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[2010] ZACC 8
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Mthembu v S (CCT115/09) [2010] ZACC 8; 2010 (1) SACR 619 (CC) ; 2010 (7) BCLR 636 (CC) (25 March 2010)
Links to summary
CONSTITUTIONAL COURT OF SOUTH AFRICA
Case
CCT 115/09
[2010]
ZACC 8
In
the matter between:
SKHUMBUZO
JEROME
MTHEMBU
................................................................
Applicant
and
THE
STATE
.......................................................................................................
Respondent
Decided
on : 25 March 2010
JUDGMENT
THE
COURT:
The applicant seeks leave to appeal to
this Court against his convictions of armed robbery, illegal
possession of fire-arms and
illegal possession of ammunition, as
well as against the effective sentence of 15 years’
imprisonment in respect of these
offences. The applicant was
initially convicted and sentenced on 3 October 2001 in the
Vereeniging Regional Court. On appeal
to the North Gauteng High
Court, Pretoria, on 7 October 2002, the convictions and
sentence were confirmed and leave to appeal
was refused (Moseneke J;
Van der Walt J concurring). The applicant then petitioned the
Supreme Court of Appeal but further leave
to appeal was refused by
that court on 25 February 2003. The applicant was out on bail
during the appeal process and should
have reported to the Clerk of
the Court, Vereeniging, to serve his sentence when leave to appeal
was refused. He did not do
so. He started serving his sentence
only when he was apprehended at his home on 3 April 2009, more than
six years after refusal
of his petition to the Supreme Court of
Appeal. Once imprisoned, the applicant launched the present
application.
The application for leave to appeal
against the convictions raises no constitutional issue and has no
merit. Nothing further
need be said about that.
The applicant contends that his arrest
in order to start serving his sentence more than six years after the
refusal of his application
for leave to appeal to the Supreme Court
of Appeal infringed his right to freedom and security of the person
under the Constitution.
1
He seeks to use this alleged infringement as the constitutional peg
on which to hang the argument that he should be granted
leave to
appeal to this Court against the sentences imposed. He claims that
he “cannot at the age of 60 be expected to
serve a sentence
[he] could have served and completed [within] five years”, and
therefore contends that he should receive
a wholly suspended or
non-custodial term.
The contention is ingenious but deeply
problematic. Convicted persons out on bail pending appeal or
application for leave to
appeal are under an obligation to ascertain
the outcome of their appeal processes and to present themselves to
serve their sentences
if the appeal processes fail. This obligation
in fact formed part of the applicant’s bail conditions. The
applicant was
legally represented throughout those processes. He is
an educated person who held a senior position as a director of a
prominent
football club. His allegation that for six years he was
unaware of the outcome of the application for leave to appeal
despite
repeated efforts to ascertain the outcome cannot be
accepted.
While considering the application, the
Court issued directions requesting information from the National
Prosecuting Authority
and various court officials that processed the
applicant’s attempts to appeal while on bail. From affidavits
filed on
behalf of the National Prosecuting Authority it is clear
that the dismissal of the application to the Supreme Court of Appeal
was known to the relevant administrative officials and that a copy
of the order was forwarded to the Clerk of the Court at the
Vereeniging Magistrates’ Court soon after the application for
leave to appeal was dismissed. This means there is no reasonable
excuse for the applicant not to have ascertained for himself the
true position regarding the outcome of the application for leave
to
appeal. Different considerations may conceivably apply when a
person is not legally represented, indigent and uneducated;
this is
certainly not such a case.
What is of concern, however, is that
it appears that this is by no means an isolated case. The National
Prosecuting Authority
records in its response to the Court’s
directions that it does not have the capacity to monitor all
criminal appeals until
a convicted person, out on bail, has been
arrested. Once the prosecution becomes aware of the outcome of an
appeal it informs
the clerk of the court where the criminal case
originated from, of the outcome. Thereafter it becomes the
responsibility of
that court to issue a warrant of arrest and for
the South African Police Service (SAPS) to effect the arrest in
order for the
convicted person to be committed to prison.
In the present case the clerk of the
Magistrates’ Court, has been singularly unhelpful in
explaining why it took more than
six years to arrest the applicant.
This is an unsatisfactory situation which should be investigated and
rectified by the National
Prosecution Authority, court
administration services and the SAPS.
A delay in the execution of a sentence
not only affects the accused but also affects the victims of the
crimes and undermines
the credibility of the criminal justice
system. It is imperative that
once a sentence
is imposed it must be executed as soon as reasonably possible and
the court order must be complied with promptly.
The application for leave to appeal
must be dismissed because it bears no prospects of success.
Order
The following order is made:
The application is dismissed.
The Registrar is directed to
serve copies of this judgment on:
the applicant and his
attorneys of record;
the National Prosecuting
Authority;
the Court Manager,
Vereeniging; and
the National Commissioner of
Police.
Ngcobo CJ, Cameron J,
Froneman J, Jafta J, Khampepe J, Mogoeng J, Nkabinde J, Skweyiya J,
Van der Westhuizen J and Yacoob J.
1
Section 12 provides:
“
(1) Everyone has the right to freedom and
security of the person, which includes the right—
(a) not to be deprived of freedom arbitrarily or
without just cause;
(b) not to be detained without trial;
(c) to be free from all forms of violence from either
public or private sources;
(d) not to be tortured in any way; and
(e) not to be treated or punished in a cruel, inhuman
or degrading way.
(2) Everyone has the right to bodily and psychological
integrity, which includes the right—
(a) to make decisions concerning reproduction;
(b) to security in and control over their body; and
(c) not to be subjected to medical or scientific
experiments without their informed consent.”