THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 179/2022

In the matter between:
LUFUNO MURAVHA APPELLANT

and

MINISTER OF POLICE RESPONDENT

Neutral citation: Muravha v Minister of Police (179/2022) [2024] ZASCA 11 (30
January 2024)

Coram: MOCUMIE, CARELSE, HUGHES and GOOSEN JJA and TOKOTA AJA

Heard: 3 November 2023

Delivered: 30 January 2024

Summary: Civil procedure – record – lost civil trial record – reconstruction
impossible – parties requesting court to hear appeal on the record as it stood
(pleadings and judgment of the trial court only available ) – an appeal court to be
convinced that on the available record the trial court’s conclusion on the facts was
erroneous – appeal succeeds – matter to start de novo before another presiding judge.

2

___________________________________________________________________

ORDER
___________________________________________________________________
On appeal from: Limpopo Division of the High Court, Polokwane (Makwela AJ with
Semenya DJP and Muller J concurring, sitting as a court of appeal):
1 The appeal is upheld with no order as to costs.
2 The order of the full court is set aside and replaced with the following order:
‘a. The matter is remitted to the trial court to start de novo before another
presiding judge.
b. Costs are reserved.’
_________________________________________________________

JUDGMENT
_________________________________________________________
Carelse JA (Mocumie, Hughes and Goosen JJA and Tokota AJA concurring):
[1] This case concerns a lost record of a civil trial . The appellant, Mr Lufuno
Muravha (plaintiff in the trial court ) unsuccessfully sued the respondent, the Minister
of Police , for the sum of R900 000.00 in the Limpopo Division of the High Court,
Thohoyandou (the trial court). The trial court (per Phatudi J) dismissed the appellant’s
claim with costs, and subsequently refused leave to appeal.

Proceedings in the trial court
[2] The record of the trial proceedings was lost in its entirety and was not
reconstructed at the time of the hearing of th is appeal. I will return to the question of
the lost record later on in the judgment. The following evidence can be gleaned from
the judgment of the trial court. The appellant and the respondent each led the evidence
of two witnesses.1 It was common cause that the appellant was shot by a member of

1 The judgment of the court a quo page 81 and 82 stated as follows:
‘[6] The plaintiff testified that on the 08 August 2014, there was unrest in and around the surrounding
villages at Phadzhima Dzumba-Thoho, Limpopo Province. He had a motor car scrapyard workshop and

cash loan business operating at the workshop premises situated at Phadzhima -Madzhadzhani,
Limpopo Province. He kept a number of people ’s motor vehicles brought for repairs at the workshop
premises. He at or around 19h30 saw a group of people come running and screaming into his workshop.
He stopped what he was doing and went to “push” the said people out of his workshop. While “pushing”

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the South African Police Service (who was acting in the course and scope of their
employment). The shooting took place at his motor car scrapyard workshop. The
appellant said that a number of protesters ran into his business premises, followed by
the police. He tried to push the protesters out of his business premises. During the
commotion, he was shot by a member of the police with a rubber bullet. The appellant
denied that he was part of the protest action and that he pelted stones at the members
of the police.

[3] On the other hand, according to the summary of the evidence by the trial court,
the respondent’s witnesses disputed the place where the shooting took place .
According to the police they were requested to deal with the protest action. The police
said that the road near ‘Mampa’s place’ was blockaded with scrap metal. At this place
the police were ordered to shoot ‘rubber bullets’ at the protesters because police lives
were in danger.2

the people out of his workshop, a big police Motor vehicle (Nyala) appeared. It stopped in front of the
workshop. Two police alighted, stood on the ground and pointed their firearms towards the said people
who came running into his workshop. The police fired shots towards the people. He was hit by one
rubber bullet. He informed Netshituka who was with him that he had been shot at. Netshituka informed
the police what they just did. The police then said “sorry”. They thereafter board inside Nyala and drove
off.
[7] He conceded during cross-examination that the police would not have easily differentiated him
from th e strikers or people who came running into his workshop because he was approximately 4
meters behind those people. He however, denied to have been part of the people who pelted the police
with stones.
[8] Samuel Netshituka (Netshituka) who was with the plainti ff at the time of the incident,

