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[2003] ZACC 9
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S v Shongwe (CCT45/02) [2003] ZACC 9; 2003 (8) BCLR 858; 2003 (5) SA 276 (CC); 2003 (2) SACR 103 (CC) (30 May 2003)
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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 45/02
SIPHO SHONGWE Applicant
versus
THE
STATE Respondent
Decided on : 30 May 2003
JUDGMENT
THE COURT:
[1]
This
is an application for direct access to the Court in terms of rule 17 lodged by
the applicant’s attorney on his
behalf.
[1]
The applicant was
convicted in the Pretoria High Court of a number of serious charges, including
murder, attempted murder and robbery,
arising from a cash-in-transit robbery
that took place on 31 July 1997. On 1 March 2001, he was sentenced to two terms
of life imprisonment
as well as several further periods of imprisonment which he
is currently serving. His application for leave to appeal against his
conviction was refused both by the High Court and the Supreme Court of Appeal.
[2]
In convicting the accused,
the High Court relied upon the evidence of a state witness regarding the
applicant’s involvement
in the planning of the robbery as corroborated by
certain admissions and a pointing out made by the applicant to a police officer
during the night of 19 and 20 March 1998. The High Court did not consider the
state witness’s evidence to be wholly satisfactory
and relied on it only
to the extent that it was corroborated by other evidence.
[3]
The applicant argues,
amongst other things, that in admitting the evidence of the pointing out and the
admissions made on the night
in question, his fundamental right to a fair trial
was impeached. This assertion is made on the basis that prior to the
applicant’s
being arrested on 19 March 1998, the police had given an
undertaking to his attorney that should they wish to question the applicant,
they would first contact his attorney. The police breached this undertaking on
19 March 1998 which the applicant asserts constitutes
a breach of his right to a
fair trial.
[4]
The state has not filed any
opposition to the applicant’s case. From a reading of his affidavit alone,
it may well be that the
applicant raises a substantive constitutional point that
may or may not affect the correctness of his conviction. However, it is
quite
clear that the procedure adopted by the applicant is quite wrong. In essence,
the applicant seeks direct access to this Court
to appeal against his conviction
by the High Court. It is impermissible to use the rule 17 procedure for
appeals. Rule 17 is a procedure
for gaining access to this Court directly,
ordinarily in circumstances where the issue raised has not been considered by
another
court.
[2]
It may be employed
in exceptional circumstances only.
[3]
It is not an appeal procedure, nor may it be used for disguised appeals.
[5]
In this case as the
applicant wishes to appeal his conviction, the only course open to him is to
approach the Court in terms of rule
18.
[4]
Given that the applicant is
represented by an attorney,
[5]
there
is no reason for this Court to treat his rule 17 application as a rule 18
application in particular because such an application
would have to be
accompanied by an appropriate application for condonation. This Court has not
yet considered the circumstances
in which it would be proper to grant
condonation in cases where a substantive constitutional issue is raised in a
criminal matter
where the time for an appeal has long since expired. In
considering such a matter, the Court would be alert both to the need to
provide
protection for constitutional rights, on the one hand, and to the desirability
of finality in litigation, on the other.
The Court could only decide this issue
in a proper case where an application for condonation is lodged and where the
state has had
an opportunity to respond. An applicant would also need to show
some legitimate reason for his or her failure to launch the application
for
leave to appeal to this Court timeously. Be that as it may, the question does
not arise for determination here as the procedure
adopted by the applicant is
quite inappropriate.
[6]
The application is therefore
dismissed.
By the Court: Chaskalson CJ,
Langa DCJ, Goldstone J, Madala J, Mokgoro J, Moseneke J, Ngcobo J, O’Regan
J, and Yacoob J.
For the applicant: LS Francis Attorneys
[1]
Rule 17(1) provides as follows:
“An application for direct access as contemplated in s 167(6)(a) of the
Constitution shall be brought on notice of motion which
shall be supported by an
affidavit which shall set forth the facts upon which the applicant relies for
relief.”
[2]
See
Van der Spuy v General Council of the Bar of South Africa (Minister of
Justice and Constitutional Development, Advocates for Transformation
and Law
Society of South Africa Intervening)
[2002] ZACC 17
;
2002 (5) SA 392
(CC);
2002 (10) BCLR
1092
(CC) at paras 7 – 9.
[3]
See
Bruce and Another v
Fleecytex Johannesburg CC and Others
[1998] ZACC 3
;
1998 (2) SA 1143
(CC);
1998 (4) BCLR
415
(CC) at para 4.
[4]
Rule 18(1) provides as
follows:
“The procedure set out in this rule shall be followed in an application
for leave to appeal directly to the Constitutional
Court where a decision on a
constitutional matter, other than an order of constitutional invalidity under
section 172(2)(a) of the
Constitution, has been given by any court other than
the Supreme Court of Appeal irrespective of whether the Chief Justice has
refused
leave or special leave to
appeal.”
[5]
In
Wallach v High Court of South Africa and Others
CCT 2/03 as yet
unreported decision of this case dated 4
th
April 2003, the applicant
was unrepresented. That application too concerned what was, in effect, an
attempt by an applicant to appeal
a decision of the High Court under rule 17.
It was dismissed by the Court for that reason. The court also held that even if
the
defective application were to be construed as a rule 18 application it was
not proper for a direct appeal to be brought to this Court
and would fail on
that basis too.