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Potchefstroom Electronic Law Journal (PELJ)

On-line version ISSN 1727-3781

Abstract

JORDAAN, DW. Taking a Second Bite at the Appeal Cherry: Molaudzi v S. PER [online]. 2016, vol.19, n.1, pp.1-10. ISSN 1727-3781.  http://dx.doi.org/10.17159/1727-3781/2016/v19n0a1282.

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).

Keywords : Res judicata; interests of justice.

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