[8] Samuel Netshituka (Netshituka) who was with the plainti ff at the time of the incident,
corroborated the plaintiff ’s evidence in as far as the number of protesters who came running into the
workshop. He testified that he was assisting the plaintiff to “push out” those who ran into the workshop
when a big police motor vehicle (Nyala) came and became stationary alongside the plaintiff’s workshop
gate. The said Nyala was approximately 150 meters away from the workshop as opposed to 200 meters
as testified to by the plaintiff. He as well estimated the distance between the protesters who were in the
yard and them to have been approximately 4 meters when they were “pushing them out of the yard”.’
2 ‘[9] Captain Milingoni Mudau (Mudau) testified in rebuttal to the plaintiff’s version that she and six other
Public Order Police (POPS) (she referred that as a ‘section’) were in a big marked police motor vehicle
restore order at Phadzhima. They were informed that protesters are heading to Ms Mampa’s residence
and SAPS satellite office. They went to the area. The found the road being blockaded with big stones,
big blocks of wood/trees, burning tyres and other objects. On their arrival at the villages, a number of
protesters started to pelt stones at them.
[10] She used a loud speaker to inform the protesters who they were and their purpose being to restore
order. She ordered them to disperse. The protesters resisted. She ordered her section to use
“illuminating Para” to illuminate light within the circumference of the area they were at because it was
already dark. Protesters started to ‘run’ off while others pelted stones at them. They proceeded driving
towards Mampa’s residence. They, at the off ramp on their way to Mampa ’s residence, found the road
blockaded with a scrap of a moto r vehicle, big stones and other objects. They used Nyala’s scrapper
affixed to its front to remove some of the stones and the scrap of a motor vehicle off the road. The

situation became worse. Protesters pelted stones at them. She ordered her section to use “stan-
grenade” to disperse protesters, becau se their lives were in danger. They managed to remove the
objects used to blockade the road and manage to proceed to Mampa’s place.’

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[4] The location where the shooting took place and whether or not the appellant
was part of the protesters were strongly disputed. Because of these disputes the trial
court accepted that the appellant and the respondent’s versions were mutually
destructive, and in dealing with the disputed facts the trial court applied the well-known
principles on conflicting versions set out in Stellenbosch Farmers’ Winery Group Ltd
and Another v Martell et Cie SA and Others.3 The trial court accept ed the version of
the respondent ’s witnesses and, after considering the probabilities in the case,
dismissed the appellant ’s claim with costs. On petition to this Court on 27 October
2017,4 leave to appeal was granted to the Full Court of the Limpopo Division of the
High Court, Polokwane (the full court) against the dismissal.

Proceedings before the full court
[5] In preparation of the appeal before the full court, the appellant discovered that
the entire trial record was lost. The timeline bears mention. The notice of appeal was
only filed on 14 March 2019, some 17 months after leave was obtained. It is not
disputed that on 26 November 2020, some two years and eight months late r, the
record of appeal which included the pleadings, the judgment and order of the high
court was filed. Notwithstanding the missing record, on 14 May 2021, the full court (per

3 Stellenbosch Farmers' Winery Group Ltd and Another v Martell et Cie SA and Others [2002] ZASCA
98; 2003 (1) SA 11 (SCA) para 5 states as follows:
‘On the central issue, as to what the parties actually decided, there are two irreconcilable versions. So
too on a number of peripheral areas of dispute which may have a bearing on the probabilities. The
technique generally employed by courts in resolving factual disputes of this nature may conveniently
be summarised as follows. To come to a conclusion on the disputed issues a court must make findings

on (a) the credibility of the various factual witnesses; (b) their reliabil ity; and (c) the probabilities. As to
(a), the court’s finding on the credibility of a particular witness will depend on its impression about the
veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in
order of importance, such as (i) the witness ’s candour and demeanour in the witness -box, (ii) his bias,
latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was
pleaded or put on his behalf, or with established fact or with his own extra curial statements or actions,
(v) the probability or improbability of particular aspects of his version, (vi) the calibre and cogency of his
performance compared to that of other witnesses testifying about the same incident or events. As to
(b), a witness’s reliability will depend, apart from the factors mentioned under (a)(ii), (iv) and (v) above,
on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity
and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the
probability or improbability of each party ’s version on each of the disputed issues. In the light of its
assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened
with the onus of proof has succeeded in discharging it. The hard case, which will doubtless be the rare
one, occurs when a court’s credibility findings compel it in one direction and its evaluation of the general
probabilities in another. The more convincing the former, the less convincing will be the latter. But when
all factors are equipoised probabilities prevail.’
4 On petition before Leach JA and Rogers AJA.

