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[2011] ZAGPJHC 95
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Moremoholo v S (A 100/2008) [2011] ZAGPJHC 95 (26 August 2011)
REPORTABLE
IN
THE SOUTH GAUTENG HIGH COURT
(JOHANNESBURG)
CASE NO: A 100/2008
DATE:26/08/2011
In
the matter between
LEPHOI
MOREMOHOLO
…........................................................................
APPELLANT
and
THE
STATE
…...........................................................................................
RESPONDENT
Criminal
Procedure – Appeal - Record of proceedings in the court below –
exhibit (a transcript of proceedings in a bail
application prior to
hearing in trial court in which the appellant had given evidence -
only evidence linking appellant to robbery
he was charged with) lost
after proceedings in trial court – fresh transcript of bail
proceedings subsequently prepared and
made available to court of
appeal - Powers of court on appeal - s 22 read with s 304 (2) and
s
309
(3) of the
Criminal Procedure Act 51 of 1977
– not
appropriate for court of appeal in circumstances of this case to
accept fresh transcript of bail proceedings by mere
production
thereof in terms of
s 235
(1) of the CPA - matter remitted to trial
court for allowing evidence to be led afresh – directions in
remittal order aimed
at full ventilation of issue.
J
U D G M E N T
VAN
OOSTEN J:
[1] This appeal is concerned with the
powers of the Court on appeal in regard to a lost transcript of bail
proceedings which was
handed in at the trial as an exhibit,
containing the only evidence linking the appellant to the commission
of the crime he had
been convicted of. The appellant was convicted in
the Regional Court, Johannesburg of robbery with aggravating
circumstances and
sentenced to 15 years imprisonment. He now appeals
against both conviction and sentence with leave of this Court granted
on petition.
[2] The evidence adduced at the trial
proved beyond reasonable doubt the fact of an armed robbery of cash
in transit as alleged
in the charge sheet. The exact details thereof
are not relevant for present purposes. None of the state witnesses
was able to identify
the robbers or to implicate the appellant in any
other way. The only evidence linking the appellant to the robbery
consisted of
his earlier evidence given in an application for bail
after his arrest pending trial which the prosecutor presented to the
court
a quo by way of a certified transcript of those proceedings. In
his evidence in the bail proceedings the appellant
inter
alia
admitted that he had been
in possession of and driving a Bantam
bakkie
(the vehicle) on the day of the incident. The vehicle it became
common cause at the trial, was involved in the robbery. The evidence
adduced by the State revealed that the selfsame vehicle conveyed some
of the robbers as well as the spoils of the robbery shortly
after its
occurrence, that it was chased by the police who had also fired shots
at it and that it was eventually found abandoned
with several bullet
holes in the body of the vehicle. Before I deal any further with the
evidence it is appropriate to refer to
the proceedings in the court a
quo when the prosecutor sought to hand in the transcript of the bail
proceedings. In this regard
the record of the proceedings in the
court below, reflects the following:
PROSECUTOR:
Your worship the state is in possession of a transcript of the bail
application ready and is requesting that it be handed in as
exhibit
your worship.
COURT:
Is it a certified copy?
PROSECUTOR:
Yes, your worship it is certified on the last page. Your worship I
see that it is, it says I the undersigned but I do not see
any
signature on the last page.
COURT:
Is there a name of the person or the transcriber?
PROSECUTOR:
Yes, A Lightfoot but it is printed your worship.
COURT:
Let me have a look at it. Mr Mohale it does not bear the signature
of the transcriber, only the name of the transcriber. Is
there any
objection by the defence if it is submitted as it is?
ADV
MOKHALE:
(Inaudible).
COURT:
Yes.
ADV
MOKHALE:
Well we do not have any objections to that.
COURT:
Thank you. Then it is admitted as EXHIBIT D.
PROSECUTOR:
D your worship.
COURT:
Was it consists of 47 pages unless the defence dispenses with a
reading out of it, it must be read into the record. Is that
necessary Mr Mokhale?
ADV
MOKHALE:
No, it is not necessary … (intervenes)
COURT:
Thank you.
ADV
MOKHALE:
Your worship (inaudible).
COURT:
You may proceed with the case.
