Taking a Second Bite at the Appeal Cherry : Molaudzi v S

The principle of res judicata is well-established in our law: essentially it means that parties to a dispute have only one metaphorical "bite at the cherry". The "bite" can entail appealing through the hierarchy of courts, but once the parties have exhausted their appeals, they cannot re-litigate the same dispute. However, in the recent case of Molaudzi v S 2015 2 SACR 341 (CC) the appellant attempted to appeal to the Constitutional Court twice: the first time the application for leave to appeal was dismissed; the second time the application was granted and the appeal upheld. The appellant got a second "bite at the cherry". In Molaudzi v S the Constitutional Court developed the common law by creating an interest-of-justice exception to the principle of res judicata and – for the first time in the Constitutional Court's history – overturned one of its own judgements. In this case note I present the background of the case of Molaudzi v S, analyse the judgement, and differentiate it from another Constitutional Court case that dealt with res judicata, namely Mpofu v Minister for Justice and Constitutional Development 2013 2 SACR 407 (CC).


Introduction
In the case of Molaudzi v S 1 the Constitutional Court developed the common law by creating an exception to the principle of res judicata and -for the first time in its history -overturned one of its own judgements.This note is structured as follows: Part 2 introduces the principle of res judicata; Part 3 presents the factual background of the case; Part 4 analyses the legal argument presented to the Constitutional Court; Part 5 analyses the Constitutional Court's judgement; Part 6 compares the case of Molaudzi v S with an analogous case where the Constitutional Court was also requested to overturn one of its previous judgements, but without success; and Part 7 concludes this note with a summary of the salient points.

The principle of res judicata
Res judicata is the legal doctrine that prohibits a litigant from having a metaphorical second bite at the cherry.It bars continued litigation of the same case, on the same issues, between the same parties. 2South African law inherited the principle of res judicata from Roman Law.In the case of Bertram v Wood, 3 a case dating back to 1893, the Supreme Court of the Cape of Good Hope traced the principle of res judicata to Justinian's Digest. 4The underlying rationale of the principle of res judicata is (a) to give effect to the finality of judgements, (b) to limit needless litigation, and (c) to promote certainty. 5s judicata is usually raised as a defence in civil matters, but also applies to criminal matters. 6In the criminal law context, res judicata is related to the concepts of autrefois acquit and autrefois convict.The latter two concepts can be seen as special cases of res judicata applicable as potential defences available to an accused person against prosecution.Res judicata in the criminal law context has wider application, and can also be raised by Background In 2003, Thembekile Molaudzi, together with seven co-accused, stood trial in the then Bophuthatswana High Court on charges of murder, robbery, and some lesser offences.The outcome of this case hinged on the application of the Ndhlovu rule formulated by the Supreme Court of Appeal (SCA) a year before, in 2002. 7This rule entailed that an extra-curial admission, but not a confession, by one co-accused is admissible as evidence against another co-accused if required by the interests of justice.The interests of justice in turn required inter alia "strong corroboration in all the other evidence" of the incrimination of the co-accused. 8 However, in Mr Molaudzi's trial there was no independent corroborative evidence at all.The only evidence against Mr Molaudzi that was presented by the state was an incriminating "admission" statement made by one of the co-accused, Mr Matjeke (Accused 1), to a magistrate, and a statement by Mr Matjeke to a police officer during a pointing out excursion that was inconsistent with the statement to the magistrate.Following a trial-within-atrial, during which Mr Matjeke denied the veracity of his extra-curial statements, the trial court held that his extra-curial statements were indeed admissible as evidence against himself.On a proper application of the Ndhlovu rule, these extra-curial statements should not have been admissible as evidence against Mr Molaudzi, given the complete lack of corroborative evidence.Accordingly, as the state failed to present any admissible evidence against Mr Molaudzi, he should have been discharged at the end of the state's case. 9However, this is not what transpired.The applicant now seeks leave to this Court essentially on the basis that he was wrongly convicted.The application cannot succeed.It is based on an attack on the factual findings made in the trial court.That does not raise a proper constitutional issue for this Court to entertain.In addition, there are no reasonable prospects of success.The Full Court considered the arguments on appeal and properly rejected them.The application for leave to appeal must thus be dismissed.
With our country's apex court dismissing his application for leave to appeal, this must have appeared as the end of the road for Mr Molaudzi.However, about a month prior to the judgement in Molaudzi I there was a tectonic shift in Bloemfontein: the SCA reversed its decision in Ndhlovu in the judgement of Litako, 12 re-establishing the common law rule that no extra-curial statement by a co-accused can ever be admissible evidence against another co-accused.In his heads of argument, Mr Molaudzi's counsel relied primarily on the following dictum by the SCA in Smith v Porritt: 15 Following the decision in Boshoff v Union Government 1932 TPD 345 the ambit of the exceptio res judicata has over the years been extended by the relaxation in appropriate cases of the common-law requirements that the relief claimed and the cause of action be the same (eadem res and eadem petendi causa) in both the case in question and the earlier judgment.Where the circumstances justify the relaxation of these requirements those that remain are that the parties must be the same (idem actor) and that the same issue (eadem quastio) must arise.Broadly stated, the latter involves an enquiry whether an issue of fact or law was an essential element of the judgment on which reliance is placed.[Counsel's underlining.] Evidently, the legal issue of the constitutional tenability of the Ndhlovu rule was not an "essential element of the judgement" in Molaudzi I -on the contrary, it was not even raised or considered.Accordingly, Mr Molaudzi's counsel argued that his client's second application to the Constitutional Court was not susceptible to the exceptio res judicata.Counsel for the state was in general agreement with this argument.