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Makwela AJ with Semenya DJP and Muller J concurring) heard the matter and, on 19
October 2021, dismissed the appeal.

[6] It is not disputed that the appellant did not file its notice of appeal and the trial
record in terms of rules 49(2) and 49(6) (a).5 The full court granted the appellant
condonation for the late filing of its notice of appeal and the late filing of the pleadings
as well as the judgment of the trial court. On the question of the missing record, the
full court, without stating what steps the appellant took to obtain the missing record ,
held that the appellant was not the custodian of the record and that he did everything
within his power to secure the records from the custodian and should not be punished
for something that is beyond his control. For the se reasons, the full court proceeded
to hear the appeal.

[7] In its notice of appeal, the appellant contended that the trial court misdirected
itself in the following instances: when it failed to decide the matter on the ple aded
ground that the respondent’s employees intentionally assaulted him ; pertinently, the
appellant complain ed that the trial court misdirected itself on the facts , on the
probabilities and on the issue of costs.

[8] The appellant did not amend his notice of appeal to include the added difficulty
of the missing record. The trial record was missing as far back as 26 November 2020.
During argument the appellant submitted that he would not receive a fair trial , since
the trial record was missing. In its judgment on the record the full court stated:
‘The issues raised in this appeal are narrow. The appellant challenges the trial’s court alleged
failure to deal with the matter on the pleaded facts of intention. Furthermore, the appellant and
the respondent seem not to be dissatisfied with the trial court’s summary of the facts. It is on

5 Rule 49(2) of the Uniform Rules of Court provides that:

5 Rule 49(2) of the Uniform Rules of Court provides that:
‘If leave to appeal to the full court is granted the notice of appeal shall be delivered to all the parties
within 20 days after the date upon which leave was granted or within such longer period as may upon
good cause shown be permitted.’
Rule 49(6)(a) of the Uniform Rules of Court provides that:
‘Within 60 days after delivery of a notice of appeal, an appellant shall make written application to the
registrar of the division where the appeal is to be heard for a date for the hearing of such appeal and
shall at the same time furnish him with his full residential address and the name and address of every
other party to the appeal and if the appellant fails to do so a respondent may within 10 days after the
expiry of the said period of 60 days, as in the case of the appellant, apply for the set down of the appeal
or cross-appeal which he may have noted. If no such application is made by either party the appeal and
cross-appeal shall be deemed to have lapsed: Provided that a respondent shall have the right to apply
for an order for his wasted costs.’

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this basis that I find that the appeal court may proceed with hearing of the appeal on what has
been placed before it. This will not in any way affect the appellant ’s right to [a] fair trial.’ (My
emphasis.)
This finding that the appellant and the respondent agreed with the trial court ’s
summary of the facts is dealt with below.

[9] In the summary of facts by the trial court, it is apparent that at issue was the
location where the shooting took place. T he trial court re corded that the appellant ’s
evidence was that members of the police were in a Nyala police vehicle, approximately
200 metres from him and 4 metres from the protesters when he was shot. Whereas
the appellant’s witness stated that members of the police were 150 metres away when
the appellant was shot. The trial court relied on this evidence , which is disputed , in
order to make its probability findings. It is not clear whether the trial court considered
the reliability of the appellant and his witness’s evidence in respect of their
observations. The shooting took place at night . As to the distance , it is not clear
whether the trial court tested the accuracy or veracity of the appellant and his witness’s
observations in this regard.

