Case  CCT 306/22
[2025] ZACC 24

Hearing Date: 07 March 2024

Judgement Date: 05 November 2025

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On Wednesday, 5 November 2025, the Constitutional Court handed down judgment in an application for condonation and leave to appeal against a judgment and order of the Regional Court for the Eastern Cape, Mthatha. There are five judgments in this matter. The first judgment is penned by Mhlantla J and Theron J (Tshiqi J and Mathopo J concurring fully and Bilchitz AJ concurring with its order and, subject to qualifications, with its reasoning). This judgment is the majority judgment. The second judgment is penned by Dodson AJ (Madlanga J concurring). The third judgment is penned by Majiedt J (Zondo CJ concurring). The fourth judgment is penned by Bilchitz AJ. The fifth judgment is penned by Zondo CJ.

The background to this matter is as follows. The applicants are Mr Zolani Godloza and Mr Sibulele Mthetho were charged together with Mr Lungisa Grifhs, Mr Siphamandla Tayi and Mr Lwandile Jonas, with one count of murder of Mr Thulani Ntsikini while acting in common purpose. Their trial was in the Regional Court, and they pleaded not guilty and proffered alibi defences. On 28 November 2018, the applicants and Mr Grifhs were convicted of murder. Their conviction was solely based on the evidence of Mr Kwanele Bavu, a purported eyewitness. The Regional Court accepted Mr Bavu’s evidence notwithstanding the fact that Mr Bavu had previously made a mistake about two of the co-accused and his testimony was inconsistent.

The applicants and Mr Grifhs sought leave to appeal against their conviction and sentence on the basis that the Regional Court had erred in its application of the cautionary rule when considering the evidence of the single witness. On 13 June 2019, the application was dismissed for lack of prospects of success. They then filed a petition in the High Court Eastern Cape Local Division, Mthatha, for leave to appeal. This was refused on 9 October 2019.

Subsequently, the applicants and Mr Grifhs filed separate applications in the Supreme Court of Appeal for special leave to appeal, and these were considered by different panels of judges. On 15 May 2020, Mr Grifhs was granted special leave to appeal. On 13 August 2020, the applicants’ application was dismissed on the grounds that there were no special circumstances meriting a further appeal on the merits.

Mr Grifhs’ application came before the Supreme Court of Appeal on 1 September 2021. The Court held that there were “substantial unexplained contradictions between Mr Bavu’s oral testimony and his written statement to the police” and therefore, there were reasonable prospects of success. It granted Mr Grifhs leave to appeal to the High Court.

On learning of Mr Grifhs’ successful application, the applicants lodged an application for reconsideration in terms of section 17(2)(f) of the Superior Courts Act, informing the President of the Supreme Court of Appeal (President) that their co-accused had been granted special leave by that Court. On 21 February 2022, that application was dismissed on the basis that there were no exceptional circumstances.

The applicants first filed their application in this Court on 15 March 2022. They, however, re-filed it in September 2022 with an application for condonation, due to the Registrar’s inability to locate the original application. The applicants submitted that no prejudice arises to the respondents from this delay, while they would suffer grave injustice if condonation was not granted. The applicants argued that both this Court’s constitutional and general jurisdiction were engaged and that their rights to a fair trial, equal treatment before the law, freedom and security of the person and freedom of movement were violated.

As a basis for their appeal, the applicants raised several grounds. First, they contended that the Regional Court did not apply the cautionary rule properly as there were material contradictions and inconsistencies between Mr Bavu’s oral evidence and witness statements. Second, they contended the trial court failed to explain the provisions of section 51(1) of the Criminal Law Amendment Act. Third, they contended the Regional Court failed to explain the provision of section 93ter of the Magistrates’ Court Act. Fourth, they contended the President’s dismissal of their reconsideration application, while granting Mr Grifhs’ leave to appeal, violated their fair trial rights and amounted to unfair differential treatment. Finally, they submitted that during sentencing, the Regional Court failed to consider their circumstances, including their chance of rehabilitation as first-time offenders.

The respondent submitted that there was substantial compliance with section 93ter of the Magistrates’ Court Act and that the applicants were appropriately apprised of the provisions of section 51 of the Criminal Law Amendment Act. However, the respondent submitted that the differential granting of leave between Mr Grifhs and the applicants created an untenable scenario as their cases involve identical material aspects. The respondent agreed that the Regional Court failed to apply the cautionary rule, and that it would be “foolhardy” to rely on the contradictory evidence of a single witness as a sufficient basis for conviction. Since a similar issue may arise in the future, the respondent submitted that it is in the interests of justice for this Court to grant leave to appeal. Regarding remedy, the respondent submitted that the appeal, if granted, must be heard by the High Court.

The first judgment

The first judgment, penned by Mhlantla J and Theron J, held that condonation should be granted as there was an adequate explanation for the delay and there is no potential prejudice to the respondent, while the applicants would suffer significant prejudice if condonation were not granted.

