Hyden Godfrey Shipalana v The State

The applicant, Mr Shipalana, was convicted of murder and kidnapping. The deceased was abducted and assaulted over a long period of time. The applicant was present during the various assaults that led to the deceased's death and participated in trying to hide the deceased's body. The trial Judge rejected his evidence as not credible. The applicant, acting in person while incarcerated, sought leave to appeal his conviction and sentence, but filed the application late and also sought condonation for the late filing.

• Whether the trial court properly applied the doctrine of common purpose
• Whether the doctrine of common purpose may be unconstitutional
• Whether there was sufficient evidence to prove guilt beyond reasonable doubt
• Whether the trial court's interpretation of facts violated the right to be presumed innocent
• Whether it is in the interests of justice to grant leave to appeal
• Whether condonation should be granted for the late application

1. Condonation is granted. 2. The application for leave to appeal is dismissed.

The Constitutional Court will not exercise jurisdiction to grant leave to appeal merely to overturn factual findings of the trial court. Even where the application of the common purpose doctrine is raised as a potential constitutional issue, leave to appeal will be refused where there is no arguable case of misapplication of the doctrine on the facts, particularly where the accused was present during assaults leading to death, participated in concealing evidence, and had their credibility rejected by the trial court. It is not in the interests of justice to grant leave to appeal in such circumstances.

The Court noted that while it has been lenient in granting condonation for late applications by incarcerated self-represented applicants, "the time might come where we will have to look more closely at these." This suggests potential future reconsideration of the Court's generous approach to condonation in such matters. The Court also acknowledged that the jurisdiction regarding misapplication of the common purpose doctrine in criminal matters has come under renewed scrutiny following Jacobs v S [2019] ZACC 4, where the Court was inconclusive on whether misapplication of the doctrine raises a constitutional issue, but declined to resolve this issue in the present case.

This case illustrates the Constitutional Court's approach to applications for leave to appeal in criminal matters where applicants seek to challenge factual findings rather than constitutional issues. It demonstrates the Court's lenient approach to condonation applications from incarcerated self-represented litigants while maintaining strict substantive requirements for granting leave to appeal. The judgment also references the ongoing uncertainty regarding whether misapplication of the common purpose doctrine raises constitutional issues, following the inconclusive decision in Jacobs v S [2019] ZACC 4, though the Court declined to resolve this issue on the facts of this case.