Skhumbuzo Jerome Mthembu v The State

The applicant was convicted of armed robbery, illegal possession of firearms and illegal possession of ammunition on 3 October 2001 in the Vereeniging Regional Court and sentenced to an effective 15 years' imprisonment. The convictions and sentence were confirmed on appeal to the North Gauteng High Court on 7 October 2002, and the Supreme Court of Appeal refused further leave to appeal on 25 February 2003. The applicant was on bail during the appeal process and was required to report to serve his sentence after the refusal of leave to appeal. He failed to do so and only started serving his sentence when apprehended at his home on 3 April 2009, more than six years after the Supreme Court of Appeal's refusal. The applicant was an educated person who held a senior position as a director of a prominent football club and was legally represented throughout. Once imprisoned, he launched an application for leave to appeal to the Constitutional Court.

• Whether the applicant's arrest more than six years after refusal of leave to appeal infringed his right to freedom and security of the person under section 12 of the Constitution
• Whether leave to appeal against convictions should be granted
• Whether leave to appeal against sentence should be granted on constitutional grounds
• Whether delay in executing a sentence can be used as a basis for constitutional relief

The application for leave to appeal was dismissed. The Registrar was directed to serve copies of the judgment on: (i) the applicant and his attorneys of record; (ii) the National Prosecuting Authority; (iii) the Court Manager, Vereeniging; and (iv) the National Commissioner of Police.

Convicted persons out on bail pending appeal are under an obligation to ascertain the outcome of their appeal processes and to present themselves to serve their sentences if the appeal processes fail. Where a convicted person is educated, legally represented, and the outcome of the appeal has been properly communicated to the relevant court officials, the subsequent arrest of that person to serve their sentence (even after a substantial delay) does not constitute an infringement of the right to freedom and security of the person under section 12 of the Constitution. Such a person cannot rely on alleged ignorance of the appeal outcome to claim constitutional relief from their sentence. A delay in executing a sentence caused by the convicted person's own failure to comply with bail conditions and court orders cannot be used as a constitutional peg to seek re-sentencing or to avoid serving the lawfully imposed sentence.

The Court expressed concern that this was not an isolated case and that systemic failures existed in monitoring and executing sentences for convicted persons on bail. The Court noted that the National Prosecuting Authority lacks capacity to monitor all criminal appeals until a convicted person on bail has been arrested. The Court found it unsatisfactory that the clerk of the Magistrates' Court could not explain why it took more than six years to arrest the applicant, and stated this situation should be investigated and rectified by the National Prosecuting Authority, court administration services and the South African Police Service. The Court observed that different considerations may conceivably apply when a person is not legally represented, indigent and uneducated. The Court emphasized as a general principle that once a sentence is imposed it must be executed as soon as reasonably possible and court orders must be complied with promptly, as delay affects not only the accused but also victims of crimes and undermines the credibility of the criminal justice system.

This case clarifies the obligations of convicted persons on bail pending appeal and addresses the limits of using constitutional rights to avoid the consequences of failing to comply with court orders and bail conditions. It establishes that educated, legally represented accused persons cannot rely on alleged ignorance of appeal outcomes to claim constitutional violations when they are eventually arrested to serve their sentences. The case also highlights systemic concerns about delays in executing sentences and emphasizes the importance of prompt compliance with court orders for the integrity of the criminal justice system. The judgment underscores that delay in sentence execution affects victims and undermines the credibility of the criminal justice system.