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[2005] ZACC 23
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Mtotywa and Others v Director of Public Prosecutions (Mthatha) (CCT61/05) [2005] ZACC 23; 2006 (4) BCLR 459 (CC) (14 December 2005)
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT
61/05
MALIBONGWE
MTOTYWA First Applicant
ANDILE MJAYEZI Second
Applicant
KOCKET ZELE Third
Applicant
LANDELA
SIQONDIFATYI Fourth Applicant
GCINIBANDLA
GXIVA Fifth Applicant
versus
THE DIRECTOR OF PUBLIC
PROSECUTIONS:
(MTHATHA) First
Respondent
ATTORNEY (ATKIN. F.
NOXAKA)
Decided on : 14
December 2005
JUDGMENT
THE COURT:
In this matter, applicants have applied for direct access under
Rule 18 of the Rules and contemplated in section 167(6)(a) of
the
Constitution. The applicants are all inmates at the Mthatha
Maximum Prison, Mthatha.
In July 2001
the applicants were convicted of two counts of murder, four of
attempted murder, four of arson and one count of assault
with
intent to do grievous bodily harm. On 31 July 2001 they were each
sentenced to two terms of life imprisonment on the charges
of
murder and a collective 71 years imprisonment in respect of the
rest of the charges. All the sentences run concurrently.
Applicants
appealed against their convictions and the sentences imposed by the
single judge in the Mthatha High Court (High Court)
to the full
bench, presumably with the necessary leave, which in turn dismissed
the appeal. They applied for leave to appeal
to the Supreme Court
of Appeal (SCA), which dismissed the application in July 2004.
After this
application was dismissed, applicants appointed new attorneys.
After studying the cases and the record in the High
Court new
counsel advised applicants that they had been provided with
incompetent and ineffective legal representation and on
that basis
they had been denied a fair trial.
The applicants
returned to the High Court on 25 July 2005, applying for a special
entry on the record under section 317 of the
Criminal Procedure Act
(CPA). They argued that the incompetence of their legal
representative gave rise to irregularity in their
trial, making the
trial unfair. The High Court dismissed the application.
Basing its
reasoning on
Sefatsa and Others v Attorney-General, Transvaal,
and Another
1989 (1) SA 821
(A) and
Mabunjana v The
Magistrate of Lusikisiki and Another
1995 (2) SACR 368
(T)
,
the court held that it was not permissible to apply for a
special entry at a time when the appeal procedure had been
exhausted.
Once an application for leave to appeal against a
decision of the trial court is granted, the court becomes
functus
officio
and would have no jurisdiction to make the entry.
The applicants
now approach this Court directly from the High Court, claiming
entitlement to a special entry, without which their
trial would not
have been fair, contrary to section 35(3) of the Constitution.
Whether this is properly an application for direct
access under
Rule 18 or one for leave to appeal under Rule 19, we need not
decide. In either instance, this Court is asked to
be the first to
consider the constitutional issue at stake without the benefit of
an SCA judgment on the matter.
Although the
applicants are of the view that the question of the special entry
under section 317 of the CPA in the context of
the right to a fair
trial raises a constitutional matter falling within the
jurisdiction of this Court, it is not in the interests
of justice
to grant the application for direct access: the applicants do not
show any exceptional circumstances which exist,
justifying why this
matter should come to this Court directly. We could not find any.
It is therefore not clear why this Court
is better placed than any
other court in the normal course of the appeals procedure to hear
the matter.
In the result,
the application for direct access to this Court is dismissed.
THE COURT: Langa
CJ, Moseneke DCJ, Mokgoro J, Ngcobo J, Sachs J, Skweyiya J, Van der
Westhuizen J and Yacoob J.