Sipho Shongwe v The State

The applicant was convicted in the Pretoria High Court on 1 March 2001 of several serious charges including murder, attempted murder and robbery arising from a cash-in-transit robbery on 31 July 1997. He was sentenced to two terms of life imprisonment and several further periods of imprisonment. The High Court conviction relied on evidence from a state witness regarding the applicant's involvement in planning the robbery, corroborated by admissions and a pointing out made by the applicant to police during the night of 19-20 March 1998. Leave to appeal was refused by both the High Court and the Supreme Court of Appeal. The applicant alleged that police had given an undertaking to his attorney that they would contact the attorney before questioning him, but breached this undertaking when they arrested him on 19 March 1998.

• Whether rule 17 (direct access) may be used to bring an appeal against a criminal conviction
• What is the appropriate procedure for appealing a criminal conviction to the Constitutional Court where time limits have expired
• Whether the procedural irregularity adopted by the applicant could be overlooked by the Court

The application was dismissed.

Rule 17 of the Constitutional Court Rules is a procedure for gaining direct access to the Constitutional Court in circumstances where an issue has not been considered by another court, and may only be employed in exceptional circumstances. It is not an appeal procedure and may not be used for disguised appeals. Where an applicant seeks to appeal a conviction, the proper procedure is to approach the Court under rule 18, not rule 17. The Court will not overlook improper procedural choices, particularly where the applicant is legally represented.

The Court observed that it had not yet considered the circumstances in which it would be proper to grant condonation in criminal cases where a substantive constitutional issue is raised but the time for appeal has long expired. In considering such matters, the Court stated it 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 noted that the applicant may well have raised a substantive constitutional point that may or may not affect the correctness of his conviction, but this could not be determined without proper procedure being followed. The Court also noted that an applicant would need to show some legitimate reason for failure to launch an application for leave to appeal timeously.

This case clarifies the important distinction between rule 17 (direct access) and rule 18 (leave to appeal) procedures in the Constitutional Court. It establishes that rule 17 cannot be used as a backdoor appeal mechanism and reinforces the principle that even where constitutional rights may be at stake, proper procedural requirements must be followed. The judgment also signals that the Court will consider applications for condonation in criminal cases raising constitutional issues on a case-by-case basis, balancing constitutional rights protection against the need for finality in litigation, but only where proper procedures are followed.