Mtotywa and Others v The Director of Public Prosecutions: Mthatha and Another

The five 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. They were each sentenced to two terms of life imprisonment for murder and a collective 71 years imprisonment for the remaining charges, all running concurrently. They appealed to the full bench of the High Court, which dismissed the appeal. They then applied for leave to appeal to the Supreme Court of Appeal (SCA), which dismissed the application in July 2004. After appointing new attorneys and counsel, the applicants were advised they had received incompetent and ineffective legal representation and had been denied a fair trial. On 25 July 2005, they returned to the High Court applying for a special entry on the record under section 317 of the Criminal Procedure Act (CPA), arguing that their legal representative's incompetence created an irregularity making their trial unfair. The High Court dismissed this application on the basis that it was not permissible to apply for a special entry after appeal procedures had been exhausted.

• Whether applicants were entitled to direct access to the Constitutional Court under Rule 18 and section 167(6)(a) of the Constitution
• Whether exceptional circumstances existed to justify bypassing the normal appeals procedure
• Whether the question of a special entry under section 317 of the CPA in the context of the right to a fair trial under section 35(3) of the Constitution justified direct access to the Constitutional Court

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

Direct access to the Constitutional Court under Rule 18 and section 167(6)(a) of the Constitution will not be granted merely because a matter potentially raises a constitutional issue. Applicants must demonstrate exceptional circumstances justifying why the matter should bypass the normal appeals procedure and come directly to the Constitutional Court. The interests of justice require that the Constitutional Court should ordinarily benefit from judgments of lower courts, particularly the Supreme Court of Appeal, before being the first to consider a constitutional issue.

The Court noted that it need not decide whether the application was properly characterized as one for direct access under Rule 18 or one for leave to appeal under Rule 19, as in either instance the Court was being asked to be the first to consider the constitutional issue without the benefit of an SCA judgment. This suggests that the characterization of the application would not have affected the outcome, as the fundamental problem was the absence of exceptional circumstances and the lack of lower court guidance on the issues raised.

This case reinforces the Constitutional Court's gatekeeping function and its approach to direct access applications. It demonstrates that even where a matter potentially raises constitutional issues (such as fair trial rights under section 35(3)), this alone is insufficient to warrant direct access. The case emphasizes that applicants must demonstrate exceptional circumstances and explain why the Constitutional Court is better placed than other courts to hear the matter first. It affirms the principle that the Constitutional Court should ordinarily benefit from lower court judgments, particularly from the Supreme Court of Appeal, before determining constitutional questions. The judgment underscores the importance of following the normal appeals hierarchy unless truly exceptional circumstances exist.