Rights.
[73]
Moseneke DCJ
held in
Paulsen
that—
“
it
is implicit in section 39(2) read with section 173 that, where the
common law as it stands is deficient in promoting the section
39(2)
objectives, the courts are under a general obligation to develop it
appropriately.”
[74]
(Footnotes omitted.)
[42]
It is not ordinarily in the interests of
justice for this Court to be a court of first and last instance.
Indeed, the more
important and complex the issues, the more
compelling the need for the Court to be assisted by views of another
court.
[75]
However, in truly exceptional cases, where a
mechanical application of
res judicata
would fail to give effect to the
fundamental rights of an accused and would result in a grave
injustice, this Court is required,
even obliged,
[76]
to relax the doctrine to the extent necessary, to provide an
appropriate remedy. The minority judgment in
Mpofu
contemplated this:
“
When
unrepresented persons apply for leave to appeal, without necessarily
properly knowing their rights and what arguments may be
available to
them, it could be unduly harsh to preclude them from subsequently
applying for leave to appeal where they may have
a valid point,
particularly where there is a possible violation of one of their
rights protected in the Bill of Rights.”
[77]
[43]
Mr Molaudzi was unrepresented when he
lodged his first application with the Court and was thus not alive to
the full ambit of his
constitutional rights. The constitutional
arguments made in the second application were not previously before
the Court and
there is undisputed merit in these arguments as this
Court has set aside the convictions of two of Mr Molaudzi’s
co-accused
on the same grounds.
[78]
Relaxing res judicata
[44]
Mr Molaudzi’s second application, as
indicated earlier, raises issues that are in fact
res
judicata
, despite different grounds of
appeal having been raised in the first application. To find
otherwise would place too great
a burden on the administration of
justice as an appeal court would then have to consider each new
ground brought on appeal (particularly
in criminal convictions) to be
a fresh appeal. This would jeopardise legal certainty to an
unacceptable degree.
[45]
Where significant or manifest injustice
would result should the order be allowed to stand, the doctrine ought
to be relaxed in terms
of sections 173 and 39(2) of the Constitution
in a manner that permits this Court to go beyond the strictures of
rule 29
[79]
to revisit its past decisions. This requires rare and
exceptional circumstances, where there is no alternative effective
remedy. This accords with international approaches to
res
judicata
. The present case
demonstrates exceptional circumstances that cry out for flexibility
on the part of this Court in fashioning
a remedy to protect the
rights of an applicant in the position of Mr Molaudzi.
Merits of the second
application
[46]
Mr
Nkosi and Mr Mhlongo were convicted on a very similar basis to
Mr Molaudzi.
[80]
In the case of all three, the only evidence
against them at the close of the State’s case was the
extra-curial statements
of the co-accused. This evidence was
held to be inadmissible in
Mhlongo
.
[81]
If the trial court had correctly declared the
evidence inadmissible, Mr Molaudzi may have been entitled to be
discharged at that
stage. As counsel for the State conceded,
the evidence as a whole was still insufficient to ground Mr
Molaudzi’s conviction.
[82]
[47]
As with Mr Mhlongo and Mr Nkosi, the
remainder of the evidence against Mr Molaudzi consisted of the
oral testimony by two of
the applicants’ co-accused, Mr Matjeke
and Mr Makhubela.
[83]
For the reasons set out in paragraphs 41 to 43 of
Mhlongo
,
[84]
the in-court testimony of these accused was
inherently problematic but was also not corroborated by any other
independent evidence
and thus cannot justify his conviction.
Conclusion
[48]
The merits of the second application
warrant the same finding as in the related cases of Mr Mhlongo and Mr
Nkosi.
Order
1.
Leave to appeal is granted.
2.
The appeal is upheld.
3.
The order under case number CAF 08/2012 of the Full Court of the
North West High
Court, Mafikeng, is set aside to the extent set out
below:
(i)
The appeal by the fifth appellant against his convictions and
sentences on counts
1, 2, 4 and 5 is upheld.
(ii)
His convictions and sentences on those counts are set aside.
4.
The applicant must be released from prison immediately.
For the
Applicant:
D Jordaan at the request of the Court.
For the
Respondent:
N Carpenter instructed by the Office of the Director of Public
Prosecutions, North West.