The Constitutional Court's judgement in Molaudzi II
In a unanimous judgement penned by Theron AJ the Constitutional Court did not agree with counsel's argument, but reached the same outcome by developing the common law.The Constitutional Court held that although there is an analogy between causes of action in the civil context and grounds of appeal in a criminal context, the two contexts must to be treated differently.In contrast with Smith v Porrit, which dealt with civil cases, a criminal appeal must be considered res judicata once decided, irrespective of whether additional grounds of appeal may exist that can be raised in subsequent appeals.Essentially, an appellant in a criminal matter has only one bite at the appeal cherry, and must ensure that he or she raises all the relevant grounds of appeal during this single opportunity, because he or she will not be allowed a second bite at the cherry based on the existence of different grounds of appeal.As such, Mr Molaudzi's second application (at the invitation of the Constitutional Court) was held to be res judicata.consecutive appeals would "place too great a burden on the administration of justice". 16 It is important to note that the Constitutional Court differentiated criminal cases from civil cases; accordingly, the Smith v Porrit judgement remains valid in the civil context, meaning that there may be consecutive proceedings in the civil context, provided that the new proceeding is based on a point of law or a fact that was not an "essential element of the judgment" in a prior proceeding.This dichotomy raises the question: why would consecutive appeals in the criminal context be too burdensome for the administration of justice, while not consecutive civil appeals?
After finding that Mr Molaudzi's second application was res judicata, how did the Constitutional Court find a way to assist Mr Molaudzi?In brief, by inventing the new way, given the unique circumstances of Molaudzi II: Mr Molaudzi was similarly situated to Mr Mhlongu and Mr Nkosi; while these two men had already been released from prison, Mr Molaudzi remained a convicted, incarcerated "murderer" -only because of a procedural rule.Accordingly, the Constitutional Court fashioned an interests-of-justice exception to the res judicata rule: 17 In this matter, the interests of justice require this 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 are 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 a case where similarly situated accused have been granted relief.As in this case, the circumstances must be wholly exceptional to justify a departure from the res judicata doctrine.The interests of justice are the general standard, but the vital question is whether there are truly exceptional circumstances.
The Constitutional Court briefly analysed the relevant positions in the law of four comparative jurisdictions, namely Canada, the United Kingdom, India, and Singapore. 18With the exception of Singapore (in the criminal law context), all these jurisdictions recognise that res judicata is not absolute and allowed for exceptions in rare circumstances of "injustice". 19 In summary, the Constitutional Court held that Molaudzi II was res judicata, but that Molaudzi II presented truly exceptional circumstances that called for relief in the interests of justice.v S, and accordingly Mr Molaudzi was granted leave to appeal, his conviction and sentence were vitiated, and his immediate release from prison ordered.