[10] Without the record (evidence in chief, cross-examination and re-examination),
the full court would not have been in a position to determine: whether the appellant’s
and/or his witness’s version on this issue was disputed; the location of the shooting
and whether the appellant was one of the protesters. The record of this evidence was
necessary before the full court could determine the outcome of the appeal. It is also
not clear whether there was a concession on the facts, because the grounds of appeal
unequivocally state that, ‘[t]his court should interfere with the high court findings of
facts [for the following reasons ]. The High Court committed a misdirection [in] its
finding that the Appellant testified that the Police were 15 0 metres away from where

finding that the Appellant testified that the Police were 15 0 metres away from where
he was. The Appellant’s evidence was that his workshop is 200 metres from the tar
road not that the police where 150 metres away from where he was at the time of the
shooting’. (Original underlining.)

[11] According to the full court , the appellant and his witness ’ evidence were ‘so
diametrically opposed that I am not in a position to reconcile the two. Appellant testified
that he was +/- 4 metres away when he was shot whilst his witness testified about the

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distance of 200 metres’. This summary of the facts by the full court was not in line with
the trial court’s summary.

[12] The full court dismissed the appeal with no order as to costs. Aggrieved by the
dismissal, the appellant sought special leave to appeal to this Court, which was
granted to him on 11 February 2022.6

Proceedings in this Court.
[13] In his notice of appeal to this Court, the appellant sought the following relief
inter alia: that the appeal be upheld; that the respondent be held liable for damages
that the appellant may prove; alternatively, that the matter be remitted to the high court
for re-hearing, to start de novo before another presiding judge. On 4 April 2023, before
this Court, the appeal was set down for hearing. Because it was not clear what steps
the appellant took to reconstruct the record, this Court was not satisfied that there had
been compliance with the guidelines set out by the Constitutional Court in Schoombee
and Another v S.7 This Court consequently granted the following order:
‘1 The matter is postponed sine die with no order as to costs.
2 The parties are directed to attend to the reconstruction of the record of the civil trial
proceedings under Limpopo Division (Thohoyandou) Case Number 547/2015 (A M L Phatudi

6 Before Zondi JA and Weiner AJA.
7 Schoombee and Another v S [2016] ZACC 50; 2017 (5) BCLR 572 (CC); 2017 (2) SACR 1 (CC) paras
19-21:
‘Reconstruction of a trial record
[19] It is long established in our criminal jurisprudence that an accused’s right to a fair trial encompasses
the right to appeal. An adequate record of trial court proceedings is a key component of this right. When
a record “is inadequate for a proper consideration of an appeal, it will, a s a rule, lead to the conviction
and sentence being set aside”.
[20] If a trial record goes missing, the presiding court may seek to reconstruct the record. The

reconstruction itself is “part and parcel o f the fair trial process ”. Courts have identified different
procedures for a proper reconstruction, but have all stressed the importance of engaging both the
accused and the State in the process. Practical methodology has differed. Some courts have required
the presiding judicial officer to invite the par ties to reconst ruct a record in open court. Others have
required the clerk of the court to reconstruct a record based on affidavits from parties and witnesses
present at trial and then obtain a confirmatory affidavit from the accused. This would reflect th e
accused’s position on the reconstructed record. In addition, a report from the presiding judicial officer is
often required.
[21] The obligation to conduct a reconstruction does not fall entirely on the court. The convicted accused
shares the duty. When a trial record is inadequate, “both the State and the appellant have a duty to try
and reconstruct the record”. While the trial court is required to furnish a copy of the record, the appellant
or his/her legal representative “carries the final responsibili ty to ensure that the appeal record is in
order”. At the same time, a reviewing court is obliged to ensure that an accused is guaranteed the right
to a fair trial, including an adequate record on appeal, particularly where an irregularity is apparent.’

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J) to the extent that is necessary and capable of reconstruction in line with the guidelines . . .
in Schoombee . . .
. . .
4 Counsel for the parties is hereby directed to immediately take steps to have the record
of this matter reconstructed and submit the report to this Court (SCA) within 90 (ninety) days
from the date of this order.
5 If the record is not capable of reconstruction notwithstanding the efforts set out i n
paragraphs 3 and 4 above, the parties are to file a joint report to that effect . . .’

