RELAXATION OF RES JUDICATA DOCTRINE

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

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 party — Circumstances have to be wholly exceptional to justify departure from res judicata doctrine — No effective alternative remedy — Second appeal entertained.

The applicant was convicted in a High Court of a number of offences and was 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 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. 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 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.

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.
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 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.
Held, further, that the present case demonstrated exceptional circumstances that 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. Leave to appeal was accordingly granted and the convictions and sentences were set aside.

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