Malibongwe Mtotywa and Others v Director of Public Prosecutions (Mthatha)

The applicants were inmates at Mthatha Maximum Prison. In July 2001 they were convicted in the Mthatha High Court of two counts of murder, four counts of attempted murder, four counts of arson, and one count of assault with intent to do grievous bodily harm. Each applicant was sentenced to two concurrent life sentences for murder and an effective 71 years’ imprisonment on the remaining charges, all sentences running concurrently. Their appeals to the full bench of the High Court and subsequently an application for leave to appeal to the Supreme Court of Appeal were dismissed. After exhausting these remedies, the applicants appointed new legal representatives who advised that their original legal representation had been incompetent and ineffective, allegedly resulting in an unfair trial. The applicants then returned to the High Court seeking a special entry on the record under section 317 of the Criminal Procedure Act 51 of 1977, alleging trial irregularities. The High Court dismissed the application, holding that it lacked jurisdiction once the appeal process had been exhausted. The applicants thereafter approached the Constitutional Court directly, seeking direct access.

The application for direct access to the Constitutional Court was dismissed.

The case underscores the Constitutional Court’s strict approach to direct access and affirms that it is an exceptional remedy. It reinforces the principle that litigants must ordinarily exhaust the established appellate process, and that alleged violations of fair trial rights will not automatically justify the Constitutional Court acting as a court of first instance.