[14] The appeal was re-enrolled for hearing on 3 November 2023 before this Court.
A report setting out the steps that the appellant and the respondent took to reconstruct
the record some five years later was submitted. The following was stated in the report:
‘. . .
2. On the 25 th of April 2023, at the Chamber of Justice AML Phatudi, the partie s’ legal
representatives held a meeting before Justice AML Phatudi to comply with this Court Order.
3. In the above-mentioned meeting, it was agreed that the Registrar of the High Court,
Mrs Mavhungu will take necessary steps of ensuring that the reconstruction of the High Court
proceedings is retrieved from the service provider and transcribe such record on or before the
15th of May 2023.
4. The Registrar of the High Court attempted without any success to obtain recording of
trail proceedings under High Court case number 547/2015. As proof, the affidavit of the
Registrar of the High Court is attached hereto as annexure “A”, as well as the letter from the
ICT technician, Ms H Lidiavhathu marked annexure “B”.
5. On the 22 nd of June 2023, the parties through their legal representatives (Mr SO
Ravele and Adv BF Gededger) held their second meeting at Justice AML Phatudi’s Chambers,
where the following was agreed upon:
5.1. The parties have given attention to paragraphs 4 and 5 of this Court as well as the
guideline set out by the Constitutional Court in Schoombee and Another v S [2016] ZASCA

guideline set out by the Constitutional Court in Schoombee and Another v S [2016] ZASCA
50; 2017 (5) BCLR 572 (CC); 2017 (2) SACR 1 (CC) para 20.
5.2. Since the transcribe record of the proceedings of the High Court has gone missing and
the parties’ counsel and the presiding Judge (court a quo) no longer have the notes of the
proceedings, reconstruction has proved impossible.
5.3 The parties are of the view that calling witnesses to depose to affidavits under the
circumstances where both the record of the High Court proceedings and notes of the presiding
Judge and counsel of the parties are not available, will amount to [a] retrial of the matter
without leave of the Supreme Court of Appeal.

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5.4. The parties agree that this is a case where the transcribe record has gone missing and
the presiding Judge and counsel of the parties have made all attempts to reconstruct the
record without any success; and
5.5. The parties agree that what remains is for the Supreme Court of Appeal to consider
the circumstances detailed above, give direction and/or make a ruling having had regard of
the fact that [the] transcribed record has gone missing and there has been a proper attempt(s)
to have the record reconstructed, which has proved impossible.’

[15] In a very short affidavit, the registrar of the high court stated that according to
the ICT Technician, the recordings of the court proceedings could not be retrieved.
This affidavit was followed by a report indicating that the recording was done on the
old DCRS machines , which have been decommissioned , as a result of which the
recordings could not be retrieved. No further explanation was forthcoming. The parties
accepted the outcome and did nothing further.

[16] The attempts by the parties to retrieve the record are unsatisfactory. The
appellant accepted the explanation that the record was missing and reiterated in this
Court that the trial court mi sdirected itself on the facts. It is clear that there is no
consensus on the facts. In JMYK Investments CC v 600 SA H oldings (Pty) Ltd,8 the
court held:
‘[5] It is the plaintiff's submission that the appeal cannot be heard on the record before this
Court. But a party has a statutory right to appeal: Beaumont v Anderson 1949 (3) SA 562 (N).
In that matter the plaintiff's evidence -in-chief was lost. The court rem itted the matter to the
magistrate to re-hear that evidence. The defendant has not asked us to give a similar order,
but has asked us to hear the appeal on the record as it stands.
[6] In Engelbrecht v Nieuwoudt 1941 CPD 54 Davis J (Howes J concurring) said at 55:
“(T)he record in the magistrate's court does not purport to reproduce the ipsissima verba of

“(T)he record in the magistrate's court does not purport to reproduce the ipsissima verba of
the witness; it does not give questions and answers in the exact words in which the question
was put and the answer made; it, at best, gives no more than a summary, and, that being so,
the Court of Appeal is at an even greater disadvantage that it would be with a record before it
which was an exact transcription of everything that was said in the lower court. It consequently
becomes all the more dangerous to attempt to fasten on an odd phrase here or some few
words there when one does not know the precise words used in the answer and, what is of
equal importance, one does not know the question which elicited that answer.”

