CCT42/15

[2015] ZACC 20

2015 (8) BCLR 904 (CC)

2015 (2) SACR 341 (CC)

Theron AJ

25 June 2015

http://hdl.handle.net/20.500.12144/3807

See earlier related judgment of the CC: Molaudzi v S (CCT 126/13) [2014] ZACC 15; 2014 (7) BCLR 785 (CC) (20 May 2014).

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. Application for leave to appeal against an order of the Full Court of the High Court, North-West Division, Mahikeng concerning res judicata (cases disposed of cannot be reopened) and the Constitutional Court’s power to reconsider its previous final order in the case of an unrepresented applicant in exceptional circumstances. The Court found that because an earlier application filed by the applicant had not raised substantive constitutional challenges, the current application was subject to res judicata as the Court had already made a final judgment on its merits. However, the Court had the power in terms of sections 173 and 39(2) of the Constitution to develop the common law doctrine of res judicata and to relax its application in exceptional circumstances. The Court held grave injustice would ensue if the applicant were not afforded the same relief granted in Mhlongo v S; Nkosi v S CCT 148/14 and CCT 149/14 in circumstances where he was similarly situated, and merely failed to raise the constitutional arguments the current application set out because he was previously unrepresented. These exceptional circumstances called for a remedy. In the result, applying Mhlongo, the appeal was upheld and the applicant’s convictions and sentences were set aside. Judgment: Theron AJ (unanimous).