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[2020] ZAWCHC 48
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Chaz v S (A10/20) [2020] ZAWCHC 48 (2 June 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NO: A10 / 20
In
the matter between:
FRANK
CHAZ
Appellant
and
THE
STATE Respondent
Coram:
Goliath, DJP and Wille, J
Date
of Hearing: Friday 8 May 2020
Date
of Judgment: Delivered via email on the 2
nd
of June 2020
JUDGMENT
GOLIATH,
DJP;
[1]
Due
to the current lockdown, the legal representatives agreed that this
appeal could be determined on the papers filed off record,
without
the need for the hearing of any oral argument.
This matter concerns
the record of a criminal trial that has been misplaced. The appellant
was convicted of -
dealing
in dangerous dependence producing substances
[1]
-
and
was sentenced on the 1
st
of June 2007 to a period of (10) years imprisonment, (3) years of
which were suspended for a period of (5) years, subject to certain
conditions.
[2]
After he was sentenced, the appellant applied for and was granted
leave to appeal against both his conviction and sentence.
He was
granted bail pending the finalisation of his appeal. On the 5
th
of June 2007, the appellant’s erstwhile attorney of record,
[2]
communicated with the -
Cape
Town Magistrates’ Court, Appeal Clerk
-
and requested that arrangements be made for a transcription of the
court record. It was established that the proceedings were
mechanically recorded and on the 25
th
of June 2007, the cassette recordings were sent to be transcribed.
For some inexplicable reason, these cassette recordings were
returned. Thereafter, these cassette recordings could not again, be
located.
[3]
The trial Magistrate’s documents and notes could also not be
located. On the 10
th
of February 2010, Mr Weber informed the relevant clerk that he was
experiencing difficulties in making contact with his client.
Thereafter, the trial Magistrate made some enquiries about the
appeal, but the issue relating to the missing record and cassettes
remained unresolved. Significantly, at this time, no effort was made
to reconstruct the record. During this time, Mr Weber again
indicated
that he was unable to contact his client in order to obtain further
instructions, regarding the prosecution of his appeal.
[4]
On the 19
th
of May 2017, a notice
[3]
was
sent to the appellant instructing him to report to the Magistrate’s
Court in Cape Town. In the notice, it was recorded
that the appeal
was never submitted to the High Court for prosecution, as the
appellant’s attorney of record had withdrawn
and the appellant
could not be located. The appellant duly appeared on the 2
nd
of August 2017 and was legally represented by Mr Mathewson.
[5]
At this hearing, the appellant applied for the re-instatement of his
bail, pending the finalization of his appeal. An enquiry
was
conducted by the Magistrate and as a result, it became apparent that
the relevant clerk had failed to transmit a copy of the
record to the
Registrar of the High Court. At this enquiry, a finding was made that
the appellant had abandoned his appeal and
his bail was accordingly
not re-instated. On the 2
nd
of February 2018, Acting Judge Slingers (as she then was), set aside
the Magistrate’s decision in this connection and released
the
appellant on bail, pending the prosecution of his appeal.
[6]
Thereafter, the Judge President set aside the findings made by the
Magistrate to the effect that the appellant had abandoned
his appeal
and ordered that the relevant clerk submit the record of criminal
proceedings to the High Court within a period of (10)
days from the
date of his order. He further directed that the appellant formally
prosecute his appeal within (14) days of the receipt
of the record of
proceedings.
[7]
On the 14th of January 2020, an -
incomplete
record
- was filed in that same did not make any reference to the merits of
the case, nor did it contain an actual transcript of the proceedings.
Despite a diligent search the relevant clerk was unable to file a
complete and satisfactory record, of the proceedings. Further,
a
re-construction of the record could not be facilitated as the
Magistrate’s notes and documentation could not be located.
[8]
As a consequence, the relevant clerk was unable comply with the duty
to transmit a proper and complete the record of proceedings
to the
Registrar of the High Court in accordance with the order made by the
Judge President. The respondent summarised the position
in this
connection, as follows;
‘
the tapes are missing,
the Magistrate’s notes disappeared, the prosecutor is no longer
in the employ of the National Prosecuting
Authority, the docket
disappeared, part of the record that was transcribed disappeared, and
Mr Weber, the appellant’s former
attorney’s file, has
since been destroyed
’
[9]
The respondent conceded that there were indeed problems in connection
with the record this matter, but suggested that the appellant
also
shoulder some of the responsibility for what had ultimately
transpired. The respondent takes the position that, the appellant
failed to take the appropriate steps to prosecute his appeal and
adopted a -
supine
attitude
- towards the hearing of his appeal.
