Academic journal article Strategic Review for Southern Africa

The Doctrine of Res Judicata Revisited: Molaudzi V the State

Academic journal article Strategic Review for Southern Africa

The Doctrine of Res Judicata Revisited: Molaudzi V the State

Article excerpt

1. Background

On 25 June 2015, the Constitutional Court of South Africa delivered judgment in the matter of Molaudzi v The State, in which it relaxed the doctrine of res judicata in the interests of justice to allow a prisoner who had already exhausted the criminal appeal system to advance his case. This enquiry called for the court to look into the application of section 173 and 39(2) of the Constitution of South Africa (1996). In short the main question which had to be addressed by the court was: "under what circumstances can the court revisit final judgments in criminal cases?".

Before the Constitutional Court, the applicant, Thembekile Molaudzi sought leave to appeal against his convictions and sentences as imposed by the North West High Court sitting at Mafikeng and confirmed on appeal by the Full Court (Molaudzi para 1). The matter emanated from the events of 3 August 2002 where Warrant Officer Johannes Dingaan Makuna, a member of the South African Police Service (SAPS), was fatally shot at his home. It was alleged that Molaudzi was part of a group of men who carried out the shooting and had also planned to steal his bakkie (Molaudzi para 2).

Molaudzi together with seven other accused stood trial before a single judge in the High Court. His co-accused Boswell Mhlongo (accused 2) and Alfred Nkosi (accused 4) were also applicants before the Constitutional Court in similar combined cases (Mhlongo v S; Nkosi v S). Mhlongo and Nkosi were charged with murder (count one), robbery with aggravating circumstances (count two), attempted robbery (count three), unlawful possession of firearms (count four) and unlawful possession of ammunition (count five). 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 17 of 1956 (Molaudzi para 3).

The trial court found that the accused had a common purpose to murder and rob the deceased and convicted them on four of the five counts. On 22 July 2004, they were sentenced to life imprisonment for the robbery; and three years' imprisonment in respect of each of the two remaining charges relating to the possession of the firearms and ammunition. The sentences 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 (Molaudzi para 5).

1.1 Proceedings before the Full Court and Supreme Court of Appeal

The accused appealed against their convictions and sentences to the Full Court. The appeal was largely grounded on the admissibility of the extra-curial statements. The appeal was dismissed, among other reasons, on the ground that the hearsay evidence of Thabo Matjeke (accused 1) and George Makhubela (accused 3), which was relied on to convict Molaudzi became 'automatically admissible', because the accused listed above confirmed portions of the statements in their oral testimony (Molaudzi para 6).

The Full Court found that there was no reason to interfere with the sentences imposed, and a petition to the Supreme Court of Appeal (SCA) for leave to appeal was dismissed on 6 August 2013 (Molaudzi para 7).

1.2 Molaudzi's initial litigation before the Constitutional Court

In his initial litigation in Molaudzi v The State (2014), (1)) the main thrust of his application was that the trial court and the Full Court did not properly apply the principle in S v Ndhlovu and Others. In Ndhlovu, the SCA had to deal with the question whether an accused's out-of-court statements incriminating a co-accused, if disavowed at the trial, can nevertheless be used in evidence against the latter.

In the initial Constitutional Court application, Molaudzi had argued that in admitting hearsay evidence, courts must take all the factors in Section 3(1)(c) of the Evidence Amendment Act 45 of 1988 into consideration. He had further contended that the trial court mistakenly corroborated his co-accused, Matjeke's evidence with other evidence which he maintained did not implicate him; and that the evidence of Matjeke--which primarily implicated him--was unreliable (Molaudzi v The State 2014). …

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