NGCOBO J
[46] The second judgment of the High Court makes it plain that the requirements set
out above were not met. The High Court took the view that if the conviction or
otherwise of Mr Mokoena could be confirmed without our decision on the
constitutional issues raised by it, it was “obviously in the interest of the victim and of
the accused that the next step in the proceedings should be taken as soon as
possible.”40 It concluded that the conviction could be confirmed without our decision
on the constitutional issues that it had raised. In effect, the High Court held that a
decision on the constitutional issues that it had of its own accord raised and decided,
was not necessary to confirm the conviction of Mr Mokoena. This conclusion by the
High Court is in stark contrast to the finding it made in its reported judgment, namely,
that the “constitutional matters needed to be decided before the questions of the
correctness of the convictions could be addressed.”41
[47] Apart from this, the High Court was rightly concerned about the delay in this
matter. When the matter was referred to the High Court a great deal of delay had
already occurred. And when the High Court raised the constitutional issues and heard
argument on them, there was a further delay which the High Court candidly
acknowledged.42 A decision on the constitutional issues was bound to result in further
delays as it carried with it the possibility of a referral of orders of invalidity to this
Court for confirmation which, in itself, would have resulted in a further delay. Having
regard to this and to the fact that a decision on those issues was not necessary to
40
Above n 18 at p 19.
41
Above n 10 at para 25. See also paras 26-8.
42
Id at paras 15-8.
25
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