8 JMYK Investments CC v 600 SA Holdings (Pty) Ltd 2003 (3) SA 470 (W).

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We are at a still greater disadvantage.
[7] There was no misdirection on fact by the magistrate. Therefore, there is a presumption
that the magistrate's conclusion is correct; and before the defendant can succeed on appeal,
we have to be convinced on this record that the conclusion reached by the magistrate is wrong.
In case of doubt, the magistrate's conclusion must be upheld: Rules 8 and 9 in R v Dhlumayo
and Another 1948 (2) SA 677 (A) at 706.’

[17] In this case, there is no evidence . After five years, I am not surprised that the
presiding officer of the high court no longer has his notes. For the appellant’s legal
representative and the State’s legal representative not to have any notes of the trial
proceedings, is implausible. More so, the appe llant’s legal representative mu st have
known that the appellant intended to appeal and the sensible and responsible thing
would have been to ensure the safekeeping of their notes. The failure by the appellant
and the respondent ’s legal representative to keep notes of the proceedings wel l-
knowing that an appeal is looming is in our view a dereliction of duty.

[18] In Unitrans Fuel and Chemical v Dove-Co Carriers,9 the court held:
‘Litigants in our civil cou rts have no choice but to utiliz e the transcribers , contracted to the
Minister of Justice, and although not party to that contract, they undoubtedly have the
necessary locus standi to bring an application to compel them and /or the Minister of Justice
to provide the transcripts, in the event of their defaulting on their contractual obligations.’
This was not done. Again, if efforts to secure the record w ere made timeously, we
would not have reached this stage where the record of the tri al was missing in its
entirety.

[19] It is clear that t he full court laboured under the incorrect assumption that the
facts were not in dispute. Both in this Court and in the appellant’s notice of appeal, he

facts were not in dispute. Both in this Court and in the appellant’s notice of appeal, he
contended that the trial court misdirected itself on the facts. The appellant persisted
with his contention that the trial court misdirected itself on the f acts. When there is a
challenge to the factual findings on the record, it is trite that an appeal court will not
interfere with the factual findings of a trial court unless the trial court seriously

9 Unitrans Fuel & Chemical (Pty) Ltd v Dove-Co Carriers CC 2010 (5) SA 340 (GJ) para 30.

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misdirected itself on the facts.10 To establish this, an appeal court has to consider the
trial court proceedings. In the absence of the trial record this is not possible.

[20] To come to a conclusion on the disputed issues, the full court had to look at the
record of the proceedings in order to evaluate whether the trial court misdirected itself
on the facts. The full court’s reliance on the trial court’s summary of the facts and then
on the basis that the ‘appellant and respondent seem not to be dissatisfied with the
trial court’s summary of the facts’, is not borne out by the appellant’s contentions in
this Court and his notice of appeal. As a result, a serious misdirection on th e part of
the full court has occurred. The full court wrongly decided the matter without the record
of the trial proceedings. In terms of s 34 of the Constitution the appellant was entitled
to a fair trial. Without the record in this case, it cannot be said that the appellant had a
fair trial. Unfortunately, the consequence hereof must be to remit the matter to the trial
court for a re-hearing before another presiding judge as credibility findings were made
by the trial court.

[21] Because of the lacklustre attempt at compliance with the court rules and the
inordinate delay in this matter from both the appellant ’s and the respondent ’s legal
representative, each party should pay its own costs in the appeal. None of the parties
sought costs for the previous hearing in this Court when the proceedings were
adjourned for the parties to secure the trial record.

[22] In the result, the following order is made:
1 The appeal is upheld with no order as to costs.
2 The order of the full court is set aside and replaced with the following order:
‘a. The matter is remitted to the trial court to start de novo before another
presiding judge.
b. Costs are reserved.’

10 Bogaards v S [2012] ZACC 23; 2012 (12) BCLR 1261 (CC); 2013 (1) SACR 1 (CC); Hewitt v S [2016]
ZASCA 100; 2017 (1) SACR 309 (SCA) . See also Monyane and Others v S [2006] ZASCA 113; 2008
(1) SACR 543 (SCA) para 15.

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___________________
Z CARELSE
JUDGE OF APPEAL

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Appearances

For the appellant: S O Ravele
Instructed by: SO Ravele Attorneys, Louis Trichardt
Phatshoane Henney Attorneys, Bloemfontein

For the respondent: B F Gededger
Instructed by: State Attorney, Thohoyandou
State Attorney, Bloemfontein