[1]
Known then as the Bophuthatswana Provincial
Division.
[2]
A Full Court is the statutory term for a bench of
three High Court judges, usually sitting as an appeal court of that
Division,
in terms of
sections 1
and
17
(6)(a) of the
Superior Courts
Act 10 of 2013
. It was defined as a court consisting of two or
more judges in terms of
section 1(v)
of the repealed Supreme Court
Act 59 of 1959.
[3]
During the course of the proceedings in the trial
court, accused 6 disappeared and failed to attend court.
[4]
17 of 1956.
[5]
The trial court was initially of the view that
some of the statements were confessions. See the trial court
judgment at
49 and 51. (All page references to the trial court
judgment in these footnotes have been referred to, for ease of
reference,
by this Court’s own numbering – starting at
page one of the judgment (labelled as 1) and onwards.)
[6]
45 of 1988.
[7]
S v Ndhlovu and Others
[2002] ZASCA 70
;
2002
(2) SACR 325
(SCA) (
Ndhlovu)
.
[8]
This is dealt with later at [46] and below n 82.
[9]
Murder (count 1), robbery with aggravating
circumstances (count 2), unlawful possession of firearms (count 4)
and unlawful possession
of ammunition (count 5).
[10]
The other grounds upon which the appeal was based
in the Full Court, and no longer at issue on appeal before this
Court, were:
(1) An irregularity in the proceedings in that the
State closed its case before the trial court made a ruling on the
reception
of hearsay evidence against the co-accused; (2) The
accused testified out of sequence to the prejudice of their
co-accused; (3)
Mr Matjeke (accused 1) was allowed to reopen his
case without good reason; (4) The extra-curial evidence of Mr
Matjeke was given
involuntarily, he was not warned of his rights
beforehand and his in-court testimony was contradictory and
unreliable; (5) The
Court failed to apply the cautionary rule to the
evidence of Mr Matjeke and Mr Makhubela (accused 3); and (6) The use
of hearsay
evidence in the form of extra-curial statements by some
of the accused against other accused, was contrary to the principles
laid down in
S v Molimi
[2008] ZACC 2
;
2008 (3) SA 608
(CC);
2008 (5) BCLR 451
(CC).
[11]
Matjeke and Others v S
[2013]
ZANWHC 95
(Full Court judgment) at para 44.
[12]
Appellant 6 before the Full Court.
[13]
51 of 1977.
[14]
Molaudzi v S
[2014]
ZACC 15
; 2014 (7) BCLR (CC) (
Molaudzi
first judgment) at para 2.
[15]
See [14] below.
[16]
Mhlongo
v
S; Nkosi v S
[2015] ZACC 19
(
Mhlongo
)
at paras 16-7.
[17]
Res judicata
is
the Latin term for “a matter adjudged”. It is
usually raised as a defence in civil matters. In criminal
matters the principle automatically applies once final judgment is
given.
[18]
Baphalane Ba Ramokoka Community v Mphela
Family and Others; In re: Mphela Family and Others v Haakdoornbult
Boerdery CC and Others
[2011] ZACC 15
;
2011 (9) BCLR 891
(CC) (
Baphalane
)
at para 31 referring to
National
Sorghum Breweries Ltd (t/a Vivo African Breweries) v International
Liquor Distributors (Pty) Ltd
[2000]
ZASCA 70
;
2001 (2) SA 232
(SCA) (
National
Sorghum
) at para 2.
[19]
Claassen
Dictionary
of Legal Words and Phrases
(Butterworths, Durban 1977).
[20]
Bertram v Wood
(1893)
10 SC 177.
[21]
Id at 180.
[22]
Ka Mtuze v Bytes Technology Group South Africa
(Pty) Ltd and Others
[2013] ZACC 31
;
2013 (12) BCLR 1358
(CC) at para 18;
Mpofu
v Minister for Justice and Constitutional Development and Others
[2013] ZACC 15
;
2013 (2) SACR 407
(CC);
2013 (9) BCLR 1072
(CC) at paras 14-5; and
Bafokeng
Tribe v Impala Platinum Ltd and Others
1999
(3) SA 517
(B) at 566B-F.
[23]
Molaudzi
first
judgment above n 14.