[10]
Section 309(B)(4)(a) of the Act
[4]
,
dictates that if an application for leave to appeal under subsection
(1) is granted, the Clerk of the Court -
must
- in accordance with the rules of the court, transmit copies of the
record and of all the relevant documents to the Registrar of
the High
Court, concerned. With reference to the duty placed on the parties in
the preparation of the record of appeal, the appellant’s
counsel referred to the matter of
Zondi
[5]
,
where it was held, inter alia, as follows:
‘
However, the
administrative, logistical and financial implications of placing the
primary responsibility for preparing an appeal
record on the
appellant would probably, in the majority of cases, negate her or his
constitutional right to an appeal since the
State, through its
officials, employees and/or sub-contractors, not only records all
Court proceedings, but also has custody of
all relevant recordings,
notes, transcripts, statements and other documentary information, as
also all exhibits. The provisions
of Rule 67 supra which place the
primary responsibility for providing a record on appeal on the State
are therefore fair, practical
and convenient …’
[11]
In
Chabedi
[6]
,
the Supreme Court of Appeal held that the record of proceedings in
the trial court is of cardinal importance on appeal, as it
forms the
whole basis for the re-hearing by the Court of Appeal. Thus, if the
record is inadequate, it will lead to the conviction
and sentence
being set aside. This is, however, not an absolute rule. The
requirement is only that the record must be adequate
for the
consideration of the appeal and not a perfect record of everything
that was said at the trial. The Supreme Court of Appeal
thus created
a -
two
pronged test
- to determine if a record is indeed, adequate for the purposes of
the hearing of an appeal. The test is thus whether the defects
are so
serious that a proper consideration of the appeal is not possible by
looking at the nature of the defects in the particular
record and the
issues to be decided on appeal.
[12]
In
Sebothe
[7]
,
the
full court added a further reference to the Constitution in the
following terms;
‘
The Constitution of the
Republic of South Africa, 1996, provides, inter alia, through s 35,
that an accused person has a right to
a fair trial, which includes a
right to appeal or review. If the appeal Court or the review
Court is not furnished with a
proper record of proceedings, then the
right to a fair hearing of the appeal or review is encroached upon
and the matter cannot
properly be adjudicated’
[13]
In
Phakane
[8]
,
the
Constitutional Court considered the issue of an inadequate record of
the trial proceedings and held that in such a case, the
conviction
and sentence or the entire trial proceedings had to be set aside. The
inability to exercise a right of appeal because
of an inadequate
record is a breach of the constitutional right to a fair trial and
could lead to the conclusion that the proceedings
have not been in
accordance with justice.
[14]
Given the loss of all the recorded evidence in this matter, it is
clear that the record is inadequate for a proper consideration
of the
appeal. The nature of the defects in the record are such that the
court cannot adjudicate upon the matter and make any findings
on the
issues to be decided. In these circumstances, it is inevitable that
the appellant’s conviction and sentence fall to
be set aside.
Both counsel are in agreement that there cannot be a fair trial in
the absence of an adequate record of the proceedings.
They are both
ad
idem
and concede that the appellant’s conviction and sentence, fall
to be set aside.
[15]
In the result the following order is made;
1.
‘
That
the appeal succeeds and both the appellant’s conviction and
sentence is set aside’
2.
‘
That
the Clerk of the Court is ordered to refund to the appellant the
amount which he paid in order to secure his release on bail’
___________________________
GOLIATH,
DJP
[Deputy
Judge President]
I
agree,
___________________________
WILLE,
J
[Judge
of the High Court]
[1]
A contravention of
section 5
(b)
of the
Drugs and Drug Trafficking Act, 140 of 1992
[2]
Mr Weber
[3]
In terms of
section 307(3)(b)
of
Act 51 of 1977
[4]
The
Criminal Procedure Act 51 of
1977
[5]
S v Zondi
2003 (2) SACR 227
(W)
at 243
[6]
S v Chabedi
2005 (1) SACR 415
SCA at 417
[7]
Sebothe v
S
2006
(2) SACR 1
(T)
- para [8]
[8]
Phakane v S
[2017] ZA CC 44