On jurisdiction, the first judgment considered five potential grounds for jurisdiction: (a) the alleged misapplication of the cautionary rule; (b) the alleged non-compliance with section 93ter; (c) the alleged inadequate warning of the applicable minimum sentence; (d) the alleged violation of the rights to equality, a fair trial and access to courts emanating from the dismissal of the reconsideration application (the grave injustice argument); and (e) the alleged violation of the right not to be deprived of freedom arbitrarily without just cause.

First, this judgment held that the misapplication of the cautionary rule constituted a misapplication of the law, which in itself does not engage this Court’s jurisdiction. Second, the first judgment concluded that the section 93ter argument was raised for the first time in this Court. In any event, counsel indicated during the hearing that this argument had been abandoned. The same is true regarding the applicable minimum sentence argument, which counsel indicated to have been abandoned.

Regarding the dismissal of the reconsideration application, the first judgment held that the granting of leave to Mr Grifhs, in itself, did not constitute an exceptional circumstance that would clothe this Court with jurisdiction. Referencing the principle that the right to equality does not guarantee equality of outcome in litigation, the first judgment held that the applicants and Mr Grifhs were accorded the same rights. The alleged unfairness emanated from an exercise of judicial discretion, in which different outcomes were inherent. Thus, the dismissal of the applicants’ reconsideration application did not violate their right to appeal.

The first judgment found constitutional jurisdiction based on the potential infringement of the applicants’ rights to a fair trial and to freedom and security of the person. It is well established that an alleged breach of the right to a fair trial is a constitutional issue. Similarly, the potential breach of the right not to be deprived of one’s freedom arbitrarily and without just cause also raised a constitutional issue. The first judgment held that the scope of a court’s jurisdiction in respect of fundamental rights violations, particularly those involving liberty and human dignity, is an established element of constitutional systems.

In this case, the applicants demonstrated potential violations of their right to a fair trial and to freedom and security of the person.

Regarding leave to appeal, the first judgment held that the interests of justice were determinative in this case. While it could not automatically follow that applicants should be granted leave because their co-accused had been, the facts in this case warranted such a result. The applicants were convicted of murder on the same factual complex as Mr Grifhs. The State also conceded that it cannot support or defend the conviction. In such a criminal matter, the unequal treatment implicated the right not to be deprived of freedom arbitrarily and without just cause and the right to equality.

A denial by this Court to make an order redressing the harm to the applicants would carry the risk of a denial of justice. The applicants had been sentenced to prison sentences of 16 years, while Mr Grifhs had been out on bail since September 2020. This constituted disparate treatment. The first judgment concluded that there is no effective alternative remedy and there were reasonable prospects of success in the matter, as evidenced by the concessions by the State and the judgment of the Supreme Court of Appeal in Mr Grifhs’ application for special leave.

For these reasons, the first judgment held that this Court’s constitutional jurisdiction was engaged and leave to appeal was granted. As there was a pending appeal concerning Mr Grifhs, the majority held that it would be most appropriate and expedient for these appeals to be heard together.

The second judgment

The second judgment, penned by Acting Justice Dodson, agreed with the first and third judgments insofar as they held that the misapplication of the cautionary rule did not engage this Court’s jurisdiction. It also agreed with the first judgment on condonation and in finding against the applicants’ arguments pertaining to section 93ter of the Magistrates’ Courts Act and section 51 of the Criminal Law Amendment Act. Further, the second judgment agreed with the third judgment that the outcome proposed by the first judgment would possibly lead to an avalanche of criminal matters.

The second judgment differed with respect to the refusal by the President of the Supreme Court of Appeal of the application in terms of the proviso to section 17(2)(f) of the Superior Courts Act (the proviso). It held that the proviso extends the “appeal road by adding a further remedy”.

Referencing this Court’s interpretation in the other judgments, the second judgment reiterated that “exceptional circumstances” under the proviso require that grave injustice would ensue or that the administration of justice would be brought into disrepute in the absence of a reconsideration. One such example was where “contrary orders in two cases which were materially identical were made by different panels of the Supreme Court of Appeal”. Hence, while “ordinarily” this Court would lack jurisdiction to consider an appeal against the President’s decision in terms of the proviso, different outcomes from different panels of the Supreme Court of Appeal in respect of the same set of factual and legal circumstances go a long way toward establishing exceptional circumstances. In this case, the second judgment held that because the applicants and Mr Grifhs were so similarly situated, unequal outcomes from different panels of the Supreme Court of Appeal would create a strong prima facie case for exceptional circumstances warranting intervention.

On the first judgment’s criticism of the second judgment as giving rise to a dual appeal system, the second judgment disagreed. It held that where issues of inconsistent outcomes for similarly situated litigants are concerned, the proviso requires a judicial assessment based on a mixture of fact, law, fairness and judicial experience. Absent compelling circumstances, an appeal would not lie against a decision of the President for refusing reconsideration if the applicant can apply to this Court for leave to appeal on the merits. Further, if this Court’s jurisdiction is engaged and if it is in the interests of justice to grant leave to appeal against the decision of the court a quo on the merits, it would not be in the interests of justice to grant leave to appeal against the President’s decision pursuant to section 17(2)(f). Thus, the second judgment held that there were no dual avenues of appeal.