[24]
See
Mbatha v
University of Zululand
[2013]
ZACC 43
;
2014 (2) BCLR 123
(CC) at paras 193-7 and the judgment
of Madlanga J at paras 215-24;
Phoebus
Apollo Aviation CC v Minister of Safety and Security
[2002]
ZACC 26
;
2003
(2) SA 34
(CC);
2003
(1) BCLR 14
(CC) at para 9; and
S v
Boesak
[2000]
ZACC 25
;
2001
(1) SA 912
(CC);
2001
(1) BCLR 36
(CC) at para 15.
[25]
Molaudzi
first
judgment above n 14. See also the Full Court judgment at paras
16-24.
[26]
Mpofu
above n 22
at para 14, referencing
Evins v Shield
Insurance Co Ltd
1980 (2) SA 814
(A)
at 835F-G.
[27]
Baphalane
above
n 18 at para 31 referring to
National
Sorghum
above n 18 at para 2.
[28]
Mpofu
above n 22
at para 14.
[29]
Id at paras 13-4. In this case the
applicant had already made application for leave to appeal twice to
this Court regarding
the sentence imposed on him by the High Court.
He only raised a constitutional issue in his third application
to this Court.
In the first two applications this Court
stated, in short reasons, that it was “not in the interests of
justice”
to hear the matters.
[30]
Id.
[31]
Boshoff v Union Government
1932 TPD 345.
[32]
See also
Hyprop
Investments Ltd and Others v NSC Carriers and Forwarding CC and
Others
[2013] ZASCA 169
;
2014 (5) SA
406
at para 14 and
Kommissaris van
Binnelandse Inkomste v Absa Bank Bpk
[1994] ZASCA 19
;
1995 (1) SA 653
(A) (
Kommissaris
)
at 669F-H.
[33]
Kommissaris
id.
[34]
Id.
[35]
Smith v Porritt and Others
[2007]
ZASCA 19
;
2008 (6) SA 303
(SCA) at para 10.
[36]
Bafokeng Tribe
above
n 22 at 566E-F.
[37]
Amtim Capital Inc v Appliance Recycling
Centres of America
2014 ONCA 62.
[38]
Id at para 13. See also
Danyluk
v Ainsworth Technologies Inc
2001 SCC
44
; [2001] 2 SCR at paras 80-1 where the Supreme Court of Canada, in
evaluating whether the application of the doctrine would cause
potential injustice, held:
“
As
a final and most important factor, the Court should stand back and,
taking into account the entirety of the circumstances,
consider
whether application of issue estoppel in the particular case would
work an injustice. Rosenberg JA concluded that
the appellant
had received neither notice of the respondent’s allegation nor
an opportunity to respond. He was thus
confronted with the
problem identified by Jackson JA, dissenting, in
Iron
v Saskatchewan (Minister of the Environment & Public Safety)
[1993] 6 WWR 1
(Sask CA) at 21:
‘
the
doctrine of
res
judicata
, being a
means of doing justice between the parties in the context of the
adversarial system, carries within its tenets the seeds
of
injustice, particularly in relation to issues of allowing parties to
be heard.’
. . .
On
considering the cumulative effect of the foregoing factors it is my
view that the Court in its discretion should refuse to
apply issue
estoppel in this case.”
This was confirmed
by the Canadian Supreme Court in
Penner
v Niagara (Regional Police Services Board)
2013
SCC 19
;
[2013] 2 SCR 125
at, for example, paras 36-9.
[39]
Amtim Capital Inc
id at para 14.
[40]
Rule 73(1) of the Rules of the Supreme Court of
Canada provides:
“
There shall
be no reconsideration of an application for leave to appeal unless
there are exceedingly rare circumstances in the
case that warrant
consideration by the Court.”
[41]
A distinction is made between “cause of
action estoppel” and “issue estoppel”. In
the first case—
“
the
cause of action in the later proceedings is identical to that in the
earlier proceedings, the latter having been between the
same parties
or their privies and having involved the same subject matter.”
(
Arnold v National Westminster Bank
[1991] 2 AC 93
(HL) at 104.)
In
the second case—
“
a
particular issue forming a necessary ingredient in a cause of action
has been litigated and decided and in subsequent proceedings
between
the same parties involving a different cause of action to which the
same issue is relevant one of the parties seeks to
re-open that
issue.” (
Arnold
at
105.)