[3] After closure of the State’s case
an application for the discharge of the appellant in terms of s 174
of the Criminal
Procedure Act 51 of 1977 (the CPA) was made but was
dismissed. The appellant testified and in essence reiterated the
version he
had given in the bail proceedings. In essence he alleged
that he had been the victim of a hijacking and that the hijackers had
forced him to drive the vehicle. The court a quo rejected the
appellant’s version as improbable and therefore false and
concluded
in finding that the appellant participated in the robbery.
An application for leave to appeal was lodged. At the hearing thereof
it emerged that the exhibit “D” had gone astray. Leave to
appeal was refused. More than two years later and while the
present
appeal was pending, an affidavit deposed to by the control officer of
the criminal appeals section at the Magistrates’
Court
Johannesburg, was filed stating that exhibit “D” could
not be found. A fresh transcript of the bail proceedings
certified
and signed by another transcriber has been prepared and is now before
us.
[4] In the heads of argument filed on
behalf of the appellant the submission is made that exhibit “D”
in the absence
of the transcriber’s signature to the
certification, in any event, was wrongly allowed in evidence for want
of compliance
with s 235 (1) of the CPA and that the trial court
therefore should have discharged the appellant in terms of s 174 of
the CPA
at the end of the State’s case. In argument before us
the submission was not persisted with and in any event does not bear
scrutiny: the transcript and its contents were clearly admitted by
counsel for the appellant as is apparent from the passage quoted
above. The admission was conclusive and accordingly rendered it
unnecessary for the State to adduce any further evidence as to
the
admissibility of the transcript. This brings to the fore the real
issue in this appeal which is whether the loss of exhibit
“‘D”
can now, on appeal, be cured and if so, how?
[5] The court of appeal is endowed with
wide powers in the consideration of an appeal. Those include in
terms of s 22 read with
s 304 (2) and s 309 (3) of the CPA, t
he
court of appeal hearing further evidence itself or remitting the
matter to the court
a quo
with
directions regarding the hearing of further evidence (
Cf
Hiemstra’s
Criminal Procedure
30-43
et
seq
).
The loss of exhibit “D” in my view is nothing but a
technicality which in the interests of justice, ought to be remedied.
The original recording of the evidence presented at the bail
proceedings is still available and as I have mentioned, has now again
been transcribed. At first blush the simple option seems to be for
this Court to accept the substitution of exhibit “D”
with
the recent transcript on the mere production thereof under the
provisions of s 235 (1) of the CPA. I am however, not satisfied
that
this would be the appropriate procedure as it pre-supposes that the
contents of the present transcript in all respects is
similar to that
of exhibit “D”. On the probabilities there does not
appear any reason to suspect any real differences
in the
transcriptions. In the absence of exhibit “D” and in
order to avoid any possible prejudice to the appellant,
due
allowance, in my view, should however, be made for the possibility of
differences. The purpose of the substitution of exhibit
“D”
will be to ensure as far as possible, that an accurate transcript of
the bail proceedings is presented to the court.
The alternative and
in my view most practical option, in fairness to the State and the
appellant, is to remit the matter to the
trial court with directions
aimed at a full ventilation of this aspect. As is apparent from the
directions in the order I propose
to make, the appellant at the
re-trial on this aspect will be afforded the opportunity not only to
challenge the admissibility
of the transcript or such other evidence
as the State may present on this aspect but also to lead such
evidence as may be relevant
on the contents thereof. Finally, it
bears mention that both the attorney for the appellant and counsel
for the respondent agreed
that the order that follows is appropriate.
[6] The following order
is made:
1. The appellant’s
conviction and sentence are set aside.
2. The matter is
remitted to the trial court
2.1 to allow the State
to prove the content of the proceedings at the hearing of the
appellant’s application for bail before
the Regional
Magistrate, Mr du Plessis, on 8 December 2005, subject to the
appellant’s rights of cross-examination.
2.2 to allow the
appellant to testify or call any witnesses whose evidence may be
relevant to the proceedings referred to in paragraph
1 above.
2.3 to consider the
further evidence led, hear argument thereon and give a decision
de
novo
.
________________________________
FHD
VAN OOSTEN
JUDGE
OF THE HIGH COURT
I agree.
________________________________
L
WINDELL
ACTING
JUDGE OF THE HIGH COURT
Attorney for the Appellant J
Penton
(Johannesburg Justice Centre)
Counsel for the Respondent Adv CCW
Steyn
Date of hearing `18 August 2011
Date of judgment 26 August 2011