principal features which have to be considered when contemplating the possibility of a retrospective order had been crisply summarised in the following passage from O’Regan J’s judgment in S v Bhulwana; S v Gwadiso:[1]
“Central to a consideration of the interests of justice in a particular case is that successful litigants should obtain the relief they seek. It is only when the interests of good government outweigh the interests of the individual litigants that the court will not grant relief to successful litigants. In principle too, the litigants before the court should not be singled out for the grant of relief, but relief should be afforded to all people who are in the same situation as the litigants (see US v Johnson 457 US 537 (1982); Teague v Lane 489 US 288 (1989)). On the other hand, as we stated in S v Zuma (at para 43), we should be circumspect in exercising our powers under section 98(6)(a) so as to avoid unnecessary dislocation and uncertainty in the criminal justice process. As Harlan J stated in Mackey v US 401 US 667 (1971) at 691:
‘No one, not criminal defendants, not the judicial system, not society as a whole is benefited by a judgment providing a man shall tentatively go to jail today, but tomorrow and every day thereafter his continued incarceration shall be subject to fresh litigation on issues already resolved.’
As a general principle, therefore, an order of invalidity should have no effect on cases which have been finalised prior to the date of the order of invalidity.”
- ↑ 1995 (12) BCLR 1579 (CC); 1996 (1) SA 388 (CC) at para 32.
