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

Authors

DOI:

https://doi.org/10.17159/1727-3781/2016/v19i0a1282

Keywords:

res judicata, interests of justice

Abstract

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).

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References

CASE LAW

Balkwell v S 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)

Published

2017-05-17

How to Cite

Jordaan, D. (2017). Taking a Second Bite at the Appeal Cherry: Molaudzi v S. Potchefstroom Electronic Law Journal, 19, 1–10. https://doi.org/10.17159/1727-3781/2016/v19i0a1282

Issue

Section

Case Notes