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2024
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[2024] ZAECMKHC 18
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Yawa v S (CA R 134/2022) [2024] ZAECMKHC 18 (14 February 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
CASE
NO.: CA R 134/2022
In
the matter between:
THEMBILE
YAWA
Appellant
and
THE
STATE
Respondent
APPEAL JUDGMENT
GQAMANA J
[1]
The appellant was arraigned in the Regional Court sitting at Kirkwood
for murder, assault GBH
and attempted murder. He was sentenced
to 15 years’ on count 1, 6 years’ imprisonment on count
2, and 12 months’
imprisonment on count 3. The sentence
on count 2 and 3 was ordered to run concurrently with the sentence on
count 1.
[2]
The appeal is against both the conviction and sentence.
However, the challenge that the
appellant encountered is the
incomplete record of the trial proceedings. The record forms
the foundation of the appeal process
and without the complete record
the administration of justice suffers.
[3]
In this appeal the appellant’s entire evidence and the judgment
of the court
a quo
is missing, despite all the efforts by the
parties and the presiding magistrate to reconstruct the record.
The magistrate
ascribes the challenge of reconstruction of the record
to the delay between the time of the conclusion of the trial and the
period
that he was approached for reconstruction.
[4]
The question now for determination is whether, the absence of the
missing record has the effect
that the appeal could not be fairly
determined.
[5]
An accused’s constitutional right to a fair trial, which
includes the right of appeal to
a higher court is sancrosanct.
[6]
In the absence of the transcript or any reconstruction of the missing
portion of the record and
the judgment of the court
a quo
, we
as the appeal court, are unable to know what facts the magistrate
found as proven. Without the appellant’s evidence
and the
judgment, we would not be able to do justice to the appeal.
[7]
In
S
v Chabedi
[1]
at paras 5-6, the SCA said:
“
The
requirement is that the record must be adequate for proper
consideration of the appeal.
The
question whether the defects in a record are so serious that a proper
consideration of the appeal is not possible, cannot be
answered in
abstract. It depends,
inter alia
,
on the nature of the defects in the particular record and on the
nature of issues to be decided on appeal
.”
[8]
As mentioned in paragraph 2 above, the appellant challenge both the
conviction and the sentence.
Without his evidence and the
judgment, it is impossible to consider the issues raised in this
appeal. The nature of the defects
in the record are so serious
that a proper consideration of the appeal is not possible.
[9]
The importance of the proper record of trial proceedings and its
connection of the right to a
fair trial was authoritatively confirmed
in
S
v Schombee
and
Another
[2]
and the Constitutional Court said:
“
[19]
It is long established in our criminal jurisprudence that an accused’
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, as a rule, lead to conviction and sentence
being set aside
.”
[10]
In the light of all the above reasons, we are unable to consider the
appeal and as such the appellant’s
rights to a fair appeal has
been so compromised. That being the case the proper remedy is
to set aside the trial proceedings
in their entirety.
[11]
In the result the following order is made:
1.
The appeal is upheld.
2.
The conviction and the resultant sentences of the court
a quo
are set aside.
3.
The appellant must be released from prison immediately
4.
The Registrar of this court is directed immediately to take steps to
ensure that this judgement
is delivered to the Head Kirkwood Prison.
N
GQAMANA
JUDGE
OF THE HIGH COURT
I
agree:
A
GOVINDJEE
JUDGE
OF THE HIGH COURT
APPEARANCES:
Counsel
for Appellant
Mr
M T Solani
Instructed
by
Legal
Aid
Makhanda
Counsel
for Respondent
Adv
H Obermeyer
Instructed
by
Director
of Public Prosecutions
Gqeberha
Heard
on
14
February 2024
Judgment
Delivered on
14
February 2024
[1]
2005 (1) SACR 415 (SCA).
[2]
2017 (2) SACR (!) CC.