Had it commanded a majority, the second judgment would have granted leave to appeal against the decision of the President of the Supreme Court of Appeal dismissing the applicants’ application in terms of the proviso to section 17(2)(f) of the Superior Courts Act 10 of 2013.

The third judgment

The third judgment, penned by Majiedt J, disagreed with the outcome and reasoning of the first judgment in respect of jurisdiction. It held that this Court lacked jurisdiction in this matter. Consequently, the third judgment would have refused leave to appeal.

The third judgment also disagreed with the second judgment’s finding that the President’s decision engaged this Court’s jurisdiction. It emphasised three important criminal law propositions, which are that— (a) not every wrong judgment is a miscarriage of justice; (b) unequal outcomes for litigants in petitions for leave to appeal do not automatically constitute a grave injustice warranting reconsideration; and (c) the alleged inadequacy of evidence to sustain a conviction cannot establish this Court’s jurisdiction. If so, then every wrong decision would clothe this Court with jurisdiction, leading to an avalanche of cases.

The third judgment also underscored this Court’s jurisprudence on two different outcomes in petitions for leave to appeal to the Supreme Court of Appeal. It emphasised that in Van der Walt v Metcash Trading Limited, this Court held that its jurisdiction is not engaged in such situations. The third judgment held that Metcash is binding authority in both civil and criminal cases and that the first two judgments failed to recognise this aspect.

Regarding the applicants’ constitutional arguments, the third judgment held that they were simply the dressing up in constitutional garb of different outcomes in the Supreme Court of Appeal petitions. This, the third judgment found, was to overcome the binding precedent of this Court, which states that (a) this Court’s jurisdiction is not engaged where there are two different outcomes in respect of leave to appeal applications of different litigants; and (b) the misapplication of an established legal principle does not engage this Court’s jurisdiction. The third judgment further held that conflicting outcomes do not equate to infringement of constitutional prescripts. As this Court made plain in Metcash, “the Constitution does not and could hardly ensure that litigants are protected against wrong decisions”.

Finally, the third judgment cautioned against a possible opening of the floodgates in this Court as a result of the jurisdictional findings in the first and second judgments.

The fourth judgment

The fourth judgment, penned by Bilchitz AJ, agreed with the first judgment with qualifications. It agreed that the constitutional jurisdiction of this Court was engaged and that leave to appeal should be granted. It preferred the approach of the first judgment to the second judgment, given that both the pleadings and the oral argument were structured in terms of the applicants’ fundamental rights. The relief provided by the first judgment also corrected the central violation of rights that had taken place and required all the accused persons to be placed in the same position by having their appeal heard by the High Court in Mthatha. The fourth judgment further added that there were good reasons of fairness and practicality for the applicants’ appeal to be heard with Mr Grifhs’.

However, the fourth judgment departed from the first judgment in two respects. First, it refused to affirm the principles articulated in Metcash and expressed the view that that judgment may have crossed the threshold of being ‘clearly wrong’. It also took issue with the third judgment’s transposition of this troubling precedent in the criminal arena. The fourth judgment rejected the notion that divergent decisions which result in differential treatment of the kind at issue must be accepted in the judicial process, especially when the right to appeal is designed to enable higher courts to address inequitable outcomes.

The second qualification was that the fourth judgment did not accept the first judgment’s holding that, in all cases, applicants may not appeal to this Court against the decision of the President of the Supreme Court of Appeal in terms of the proviso. The fourth judgment found that it was unnecessary to make a definitive pronouncement in this regard and that compelling reasoning to the contrary had been provided in the second judgment. The fourth judgment also disagreed with the dicta in the first judgment concerning the contour of exceptional circumstances under section 17(2)(f).

The fifth judgment

The fifth judgment, penned by Zondo CJ, agreed with the third judgment with qualifications.

With regard to the decision of the President of the Supreme Court of Appeal refusing the application for reconsideration, the fifth judgment held that even if that decision were appealable, the applicants did not apply for leave to appeal against it. Consequently, that decision was not before this Court. As the first judgment made plain, the applicants conceded that they did not apply for leave to appeal.

Apart from these qualifications and with the elaborations contained therein, the fifth judgment concurred with the dismissal order of the third judgment.

Therefore, leave to appeal was granted, and the appeal succeeded in part. The order of the Supreme Court of Appeal was set aside and substituted with the following: firstly, the applicants’ petition for leave to appeal in terms of section 309C of the Criminal Procedure Act 51 of 1977 against both conviction and sentence was granted. Secondly, the applicants were granted leave to appeal to the High Court of South Africa, Eastern Cape Local Division, Mthatha. Finally, if practically possible, their appeal should be considered together with that of Mr Lungisa Grifhs.

The Full judgment  here