Jayesh Shah v Charles Nherera

The respondent sued the applicant for malicious prosecution, arrest and detention arising from corruption charges in 2005. The applicant had testified against the respondent after receiving immunity, leading to the respondent's conviction and two-year imprisonment. The conviction was later overturned on appeal. At trial, the High Court granted absolution from the instance at the close of the respondent's case. The Supreme Court reversed this on appeal and remitted the matter for continuation. Upon remittal, the trial court believed it was bound by factual findings made by the Supreme Court in the first appeal judgment. The trial court entered judgment for the respondent, awarding damages of US$30,000 for malicious prosecution and US$100,000 for malicious arrest and detention. The applicant's appeal to the Supreme Court was dismissed. The applicant then sought direct access to the Constitutional Court alleging violations of his rights to a fair hearing (s 69(2)) and equal protection of the law (s 56(1)).

• Whether the trial court was bound by factual findings made by the Supreme Court in an interlocutory appeal reversing absolution from the instance
• Whether the Supreme Court's validation of the trial court's approach violated the applicant's right to a fair trial before an independent and impartial court
• Whether it is in the interests of justice to grant direct access to challenge a Supreme Court decision on non-constitutional matters
• Whether the trial court could award damages without evidence of quantum
• What is the correct test for reviewing Supreme Court decisions under s 85(1) of the Constitution
• Whether the Supreme Court abdicated its duty by endorsing the trial court's erroneous approach

The application for direct access was granted with no order as to costs. The applicant was ordered to file the substantive application within 10 days in accordance with the Constitutional Court Rules.

A trial court is not bound by factual findings made by the Supreme Court in an interlocutory appeal reversing an order of absolution from the instance. The trial court remains fully empowered and obligated to make independent findings of fact after hearing all the evidence. A trial court that wrongfully surrenders its jurisdiction and decision-making role to an appellate court, believing itself bound by interlocutory findings, conducts the trial in a grossly irregular fashion that may violate the constitutional right to a fair trial before an independent and impartial court under s 69(2). A Supreme Court decision that validates such irregular proceedings may itself be subject to constitutional review under s 85(1) where its effect is to infringe fundamental rights. The test for constitutional review of Supreme Court decisions requires urgent clarification by the full bench, but the reviewability of such decisions is grounded in s 2(1) which invalidates any conduct, including judicial decisions, that is inconsistent with the Constitution.

Makarau JCC observed that the jurisprudence on reviewability of Supreme Court decisions is "embryonic and consequently thin" and that the test in Lytton Investments, while frequently cited, is "not expressed in exact terms" and has not been "readily and uniformly understood." She noted it may become necessary to "re-formulate the test in Lytton with greater precision" and explain the circumstances under which judicial protection is lost. Garwe JCC was more emphatic, stating that "the need for a clear enunciation by the full bench of this Court on what the test encapsulates becomes the more urgent" and that "this Court [can no longer] afford to continue, as some might say in popular parlance, kicking the can down the road." He catalogued the various formulations of the test in different Constitutional Court decisions, demonstrating inconsistency in approach. Gowora JCC agreed there is a need for "clarity in the law as to when a judgment of the Supreme Court may be set aside" to "ensure that the Court applies the same standards to all litigants." All three judges commented on the principle of stare decisis, noting it applies only to points of law, never to findings of fact. Makarau JCC noted in passing that s 56(1) has been construed narrowly as an equality provision rather than a due process protection, unlike s 18 of the repealed Constitution.

This case is significant for several reasons: (1) It highlights the developing and inconsistent jurisprudence on when final Supreme Court decisions may be reviewed under s 85(1) of the Constitution; (2) All three judges emphasized the urgent need for the full bench to articulate a clear, precise test for constitutional review of Supreme Court decisions; (3) It establishes that trial courts are not bound by factual findings made in interlocutory appeals reversing absolution from the instance - only the legal principles and the order for remittal are binding; (4) It confirms that a trial court's abdication of its independent decision-making role may constitute a violation of fair trial rights under s 69(2) of the Constitution; (5) It demonstrates that the Supreme Court's validation of irregular trial proceedings may itself be subject to constitutional review; (6) The case illustrates the tension between the finality of Supreme Court decisions under s 169 and the supremacy of the Constitution under s 2(1). The judgment signals an intention by the Constitutional Court to provide much-needed clarity and consistency in this important area of constitutional law.