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[2010] ZAWCHC 518
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Melgis v S (A446/09) [2010] ZAWCHC 518 (29 October 2010)
In
the High Court of South Africa
(Western
Cape High Court, Cape Town)
Case
No: A446/09
In
the matter between:
Len
Melgis
….....................................................................................................
Appellant
And
The
State
…...................................................................................................
Respondent
Judgment
delivered: 29 October 2010
Brusser,
AJ
[1]
This is an appeal against the decision of the Regional Court in
Wynberg more than nine years ago on 23 July 2001 in terms whereof
the
Appellant was convicted of one count of indecent assault, two counts
of rape and one of assault with the intent to do grievous
bodily harm
and on 24 July 2001, was sentenced to an effective twenty years
imprisonment.
[2]
The Appellant appeals against the conviction and the sentence with
the leave of the court a quo which was granted on 2 October
2008.
[3]
The complainant who is the appellant's step daughter, Anthea Dick,
was almost 11 years old when the incident occurred in respect
of
which the Appellant was convicted of indecent assault and younger
then 16 during the period when the incidents occurred in respect
of
which the Appellant was convicted of her rape and also assault with a
knife.
[4]
The
complainant and her aunt gave evidence for the state and the
Appellant, his wife, who is also the mother of the complainant,
and
one John Malgas gave evidence on behalf of the Appellant.
[5]
The record of the proceedings a quo is incomplete in that the
evidence in chief and part of her evidence under cross-examination
of
the complainant is absent therefrom. We were informed by Mr. van Wyk
who appeared on behalf of the state that this was because
the tapes
containing this evidence were missing.
[6]
The senior administrative clerk of the Wynberg magistrates' court
deposed to an affidavit and indicated that the record could
not be
reconstructed because of the loss of the two tapes containing the
missing evidence. The magistrate and prosecutor were also
not able to
be of any assistance because they no longer had their notes of the
trial.
[7]
It was contended on behalf of the state that the even though the
record was admittedly incomplete there was sufficient information
there for a proper consideration of the appeal.
[8]
Whilst it is possible to deduce much of the complainant's missing
evidence from the magistrate's judgment, without a proper
record of
the complainant's actual evidence delivered at the trial, which
evidence was disputed by the appellant and the witnesses
on his
behalf, this court cannot consider the entire appeal properly.
[9]
In S v Marais
1966 (2) SA 514
(T) there was a similar impasse - a
lost record with no prospect of reconstructing one. That being the
situation, the court at
517A-B observed that:
'If
during a trial anything happens which results in prejudice to an
accused of such a nature that there has been a failure of justice,
the conviction cannot stand. It seems to me that if something
happens, affecting the appeal, as happened in this case, which makes
a just hearing of the appeal impossible, through no fault on the part
of the appellant, then likewise the appellant is prejudiced,
and
there may be a failure of justice. If this failure cannot be
rectified, as in this case, it seems to me that the conviction
cannot
stand.'(See also: In S v Joubert 1991 (1)SA119(A))
[10]
This principle applies only where 'the lost portion (of the record)
contains evidence which is of material importance to the
adjudication
of an appeal.' (See: S v Fredericks 1992 (1) 561 (c) at 562 b-c.)
[11]
The missing evidence of the complainant is 'of material importance'
to a determination of the appeal on the charges of indecent
assault,
rape (save for what is set out hereunder) and assault with the intent
to do grievous bodily harm.
[12]
Furthermore there was no suggestion by the state that the portion of
the record that went missing was the fault of the Appellant.
[13]
Plainly the aforementioned factors also have Constitutional
implications. (See section 35 (3) (O) of the Constitution)
[14]
As regards the charges of rape, it was common cause at the trial and
on appeal that
a)
The Appellant had sexual intercourse with the complainant on a number
of occasions, and at least on two such occasions, prior
to the birth
of her child on 20 May 1997 when she was fifteen years old;
b)
The Appellant was the father of the child; and
(c)The
complainant was born on 26 February 1982.
[15]
The common cause evidence is therefore that the complainant was to
the knowledge of the appellant under the age of 16 when
he had sexual
intercourse with her. At the time he was in his late 30s and was
married to the complainant's mother.
[16]
Ms Bayat, who appeared on behalf of the appellant on appeal, stated
that she agreed with the submission on behalf of the state
that the
appellant is guilty of contravening the then section 14 of the Sexual
Offences Act 23 of 1957, which was a competent verdict
on a charge of
rape.
[17]
In the circumstances:
The
appeal against the conviction and sentence in regard to the indecent
assault, and the assault with the intent to do grievous
bodily harm
must be allowed; and
The
appeal against the conviction in regard to the two counts of rape is
successful but only to the extent that the appellant
must be
convicted of two counts of statutory rape.
[18]
The appellant must be sentenced afresh on the two convictions under
section 14 (1) (a) of Act 23 of 1959. The conduct of the
appellant
has been atrocious on his own version. He took advantage of a young
girl in a most callous way. A sentence of four years
imprisonment is,
in the circumstances an appropriate sentence.
The
following orders are consequently proposed:
1.
The appeals against the conviction on the counts of indecent assault
and assault with the intent to do grievous bodily harm succeed
and
the convictions and sentences on those counts are set aside.
2.
The conviction on two counts of rape is set aside and the appellant
is convicted on two counts of contravening section 14 (1)
(a) of Act
23 of 1957.
3.
On the latter two counts the appellant is sentenced to 4 years
imprisonment on each count, such sentences to commence on 24 July
2001 and be served consecutively.
BRUSSER, AJ
Acting
Judge of the High Court
I
agree and it is so ordered.
LOUW,
J
Judge
of the High Court