6
The interests of justice: a comparison between

Molaudzi II and Mpofu
Concepts such as "the interests of justice" and "truly exceptional circumstances" are of course susceptible to divergent interpretations.To illustrate: Molaudzi II was not the first time that the Constitutional Court was requested to reconsider one of its previous judgements.In Mpofu v Minister for Justice and Constitutional Development 20 the applicant applied to the Constitutional Court for a third time for leave to appeal, the previous applications for leave to appeal having been dismissed.What potentially made the third application different from the previous unsuccessful applications was that the third application raised a constitutional issue for the first time -similar to Molaudzi II.However, unfortunately for the applicant in Mpofu, he failed to prove a critical factual averment on which the entire constitutional issue depended, with the result that the majority of the Constitutional Court held that no constitutional issue had been validly raised and dismissed the application.In the words of the majority, the applicant "failed to cross a preliminary hurdle". 21In contrast, the minority held that the court a quo had made a finding on the critical factual averment, hence establishing the necessary factual basis for the constitutional issue that the Constitutional Court could entertain.Given the minority's acceptance of the factual averment, it was necessary for the minority to confront the fact of the applicant's two previous unsuccessful applications for leave to appeal to the Constitutional Court in which he failed to raise the constitutional issue.In this regard, the minority held as follows: 22 But, under our Constitution, there may be scope for situations in which the res judicata principle is softened in relation to unrepresented accused persons.When unrepresented persons apply for leave to appeal, without necessarily properly knowing their rights and what arguments may be available to them, it could be unduly harsh to preclude them from subsequently applying for leave to appeal where they may have a valid point, particularly where there is a possible violation of one of their rights protected in the Bill of Rights.In contrast, the majority held as follows regarding the interests of justice in the Mpofu case: 23 Further, the interests of justice in granting Mr Mpofu's application are weakened by his failure to act timeously in bringing it.It has taken 10 years for this matter to be brought to this Court.The passage of this significant length of time has surely impacted on the possibility of establishing reliable evidence as to the facts on which Mr Mpofu's case rests.The interests of justice thus do not favour re-opening his case.
Nor has Mr Mpofu adequately explained why he brought two previous applications to this Court for leave to appeal against his sentence in which this [constitutional] issue was not raised.
Molaudzi II and Mpofu can be distinguished on at least two dimensions: in Molaudzi II there was no uncertainty about the facts on which the applicant based his constitutional challenge, while in Mpofu the application was crippled by factual uncertainty; in Molaudzi II the applicant was himself the victim of delays in the system, while in Mpofu the applicant dragged his heels in bringing the application.
Regarding an adequate explanation for not raising the constitutional issue as a ground for appeal in his previous application, it can be argued that Mr Molaudzi could have raised the issue of the constitutional tenability of the Ndhlovu rule in Molaudzi I and indeed even before that in his petition to the SCA.In fact, prior to Mr Molaudzi's petition to the SCA the Ndhlovu rule had been subject to criticism in at least two SCA judgements, 24 and the possibility of the unconstitutionality of the Ndhlovu rule had been raised in argument (but not decided) in the Constitutional Court.

