Attorney Kgosi Ngakaagae weighs in on the Morupisi controversy.
This is not a case about Morupisi. To me, as a lawyer, it is our jurisprudence on trial. It is about whether our jurisprudence properly serves us. The law is not an end in itself. Presumably settled positions must continually be challenged. The frontiers of knowledge must be pushed and advanced through critical and rigorous inquiry. This is the only way our jurisprudence can grow and remain relevant to our times.
In the present case, most are asking whether the Court of Appeal is not superior to the High Court. Yes, it is. However, it is not the Court of Appeal’s prestige or hierarchical position that is under legal scrutiny. The issue is the doctrine of finality and whether that doctrine should stand if its application violates Morupisi’s rights. The tension is not between the High Court and the Court of Appeal, but rather between the constitutional rights of citizens and the common law.
Where does Morupisi go if he was abused by Walia J, as he claims? Does he retreat to a dark corner and hang himself? The Court of Appeal must remove its ego from this inquiry. It is not about the Court of Appeal or its rights—if it even has any. The Court of Appeal is merely a vessel for justice. This case is about constitutional rights. That is the prism through which the Court must approach the appeal: rights first, rights second, rights ad infinitum.
In the Kobedi case, the Court of Appeal discussed the issue of being requested to reopen a matter it had decided. However, in the present case, there was no appeal to speak of, which makes it distinguishable. This case is pari materia with the Reynolds decision in the Gwara Brown case, where Reynolds J (a High Court judge) simply held that the convicts (the Basarwa men) had not received a fair hearing. The truth is, Reynolds J was right. In fact, even Skelemani (then Attorney General) conceded to the miscarriage of justice during arguments before Reynolds J in the Kgafela urgent application. The mistake was glaring and resulted in a failure of justice.
As I have said, the question, in my view, is broader than the Morupisi matter. The question is whether the principle of finality is so sacrosanct or so critical to our jurisprudence that neither the High Court nor the Court of Appeal can correct a clear and glaring injustice (admittedly) committed by them, as in the Gwara Brown case. The question is whether there is any relief for litigants regarding errors by the Court of Appeal that have not been addressed before.
Does an uncritical adherence to the principle of finality place the Court of Appeal above the law? No institution of the state should be above the law. If the Court of Appeal has no powers to fix its own errors, then Parliament must act to correct this anomaly. We may need to consider creating a Constitutional Court or amending the Court of Appeal Act. While the principle of finality is important, there must be legitimate and clearly defined exceptions to it in criminal law.
Constitutional rights are the essence of the Court of Appeal’s existence. Criminal law, by nature, deals with the severest forms of legally sanctioned rights violations, including deprivation of liberty and the death penalty. Therefore, the principle of finality should be applied cautiously. Mechanisms must exist to correct judicial mistakes, whether expressly provided for or implied in the Court’s constitutional powers.
What if Gofamodimo’s victim had shown up just after conviction, as envisaged in the Kobedi case? What if he had appeared after the appeal? (Gofamodimo’s victim was never found.) Would the principle of finality still be judicially or logically supportable? Would we be content if the Court of Appeal and the High Court said they could not help him because of the principle of finality, leaving him to languish on death row? The Court of Appeal did not settle this question in the Kobedi case.
But lo and behold, there is glaring hypocrisy in it all. If the doctrine of finality is so sacrosanct, how do we explain that in civil cases, the principle is overridden by the availability of rescission remedies (in common law and procedural rules) based on similar considerations of error? Why should we defer to it when life and liberty are at stake, yet undermine it when litigants are disputing a breach of contract?
Why can’t rescissions be available in criminal law on the same grounds they are in civil cases? Who is supposed to initiate them? Aren’t they implied in the constitutional powers of the High Court and the Court of Appeal? Personally, I see no logic in this differentiation. I would, however, be happy to be persuaded otherwise.