[42]
In re Pinochet
[1999]
UKHL 1
(
Pinochet
).
[43]
Taylor v Lawrence
[2003] QB 528.
[44]
Rule 52.17 provides:
“
(1)
The Court of Appeal or the High Court will not reopen a final
determination
of any appeal unless—
(a)
it is necessary to do so in order to avoid real injustice;
(b)
the circumstances are exceptional and make it appropriate to reopen
the appeal; and
(c)
there is no alternative effective remedy.
(2)
In paragraphs (1), (3), (4) and (6), ‘appeal’ includes
an application for permission to appeal.”
[45]
See, for example,
Vignes
s/o Mourthi v Public Prosecutor (No 3)
[2004]
4 LRC 30 at 32-4 where the Singapore Court of Appeal confirmed the
finding in
Abdullah bin A Rahman v
Public Prosecutor
[1994] 3 SLR 129
at
132H, that there is no statutory mechanism which provided the Court
of Appeal with jurisdiction or power to reopen a case
after the
disposal of an appeal. The Court held at 133G that “Parliament
has not defined the function of the [Court
of Appeal] so as to
maintain continuous supervision over convicted persons or to act
after the event because of a change in circumstance”.
The Court did not find an inherent jurisdiction to intervene in
these circumstances.
[46]
In
Wee Soon Kim
Anthony v Law Society of Singapore
[2001]
4 SLR 25
, the Singapore Court of Appeal considered itself to have an
inherent jurisdiction, outside of its statutory one, which must be
exercised judiciously. The Court found that the inherent
jurisdiction may be invoked when it would be just and equitable
to
do so “to prevent improper vexation or oppression and to do
justice between the parties”. In
Roberto
Building Material Pte Ltd and Others v Oversea-Chinese Banking Corp
Ltd and Another
[2003] 2 SLR 353
at
para 17 the Court of Appeal held that the Court’s inherent
jurisdiction may only be invoked in “exceptional circumstances
where there is a clear need for it and the justice of the case so
demands”.
[47]
Yihan “The Jurisdiction to Reopen Criminal
Cases: A Consideration of the (Criminal) Statutory and Inherent
Jurisdiction
of the Singapore Court of Appeal” (2008)
Singapore Journal of Legal Studies
395
at 410.
[48]
Constitution of India, 1950.
[49]
Choudhury “Review Jurisdiction of Supreme
Court of India: Article 137”
Social
Science Research Network
(4 April
2012), available at
http://dx.doi.org/10.2139/ssrn.2169967
.
[50]
A T Sharma v A P Sharma
AIR
1979 SC 1047.
In this case the Supreme Court held:
“
It
is true there is nothing in article 226 of the Constitution to
preclude the High Court from exercising the power of review
which
inheres in every Court of plenary jurisdiction to prevent
miscarriage of justice or to correct grave and palpable errors
committed by it. But, there are definitive limits to the
exercise of the power of review. The power of review may
be
exercised on the discovery of new and important matter or evidence
which, after the exercise of due diligence was not within
the
knowledge of the person seeking the review or could not be produced
by him at the time when the order was made; it may be
exercised
where some mistake or error apparent on the face of the record is
found; it may also be exercised on any analogous
ground. But,
it may not be exercised on the ground that the decision was
erroneous on merits.”
[51]
M/s Northern Indian Caterers (India) Ltd v Lt
Governor of Delhi
AIR
1980 SC 674.
[52]
The Indian Supreme Court in
M
S Ahlawat v State of Haryana and Another
1999 Supp (4) SCR 160.
[53]
Mukaddam v Pioneer Foods (Pty) Ltd and Others
[2013] ZACC 23
;
2013 (5) SA 89
(CC);
2013 (10) BCLR 1135
(CC) at
para 32.
[54]
Id at para 34.
[55]
Children’s Institute v Presiding
Officer, Children’s Court, Krugersdorp and Others
[2012] ZACC 25
;
2013 (2) SA 620
(CC);
2013 (1) BCLR 1
(CC) at para
17, in the context of allowing
amici
to adduce evidence.