Conclusion
Molaudzi II established that res judicata is not an absolute prohibition in the context of criminal appeals.In truly exceptional cases where the interests of justice so demand, an appeal can be entertained despite the fact that the appeal is res judicata.Given the facts of Molaudzi II, the interests of justice are more likely to favour the applicant in an application for leave to appeal in a case that is res judicata if persons similarly situated to the applicant have already successfully appealed to the relevant court.On the other hand, with reference to Mpofu, the interests of justice are less likely to favour the applicant if the new application raises a constitutional issue that is based on disputed facts, and the applicant has delayed for such a long time in bringing the application that the possibility of establishing reliable evidence as to the facts has been negatively impacted.
2007 3 All SA 465 (SCA) Baphalane Ba Ramokoka Community v Mphela Family; In re: Mphela Family v Haakdoornbult Boerdery CC 2011 9 BCLR 891 (CC) Bertram v Wood 1893 10 SC 177 Litako v S 2014 3 All SA 138 (SCA) Mhlongo v S; Nkosi v S 2015 2 SACR 323 (CC) Molaudzi v S 2014 7 BCLR 785 (CC) Molaudzi v S 2015 2 SACR 341 (CC) Mpofu v Minister for Justice and Constitutional Development 2013 2 SACR 407 (CC) S v Libazi 2010 2 SACR 233 (SCA) S v Mathebula 1997 1 SACR 10 (W) S v Molimi 2008 2 SACR 76 (CC) S v Ndhlovu 2002 2 SACR 325 (SCA) Smith v Porritt 2008 6 SA 303 (SCA) The SCA based its decision in Litako on constitutional considerations.Subsequent to the Litako decision, two of Mr Molaudzi's coconvicted, Boswell Mhlongo and Alfred Nkosi (Accused 2 and 4 in the trial, respectively), applied for leave to appeal to the Constitutional Court.Unlike Mr Molaudzi's application, which focused on the erroneous application of the Ndhlovu rule, Mr Mhlongo and Mr Nkosi added an additional element in their applications to the Constitutional Court, namely that the Ndhlovu rule on which the trial court and full bench purportedly relied was unconstitutional.The Constitutional Court decided to grant Mr Mhlongo and Mr Nkosi a hearing.During the hearing of Mhlongo v S; Nkosi v S,13it became apparent that the Constitutional Court was ad idem with the SCA's Litako judgement.It should also be noted that, given the Litako judgement, the state did not oppose the applications.In fact, it was counsel on behalf of the state who, during the hearing of Mhlongo v S; Nkosi v S, brought it to the Constitutional Court's attention that "Accused 5" -Mr Molaudzi -was similarly situated to Mr Mhlongo and Mr Nkosi, in that all of these persons were convicted based on extra-curial statements by their co-accused.Accordingly, the Constitutional Court invited Mr Molaudzi to also apply for leave to appeal.At that stage, neither the Constitutional Court nor counsel for any of the parties realised that Mr Molaudzi had in fact previously applied to the Constitutional Court.Molaudzi I and the principle of res judicata would accordingly still pose an obstacle.He addressed a memorandum to the Chief Justice informing the Chief Justice of Molaudzi I, but took the position that because the constitutional tenability of the Ndhlovu rule was neither raised nor decided in Molaudzi I, the issue of res judicata does not arise, and proceeded to file an application on Mr Molaudzi's behalf.I refer to this second application as Molaudzi II.14The state did not oppose the application.However, the Chief Justice requested the parties to submit written argument on the issue of res judicata.
10 Molaudzi v S 2014 7 BCLR 785 (CC).11MolaudzivS20147BCLR 785 (CC) [2], footnote reference omitted.12LitakovS2014 3 All SA 138 (SCA).Within days of the hearing of Mhlongo v S; Nkosi v S, the Constitutional Court granted leave to appeal to these applicants, vitiated their convictions and sentences, and ordered their immediate release.However, reasons for the judgement were reserved.4Argumentadvancedonbehalf of Mr MolaudziCounsel for Mr Mhlongo and Mr Nkosi volunteered to represent Mr Molaudzi as well.However, once counsel started with his research, he soon discovered the existence of Molaudzi I.13Mhlongo v S; Nkosi v S 2015 2 SACR 323 (CC).14Molaudzi v S 2015 2 SACR 341 (CC).It can be noted that the author was counsel for the applicant/appellant in Molaudzi II.
25However, in this regard the Constitutional Court in Molaudzi II relied on the minority judgement in Mpofu quoted above, with the purport that absent proper legal representation, a lay person can simply not be expected to know and fully appreciate his or her rights and what grounds of appeal can be formulated based on such rights.