Skhumbuzo Jerome Mthembu v The State

The applicant was convicted in the Vereeniging Regional Court in 2001 of armed robbery, illegal possession of firearms and illegal possession of ammunition, and sentenced to an effective 15 years’ imprisonment. His convictions and sentence were confirmed on appeal by the North Gauteng High Court in 2002, and a subsequent petition for leave to appeal to the Supreme Court of Appeal was refused in 2003. The applicant was on bail pending appeal but failed to present himself to serve his sentence after leave to appeal was refused. He was only arrested and commenced serving his sentence in April 2009, more than six years later. After his arrest, he applied to the Constitutional Court for leave to appeal, contending that the delayed execution of his sentence infringed his constitutional right to freedom and security of the person.

The application for leave to appeal was dismissed. The Registrar was directed to serve copies of the judgment on the applicant, the National Prosecuting Authority, the Court Manager at Vereeniging, and the National Commissioner of Police.

The case affirms that delays in the execution of a sentence do not, without more, constitute a violation of constitutional rights where the delay is attributable to the convicted person’s failure to comply with bail conditions. It underscores the responsibility of accused persons on bail pending appeal to actively ascertain appeal outcomes and report to serve sentences. The judgment also highlights systemic administrative shortcomings in the criminal justice system, while making clear that such shortcomings do not automatically entitle convicted persons to relief.