[56]
Children’s Resource Centre Trust and
Others v Pioneer Foods (Pty) Ltd and Others
[2012]
ZASCA 182
;
2013
(2) SA 213
(SCA) at para 15.
[57]
Mukaddam
above n
53 at para 37.
[58]
Id.
[59]
Id at para 39.
[60]
Oosthuizen v Road Accident Fund
[2011] ZASCA 118
;
2011 (6) SA 31
(SCA) at para 26 and
Children’s
Institute
above n 55 at para 35-8.
In the latter case, this Court distinguished between the right of an
amici
to
adduce evidence, which was a procedural right and therefore within
the bounds of section 173, and the right of an accused to
by-pass
prescription of a claim, which this Court held to constitute a
substantive right and thus could not be granted to a party
in terms
of this section.
[61]
Oosthuizen
id at
para 20.
[62]
South African Broadcasting Corp Ltd v National
Director of Public Prosecutions and Others
[2006] ZACC 15
;
2007 (1) SA 523
(CC);
2007 (2) BCLR 167
(CC) at para
90.
[63]
Oosthuizen
above
n 60 at para 19.
[64]
See id at para 27, where the Supreme Court of
Appeal found that the exercise of inherent jurisdiction to create
new rights would
open the door to uncertainty and potential chaos.
[65]
Id at para 17. See also
National
Union of Metalworkers of SA and Others v Fry’s Metal (Pty) Ltd
[2005] ZASCA 39
;
2005
(5) SA 433
(SCA) at para 40, citing
Moch
v Nedtravel (Pty) Ltd t/a American Express Travel Service
[1996]
ZASCA 2;
1996
(3) SA 1
(A) at 7F.
[66]
Rule 29 provides that select rules of the Uniform
Rules of Court will apply to the proceedings in this Court,
including rule 42.
Rule 42 of the Uniform Rules of Court
provides:
“
(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;
(b)
An order or judgment in which there is an ambiguity, or a patent
error or omission, but only to the extent of such ambiguity, error
or omission;
(c)
An order or judgment granted as the result of a mistake common to
the parties.
(2)
Any party desiring any relief under this rule shall make application
therefor upon notice to all parties whose interests may be affected
by any variation sought.
(3)
The court shall not make any order rescinding or varying any order
or judgment unless satisfied that all parties whose interests may be
affected have notice of the order proposed.
On the extent of this
power, see
Glenister v President of the Republic of South Africa
and Others
[2013] ZACC 20
;
2013 (11) BCLR 1246
(CC) at para 6.
[67]
Zondi v MEC, Traditional and Local Government
Affairs and Others
[2005] ZACC 18
;
2006 (3) SA 1
(CC);
2006 (3) BCLR 423
(CC) at paras 28-36,
confirming the exceptions to the doctrine in
Firestone
South Africa (Pty) Ltd v Genticuro AG
1977 (4) SA 298
(A) at 306H-7G. The doctrine of
functus
officio
dictates that, generally, a
judge has no authority to amend his or her own final order; while
the doctrine of
res judicata
provides
that a matter finally determined cannot be revisited. The
rationale for both doctrines being, the public interest
in bringing
litigation to finality.
[68]
Daniel v President of the Republic of South
Africa and Another
[2013] ZACC 24
;
2013 (11) BCLR 1241
(CC) at para 6. The Court ultimately found
that there was no error and therefore declined to grant the relief
sought.
However, it did not find that the grounds upon which
the rescission was sought were invalid.
[69]
Baphalane
above
n 18.
[70]
Ka Mtuze
above n
22 at para 18.
[71]
Id. The Court also reiterated the
importance of the
functus officio
doctrine and the value of not revisiting previous decisions except
to vary or rescind in terms of the Rules:
“
This
is because it would be untenable if a court were free to reconsider
and change its decisions as it pleases and if parties
to disputes do
not have the finality necessary for them to arrange their affairs
appropriately.”
[72]
Id at para 19.
[73]
See
Paulsen and
Another v Slip Knot Investments 777 (Pty) Limited
[2015] ZACC 5
(
Paulsen
)
at para 116. This Court held:
“
It
is well within the place of courts to shape the common law in a way
that advances constitutional values. The authority
imposed
upon courts by section 39(2) of the Constitution is thus extensive,
requiring courts to be alert to the normative framework
of the
Constitution not only when some startling new development of the
common law is in issue, but in all cases where the incremental
development of the rule is in issue.”
