Article by Ndivhuwo Ishmel Moleya
It is widely accepted that there is no such thing as a perfect justice system. Court decisions are not entirely faultless, just as judges are not infallible. For this reason, the law has put procedural filtering mechanisms in place, such as: Reviews, appeals, condonation for late filing of appeals and/or reviews, all of which are designed to guard against the miscarriage of justice. However, there are instances in which these mechanisms may prove to be inadequate – where more is required. It is in such circumstances, in which a court of final instance, may be required to reopen its final decision for reconsideration. Rule 42 of the Uniform rules of Court (Uniform Rules) provides for instances in which a court may reconsider its final decision. But, as will be demonstrated in this article, this does not cater for all cases that may result in injustice. The case of Molaudzi v S 2015 (8) BCLR 904 (CC) is proof of this fact. This article analyses this decision and the seemingly unnoticed, but fundamental positives, it brought forth.
Powers of the CC to reopen its final decisions before the Molaudzi case
The jurisprudence of the Constitutional Court (CC) on its powers to reconsider its final decisions is borrowed from that of the then Appellate Division. The Appellate Division followed the well-known principle that once a court delivers a final judgment it becomes functus officio and is divested of the jurisdiction to reconsider the decision subject to few exceptions relating to accessory or consequential matters. The principle first came under judicial microscope in the case of West Rand Estates Ltd v New Zealand Insurance Co Ltd 1926 AD 173, where the court stated that a judge is divested of the power to amend his final judgment subject to certain exceptions. The principle was reiterated in the case of Estate Garlick v Commissioner for Inland Revenue 1934 AD 499 at 503 – 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 has duly pronounced a final judgment or order, it has itself no authority to correct, alter, or supplement it’ subject to certain exceptions.
In Zondi v MEC, Traditional and Local Government Affairs, and Others 2006 (3) SA 1 (CC), the CC found the approach followed in the above cases to be ‘consistent with the Constitution’.
Rule 42 of the Uniform Rules permits a court to rescind or vary its order or judgment –
- if it was erroneously sought or granted;
- 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 and Another 2013 (11) BCLR 1241 (CC), the CC stated that ‘[t]he general principle is that once a court has duly pronounced a final order, it becomes functus officio and has no power to alter 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 consequential matters. Similarly, r 42 appears to follow the same route, albeit in a straitjacketed manner. Accordingly, this approach does not permit the court to correct any injustice that would occur as a result of an error, which falls outside r 42. It is thus an untenable position that prompted the question whether the court may, under special circumstances, reconsider its final decision based on grounds outside the strictures of r 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.
The case of Molaudzi and its impact on the CC’s power to reconsider its final decision
The case of Molaudzi brought an end to a spell of uncertainty about whether the court may reopen its final decision on grounds outside of r 42. The facts of the case are as follows: Mr Molaudzi, together with seven other co-accused, were convicted of murder, robbery with aggravating circumstances, attempted robbery, unlawful possession of firearms and unlawful possession of ammunition. They were each sentenced to life imprisonment for murder, 15 years’ imprisonment for robbery and three years’ imprisonment in respect of each of the other charges. Dissatisfied with both the conviction and sentence, Mr Molaudzi applied for leave to appeal to the CC in 2013. This, he did without legal representation. The court dismissed the application on the ground that it did not raise proper constitutional issues 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 their convictions and sentences in Mhlongo v S; Nkosi v S 2015 (8) BCLR 887 (CC). They challenged the constitutional validity of the differentiation between the admissibility of admissions and confessions of an accused person against their co-accused in a criminal trial. They argued that there is no logical basis in accepting evidence in the form of an admission of an accused person against their co-accused and not confessions since both have the same effect of self-incrimination. They argued that the differentiation is ‘unjustifiable, rigid and arbitrary’ and violates s 9(1) of the Constitution. The court upheld the argument. It found that the differentiation could not be lawfully sustained as it is not designed to achieve any legitimate purpose. It further found that the distinction was not justifiable. It accordingly held that extra-curial admissions are, like confessions, inadmissible against co-accused persons. The court upheld the appeal, overturned their convictions and sentences and ordered their release from prison.
