Publication

DE REBUS

Page

26-27

Date

Mon 01 Jan 2018

AVE (ZAR)

66306.72

Reconsideringfinaljudgments-the injusticeinjustice

t is widely accepted that there is no such thing as a perfectjustice system. Court decisions are not entirely faultless,just as judges are not infallible. For this reason, the lawhas put procedural filtering mechanisms in place, such as:Reviews, appeals, condonation for late filing of appealsand/or reviews, all of which are designed to guard againstthe miscarriage of justice. However, there are instances

in which these mechanisms may prove to be inadequate - wheremore is required. It is in such circumstances, in which a court of fi-nal instance, may be required to reopen its final decision for recon-sideration. Rule 42 of the Uniform rules of Court (Uniform Rules)provides for instances in which a court may reconsider its finaldecision. But, as will be demonstrated in this article, this does notcater for all cases that may result in injustice. The case of Molaudzi

v $ 2015 (8) BCLR 904 (CC) is proof of this fact. Thisarticle analyses this decision and the seemingly unno-ticed, but fundamental positives, it brought forth.

ByNdivhuwoIshmelMoleya

Powers of the CC to reopen its finaldecisions before the Molaudzi caseThe jurisprudence of the Constitutional Court (CC)on its powers to reconsider its final decisions is bor-rowed from that of the then Appellate Division. TheAppellate Division followed the well-known principlethat once a court delivers a final judgment it becomesfunctus officio and is divested of the jurisdiction toreconsider the decision subject to few exceptionsrelating to accessor y or consequential matters. Theprinciple first came under judicial microscope in thecase of West Rand Estates Ltd v New Zealand Insur-ance Co Ltd 1926 AD 173, where the court stated thata judge is divested of the power to amend his finaljudgment subject to certain exceptions. The princi-ple was reiterated in the case of Estate Garlick vCommissioner for Inland Revenue 1934 AD 499 at503 - 4. Similarly , in Firestone South Africa (Pty)Ltd v Genticuro AG 1977 (4) SA 298 (A) at 306F-G, the court pointed out that 'once a court hasduly pronounced a final judgment or order, ithas itself no authority to correct, alter, or sup-plement it' subject to certain exceptions.

In Zondi v MEC, Traditional and Local Govern-ment Affairs, and Others 2006 (3) SA 1 (CC), the

CC found the approach followed in the above cases to be 'consistent withthe Constitution'.

Rule 42 of the Uniform Rules permits a court to rescind or vary its order orjudgment -e if it was erroneously sought or granted;e if the order is granted as a result of a mistake; and* where the order or judgment has ambiguities, patent errors or omissions.

This rule also applies to the CC. In Daniel v President of the Republic of South Africa andAnother 2013 (11) BCLR 1241 (CC), the CC stated that '[tJhe general principle is that oncea court has duly pronounced a final order, it becomes functus officio and has no power toalter the order' but that 'rule 42 of the Uniform Rules creates exceptions to this principle.'

It is notable that the exceptions developed in case law relate to incidental or con-sequential matters. Similarly, r 42 appears to follow the same route, albeit in a strait-jacketed manner. Accordingly, this approach does not permit the court to correct anyinjustice that would occur as a result of an error, which falls outside r 42. It is thus anuntenable position that prompted the question whether the court may, under specialcircumstances, reconsider its final decision based on grounds outside the strictures ofr 42 (see Minister for Justice and Constitutional Development v Chonco and Others 2010(7) BCLR 629 (CC)). The question was left undecided in several decisions of the CC.

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The case of Molaudzi andits impact on the CC'spower to reconsider itsfinal decisionThe case of Molaudzi brought an endto a spell of uncer tainty about whetherthe court may reopen its final decisionon grounds outside of r 42. The facts ofthe case are as follows: Mr Molaudzi, to-gether with seven other co-accused, wereconvicted of murder, robbery with aggra-vating circumstances, attempted robbery,unlawful possession of firearms and un-lawful possession of ammunition. Theywere each sentenced to life imprisonmentfor murder, 15 years' imprisonment forrobbery and three years' imprisonmentin respect of each of the other charges.Dissatisfied with both the conviction andsentence, Mr Molaudzi applied for leaveto appeal to the CC in 2013. This, he didwithout legal representation. The courtdismissed the application on the groundthat it did not raise proper constitutionalissues and had no prospects of success(see Molaudzi v S 2014 (7) BCLR 785 (CC)at para 2).

A year later, two of Mr Molaudzi's co-accused appealed to the CC against theirconvictions and sentences in Mhlongo v$; Nkosi v $ 2015 (8)BCLR 887 (CC). Theychallenged the constitutional validity ofthe differentiation between the admissi-bility of admissions and confessions ofan accused person against their co-ac-cused in a criminal trial. They argued thatthere is no logical basis in accepting evi-dence in the form of an admission of anaccused person against their co-accusedand not confessions since both have thesame effect of self-incrimination. Theyargued that the differentiation is 'unjus-tifiable, rigid and arbitrary' and violates s9(1) of the Constitution. The court upheldthe argument. It found that the differen-tiation could not be lawfully sustained asit is not designed to achieve any legiti-mate purpose. It further found that thedistinction was not justifiable. It accord-ingly held that extra-curial admissionsare, like confessions, inadmissible againstco-accused persons. The court upheld theappeal, overturned their convictions andsentences and ordered their release fromprison.