See also
K
v Minister of
Safety
and Security
[2005]
ZACC 8
;
2005
(6) SA 419
(CC);
2005
(9) BCLR 835
(CC) at para 17
and
Fourie and Another v Minister of
Home Affairs and Others
[2004]
ZASCA 132
;
2005
(3) SA 429
(SCA);
2005
(3) BCLR 241
(SCA) at paras
39-40.
[74]
Paulsen
id,
relying on
Carmichele v Minister of
Safety and Security
[2001]
ZACC 22
;
2001
(4) SA 938
(CC);
2001
(10) BCLR 995
(CC) at para 39.
[75]
Mkontwana v Nelson Mandela Metropolitan
Municipality and Another; Bissett v Buffalo City Municipality and
Others; Transfer Rights
Action Campaign and Others v MEC, Local
Government and Housing, Gauteng and Others
[2004]
ZACC 9; 2005 (1) SA 530 (CC); 2005 (2) BCLR (CC).
[76]
Everfresh Market Virginia (Pty) Ltd v Shoprite
Checkers (Pty) Ltd
[2011] ZACC 30
;
2012 (1) SA 256
(CC);
2012 (3) BCLR 219
(CC) at paras 30-4 and
Carmichele
above
n 74 at paras 39-40.
[77]
Mpofu
above n 22
at para 15. While the majority of the Court in that case did
not grant the applicant leave to appeal, it did
not reject the
principle of relaxing
res judicata
in exceptional circumstances. The majority ruled on the matter
based on the prospects of success and the failure of the
accused to
establish the factual framework to support his claim.
[78]
Mhlongo
above n
16.
[79]
Rule 29 of this Court’s Rules incorporates
rule 42(1) of the Uniform Rules of Court.
[80]
Mhlongo
above n
16 at paras 41-3.
[81]
Id at paras 38, 41 and 44.
[82]
Trial court judgment at 46:
“
Now
as I have already stated the evidence of the State in this matter is
mainly based on the statements that were made by the
accused to the
magistrate and the pointing out.”
Later
at 69, the trial court reiterates that “the State’s
evidence is dependent on the statements that have been admitted
which are not confession statements”. In the trial
court’s critical evaluation of the evidence against the
accused at 68-76, the evaluation appears to depend almost
exclusively on the extra-curial statements of the co accused.
However, in the Full Court judgment at para 40, the Court only
states that
part
of the evidence upon which Mr Mhlongo, Mr
Nkosi and Mr Molaudzi were convicted, are the extra-curial
statements of Mr Matjeke,
Mr Makhubela and Mr Khanye.
However, this does not accord with the emphasis of the trial court
judgment.
[83]
Mr Matjeke first testified that Mr Molaudzi’s
name had been given to him by the police (trial court judgment at
63).
Then, in his second in-court testimony (which was
drastically different from his previous statements), he and Mr
Makhubela (who
testified straight after this amended version came to
light) both testified that Mr Molaudzi was one of the men who
went
inside the deceased’s premises during the shooting (at
61-3 and 65, respectively). The trial court dismissed Mr
Molaudzi’s
alibi as “convenient” (trial court
judgment at 73) and the Full Court found that it could not be
reasonably possibly
true (Full Court judgment at para 38).
[84]
Mhlongo
above n
16. This Court held at para 42:
“
The
remainder of the evidence consisted of the oral testimony by two of
the applicants’ co accused, Mr Matjeke and
Mr Makhubela.
Having regard to the cautionary rule, the evidence should have been
corroborated by independent evidence.
This is due to the fact
that both the trial court and the Full Court were of the view that
their testimony was inconsistent
with their extra-curial statements
and previous oral evidence. In addition, the trial court did
not believe large portions
of their evidence and concluded that they
were unreliable witnesses. Both sets of testimony were treated
with caution but
instead of corroborating these versions with
independent evidence, they were used to corroborate each other.
The Full Court’s
conclusion that, because the various
inconsistent versions confirmed each other in certain respects, this
constituted sufficient
evidence to implicate the applicants, must be
rejected.” (Footnotes omitted.)