Mr Molaudzi filed a second appeal and raised the same arguments as those of Mr Mhlongo and Mr Nkosi. There were two questions for determination, one of merits and another of procedure. The former had already been decided in the Nkosi case. The fundamental issue was whether the court could consider Mr Molaudzi’s application for the second time. This raised the question of whether the second application was res judicata. If answered in the affirmative, Mr Molaudzi would have been barred from having a second bite at the cherry. To surmount this hurdle, Mr Molaudzi argued that the application raised issues that were different from those raised in the first application. He argued that while the first application attacked pure factual findings of the lower court, the second application was mounted on pure constitutional grounds.
The CC pointed out that the underlying rationale of the doctrine of res judicata was to give effect to finality of judgments. It further stated that the second application ought to be considered res judicata as the merits of Mr Molaudzi’s appeal were considered by the CC and ruled on before. However, the court found that as a common law principle, the doctrine of res judicata may be developed or relaxed in the interests of justice. It pointed out that in doing so, a delicate balance must be struck between the need to ensure certainty and finality in litigation on the one hand, and the need to vindicate constitutional rights of the vulnerable and unrepresented on the other. Most importantly, the court stated that where injustice would otherwise occasion, the court should be permitted to reconsider its final decisions on grounds outside r 42. It, however, cautioned that this must only be done in exceptional circumstances. In the end, the court found that a grave injustice would have been prompted if the appeal was dismissed on the basis of res judicata and that it was, therefore, necessary to relax the doctrine to avert injustice.
The case of Molaudzi is lauded for declaring the distinction between the admissibility of admissions and confessions against co-accused unconstitutional. Little has been said about its invaluable clarification of the nearly decade old question of whether the CC has the power to reopen its final decisions based on grounds outside r 42. But, it does more than just that. It provides principled guidelines on how the court should – going forward – reopen finalised decisions on grounds outside r 42. This case stands as a beacon of change in the court’s approach to reconsider cases. The case fostered a jurisprudential shift from an approach that seemed to unnecessarily venerate the principle of finality of judgments, to an approach that champions the attainment of justice. The approach allows the court greater latitude in the pursuit of justice and ensures that the attainment of justice is not sacrificed at the altar of rigid compliance with adjectival law. The approach allows the court the necessary leeway to actively discharge its mandate as the ultimate dispenser of justice and custodian of the Constitution. This approach rightly acknowledges that there may be other compelling exceptional circumstances outside r 42 warranting the reopening of a finalised case.
The need to ensure finality of judgments argument
Reopening a concluded case without doubt upsets the principle of finality of judgments. To simply allow appellate courts to reopen concluded cases may lead to endless litigation and cause uncertainty in law. This may also unnecessarily inundate the court’s roll with unmeritorious and frivolous applications, which may result in an abuse of court process. However, there are also equally important considerations in favour of reopening concluded cases. There is no doubt that unwavering protection of the principle of finality of judgments may result in denial of justice to deserving litigants who, for some reason, may not have been able to put their cases properly in the first instance. Further, the public may lose confidence in a judicial system that seeks to sanctify decisions.
What is, therefore, required is an approach that strikes a delicate balance between these equally important considerations. An approach that confines the court’s powers to reopen its final decisions to the few instances adumbrated in r 42 undoubtedly fails to strike this happy balance. This is so because injustice comes in different forms and the circumstances that may cause it cannot be exhaustively enumerated. Such an approach steadfastly protects the principle of finality of judgments, paying little regard to the fact that there may be other circumstances that can give rise to injustice residing outside of the strictures of r 42. The principle of finality of judgments cannot be advanced to deny justice to deserving litigants. Indeed, rules of practice ‘should be used to assist, and not to hamper, an appellate court to do justice to the case before it’ (see Bernert v Absa Bank Ltd 2011 (3) SA 92 (CC)).
As once stated, ‘[j]ustice is a virtue which transcends all barriers’ and ‘[n]either the rules of procedure nor technicalities of law can stand in its way’ (see S. Nagaraj and Others vs. State of Karnataka and Another 1993 Supp (4) SCC 595). It is, therefore, worth celebrating that the case of Molaudzi ushered in an approach, which places judicial premium on the attainment of justice as the ultimate purpose of law. The approach undoubtedly resonates with the spirit of our Constitution, which commands justice, respect and protection of fundamental human rights.