Mthembu v S (CCT115/09) [2010] ZACC 8; 2010 (1) SACR 619 (CC) ; 2010 (7) BCLR 636 (CC) (25 March 2010)

Mthembu v S (CCT115/09) [2010] ZACC 8; 2010 (1) SACR 619 (CC) ; 2010 (7) BCLR 636 (CC) (25 March 2010)

The Court held that the applicant's arrest to commence serving his sentence after a delay of more than six years did not infringe his constitutional rights under section 12. The applicant was legally represented, educated, and aware of his obligations under bail conditions to ascertain the outcome of his appeal and present himself for imprisonment. His claim of ignorance was rejected. The administrative process for executing sentences was found to be unsatisfactory and in need of improvement, but this did not provide a constitutional basis for granting leave to appeal. The application for leave to appeal against conviction and sentence raised no constitutional issue and bore no prospects...

Citation
[2010] ZACC 8
Parties
Applicant: Skhumbuzo Jerome Mthembu; Respondent: The State
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
25 March 2010
Case Number
CCT 115/09
Procedural Posture
Leave to Appeal / Application for Leave to Appeal to Constitutional Court
Outcome
Application for leave to appeal dismissed.
Judges
Ngcobo, Cameron, Froneman, Jafta, Khampepe, Mogoeng, Nkabinde, Skweyiya, Van der Westhuizen, Yacoob
Legal Topics
Leave to Appeal, Execution of Sentence Delay, Section 12 Rights, Bail Conditions, Criminal Conviction, Sentence Enforcement
Criminal Law Constitutional Law Leave to Appeal Execution of Sentence Delay Section 12 Rights Bail Conditions Criminal Conviction Sentence Enforcement

Case Brief

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Parties

Skhumbuzo Jerome Mthembu

Applicant

The State

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal to Constitutional Court

Legal Issues

  1. 1 Whether the delay in arresting the applicant to serve his sentence infringed his constitutional rights under section 12.
  2. 2 Whether the applicant's ignorance of the outcome of his appeal excuses his failure to present himself for imprisonment.
  3. 3 Whether there is any constitutional issue or prospect of success warranting leave to appeal against conviction or sentence.

Ratio Decidendi

The Court held that the applicant's arrest to commence serving his sentence after a delay of more than six years did not infringe his constitutional rights under section 12. The applicant was legally represented, educated, and aware of his obligations under bail conditions to ascertain the outcome of his appeal and present himself for imprisonment. His claim of ignorance was rejected. The administrative process for executing sentences was found to be unsatisfactory and in need of improvement, but this did not provide a constitutional basis for granting leave to appeal. The application for leave to appeal against conviction and sentence raised no constitutional issue and bore no prospects...

Court Disposition

Application for leave to appeal dismissed.

Orders

  • 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.