Mr Molaudzi filed a second appeal andraised the same arguments as those ofMr Mhlongo and Mr Nkosi. There weretwo questions for determination, one ofmerits and another of procedure. Theformer had already been decided in theNkosi case. The fundamental issue waswhether the court could consider Mr Mo-laudzi's application for the second time.This raised the question of whether thesecond application was res judicata. Ifanswered in the affirmative, Mr Molaudziwould have been barred from having asecond bite at the cherry. To surmount

FEATURE - CONSTITUTIONAL LAW

this hurdle, Mr Molaudzi argued thatthe application raised issues that weredifferent from those raised in the firstapplication. He argued that while thefirst application attacked pure factualfindings of the lower court, the secondapplication was mounted on pure consti-tutional grounds.

The CC pointed out that the underly-ing rationale of the doctrine of res judi-cata was to give effect to finality of judg-ments. It further stated that the secondapplication ought to be considered resjudicata as the merits of Mr Molaudzi' sappeal were considered by the CC andruled on before. However, the courtfound that as a common law principle,the doctrine of res judicata may be de-veloped or relaxed in the interests ofjustice. It pointed out that in doing so, adelicate balance must be struck betweenthe need to ensure certainty and final-ity in litigation on the one hand, and theneed to vindicate constitutional rights ofthe vulnerable and unrepresented on theother. Most importantly, the court statedthat where injustice would otherwise oc-casion, the court should be permitted toreconsider its final decisions on groundsoutside r 42. It, however, cautioned thatthis must only be done in exceptional cir-cumstances. In the end, the court foundthat a grave injustice would have beenprompted if the appeal was dismissedon the basis of res judicata and that itwas, therefore, necessary to relax thedoctrine to avert injustice.

The case of Molaudzi is lauded fordeclaring the distinction between theadmissibility of admissions and con-fessions against co-accused unconsti-tutional. Little has been said about itsinvaluable clarification of the nearlydecade old question of whether the CChas the power to reopen its final deci-sions based on grounds outside r 42.But, it does more than just that. It pro-vides principled guidelines on how thecourt should - going forward - reopenfinalised decisions on grounds outsider 42. This case stands as a beacon ofchange in the court's approach to recon-sider cases. The case fostered a juris-prudential shift from an approach thatseemed to unnecessarily venerate theprinciple of finality of judgments, toan approach that champions the attain-ment of justice. The approach allows thecourt greater latitude in the pursuit ofjustice and ensures that the attainmentof justice is not sacrificed at the altar ofrigid compliance with adjectival law. Theapproach allows the court the necessaryleeway to actively discharge its mandateas the ultimate dispenser of justice andcustodian of the Constitution. This ap-proach rightly acknowledges that theremay be other compelling exceptional cir-cumstances outside r 42 warranting thereopening of a finalised case.

The need to ensure finalityof judgments argumentReopening a concluded case withoutdoubt upsets the principle of finality ofjudgments. To simply allow appellatecourts to reopen concluded cases maylead to endless litigation and cause un-certainty in law. This may also unneces-sarily inundate the court's roll with un-meritorious and frivolous applications,which may result in an abuse of courtprocess. However, there are also equallyimportant considerations in favour ofreopening concluded cases. There is nodoubt that unwavering protection of theprinciple of finality of judgments mayresult in denial of justice to deservinglitigants who, for some reason, may nothave been able to put their cases prop-erly in the first instance. Further, thepublic may lose confidence in a judicialsystem that seeks to sanctify decisions.

What is, therefore, required is an ap-proach that strikes a delicate balancebetween these equally important consid-erations. An approach that confines thecourt's powers to reopen its final deci-sions to the few instances adumbratedin r 42 undoubtedly fails to strike thishappy balance. This is so because injus-tice comes in different forms and thecircumstances that may cause it cannotbe exhaustiv ely enumerated. Such an ap-proach steadfastly protects the principleof finality of judgments, paying little re-gard to the fact that there may be othercircumstances that can give rise to in-justice residing outside of the stricturesof r 42. The principle of finality of judg-ments cannot be advanced to deny jus-tice to deserving litigants. Indeed, rulesof practice 'should be used to assist, andnot to hamper, an appellate court to dojustice to the case before it' (see Bernertv Absa Bank Ltd 2011 (3) SA 92 (CC)).

ConclusionAs once stated, '[jJustice is a virtue whichtranscends all barriers' and 'InJeither therules of procedure nor technicalities oflaw can stand in its way' (see S. Naga-raj and Others vs. State of Karnatakaand Another 1993 Supp (4) SCC 595). Itis, therefore, worth celebrating that thecase of Molaudzi ushered in an approach,which places judicial premium on the at-tainment of justice as the ultimate pur-pose of law. The approach undoubtedlyresonates with the spirit of our Consti-tution, which commands justice, respectand protection of fundamental humanrights.

Ndivhuwo Ishmel Moleya LLB (Uni-versity of Venda) is a candidate at-torney at Adams & Adams in Preto-ria. D

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