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[2010] ZAWCHC 564
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Abdul v S (A556/2010) [2010] ZAWCHC 564 (19 November 2010)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE HIGH COURT,
CAPE TOWN)
CASE
NUMBER
:
A556/2010
DATE
:
19 NOVEMBER 2010
In the matter between:
RASHAAD
ABDUL
…...........................................................................
Appellant
and
THE
STATE
….................................................................................
Respondent
J U D G M E N T
ERASMUS,
J
:
This
matter is before us on appeal. The appellant was convicted and
sentenced on 16 April 2003 and sentenced to a term of 15 years
imprisonment. Very little is said in the record as to why there was
a lapse of a period of over six years before leave was granted.
It
seems as if the record of proceedings of the court a
quo
had
gone missing.
I have a concern about
the records in the Regional Court going missing, as this is not the
first, and I take it will not be the
last of these matters, and it
seems that in most of these matters the appellants bring their
appeals late. Irrespective of the
ultimate order of this Court, I
would urge the Department of Justice to urgently look into the
archiving of records in criminal
matters where people were sentenced
to a long term imprisonment.
I now turn to the appeal
itself. On the sentence issue, the magistrate was unable to
reconstruct the record and, therefore, was
unable to comment on the
sentence imposed. We are in a similar position. We do not have
sufficient information before us to deal
with the sentence. I
believe it is in the interest of justice that the imposed sentence
be set aside and the matter be referred
back to the trial court to
consider sentence afresh. The order that I make is the following:
The conviction is
confirmed.
The imposed sentence of
16 April 2003 is set aside.
The matter is referred
to the Regional Court to consider sentence afresh.
The appellant shall
remain in custody, of course now as
an awaiting trial
prisoner, if he his not serving any other sentence, until such time
that he is brought before the Regional Court
magistrate.
That is the order of the
Court.
ERASMUS, J
KUSCHKE
AJ: I agree
KUSCHKE
AJ