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[2023] ZAKZPHC 8
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Shangase v S (AR400/2019) [2023] ZAKZPHC 8 (27 January 2023)

IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Appeal Case No:
AR400/2019
In
the matter between:
MPUMELELOSACKYSHANGASE

APPELLANT
And
THE
STATE
RESPONDENT
This
judgment was handed down electronically by circulation to the
parties' representatives by email, and
released to SAFLII. The date and time for
hand down is deemed to be 14H00, 27 January 2023
ORDER
On
appeal
from:
KwaZulu-Natal
Division
of
the
High
Court,
Durban
(McLaren
J,
sitting as the court of first instance):
1
The
appeal
against
conviction
and
sentence
is
upheld.
The
conviction
and
sentences
imposed are set aside.
2
The
matter
is
remitted
to
the
Director
of
Public
Prosecutions
for
further consideration.
JUDGMENT
HENRIQUES J (POYO DLWATI
JP and PLOOS VAN AMSTEL J concurring)
Introduction
[1]
The
appellant
and
his
co-accused,
who
were
legally
represented,
were
convicted of murder and housebreaking with the intent to rob and
robbery with aggravating circumstances on 24 June 2010 in
the
KwaZulu-Natal High Court, Durban before McLaren J.
On 28 June 2010, the appellant was
sentenced to 25 years' imprisonment for murder and 15 years'
imprisonment for the latter offence.
The sentence of 15 years'
imprisonment was ordered to run concurrently with the sentence of 25
years' imprisonment
imposed
for murder, resulting in an effective term of imprisonment of 25
years.
In April
2015, the appellant successfully applied for leave to appeal his
conviction and sentence before D Pillay J.
It is this appeal which serves before us.
[2]
At
the
time
of
hearing
the
application
for
leave
to
appeal,
the
record
was
incomplete and only consisted of the judgment and sentence of the
court a
quo.
There
was no record of the evidence of the witnesses.
Since being granted leave to appeal, the
appellant has unsuccessfully attempted to have the record
transcribed. After several attempts,
an affidavit was deposed to by a
Registrar, H Bridgelal, (criminal section) of the Office of the Chief
Justice, Durban which indicated
that despite several attempts, the
record of the proceedings could not be retrieved from the court
machine or the server as it
was part of the "crash" system
of recordings. Consequently, a transcript of the court proceedings
could not be obtained.
[3]
Subsequently,
an
attempt
was
made
to
reconstruct
the
record
pursuant
to
an
order issued on 31 July 2020.
McLaren
J was asked to reconstruct the record from his
notes and bench
b
ooks together
with the representative of the respondent
and
the
appellant's legal representative.
[4]
McLaren J
subsequently
submitted a memorandum
in which he indicated that he was
unable
to
assist
in
the reconstruction
of the
record
as
he
was
not provided
with his bench books which could not be located.
The prosecutor, in addition, could not
assist as her notes were incomplete
as
well as that of the defence counsel.
It
was subsequently confirmed by a representative of the Director of
Public Prosecutions that the record could not be reconstructed.
The current record on
appeal
[5]
At present before us, the appeal record
consists of the judgment on conviction and sentence, the indictment,
the summary of substantial
facts, certain of the
exhibits and the application for leave to
appeal.
The circumstances which
gave rise to the convictions and sentences
[6]
In respect of the charges preferred, the
deceased died on 15 April 2009 as a result of a home invasion.
The respondent led evidence to prove that
the appellant and others had planned to commit a robbery and hired a
vehicle to take them
to the deceased's home.
The appellant and the other assailants were
armed with firearms and knives in order to carry out the robbery and
the deceased, who
was with his family in the house, was robbed and
stabbed. The deceased subsequently succumbed to the injuries he
sustained during
the course of the robbery. It is common cause that
the appellant was convicted on the basis of a confession he had made
to one
Captain Eva.
Issue on appeal
[7]
The issue on appeal is whether
the appeal record which serves before us is
sufficient for a determination of the appeal.
Legal Position
[8]
There
are
a
number
of decisions
which
deal
with
the
sufficiency
of
an appeal record.
In
Phakane
v S
[2017]
ZACC
44
;
2018
(1)
SACR
300
;
2018
(4) BCLR 438
(CC),
the
Constitutional
Court emphasised
the
appellant's
right
to
a
fair
appeal
as entrenched in s 35(3) of the
Constitution which provides for every accused person to have
a
fair trial which includes a right of appeal or review to a higher
court.
In
Phakane
when the matter first served before the
court a
quo,
the
Full Court had a complete appeal record save for the evidence of one
of the State witnesses.
The
court took the view that the appeal could be determined fairly
despite the incomplete record and confirmed the conviction but
upheld
the appeal on sentence.
The
appellant then sought leave to appeal this decision to the
Constitutional Court.
The
Constitutional Court had to decide whether the State's failure to
deliver a complete trial record where the missing evidence
could not
be reconstructed infringed on an appellant's right to a fair appeal
entrenched in s 35(3) of the Constitution.
[9]
Of crucial importance in the trial court
was the evidence of a witness, a Mrs Manamela, whose evidence could
not be transcribed
or reconstructed. The Constitutional
court, at paragraph 38 of the judgment,
held the following:
'The
failure
of the
State to furnish an adequate
record
of the trial proceedings
or
a record that reflects Ms Manamela's full evidence before the trial
court in circumstances in which the missing
evidence
cannot
be
reconstructed
has the effect of rendering the applicant's
rights to a fair appeal nugatory or
illusory.'
[10]
Reference was also made to the decision in
S v Joubert
[1990]
ZASCA 113
;
1991 (1) SA 119
(A) in which the Appellate Division held
the following:
'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, because it cannot be said
that there has not
been a failure of justice.'
[11]
The importance and necessity of the record
of the proceedings in a trial court being available on appeal was
also succinctly dealt
with by the Supreme Court of Appeal in the
decision of
S v Chabedi
2005
(1) SACR 415
(SCA) paras 5-6, where Brand JA held the following:
'On
appeal, the
record
of the proceedings in the trial court
is
of cardinal importance.
After
all, that record forms the whole basis of the rehearing by the Court
of appeal.
If the
record is inadequate
for
a
proper
consideration
of
the appeal, it
will,
as a rule, lead to the conviction
and
sentence being set aside.
However.
the requirement is that the record must be adequate for proper
consideration of the appeal; not that it must be a perfect
recordal
of everything that was said at the trial.
As has been pointed out in previous cases,
records of proceedings are often still kept by hand, in which event a
verbatim record
is impossible...
The
question whether defects in a record are so serious that a proper
consideration of the appeal is not possible, cannot be answered
in
the abstract.
It
depends,
inter a/ia,
on
the nature of the defects in the particular record and on the nature
of the issues to be decided on appeal.'
[12]
In
S v
Schoombee and Another
2017 (2) SACR 1
(CC), the Constitutional Court had to consider whether the right of
an accused person to participate in a reconstruction process
was part
and parcel of his rights to a fair appeal.
In this matter, the appellants had not
participated in the reconstruction process and the reconstruction was
based solely on the
trial judge's notes. At paragraph 19, the
Constitutional Court once again emphasised
that it was:
'...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, as a
rule, lead to the conviction
and
sentence being set aside"'.
At
paragraph 20, the court held:
'If
a trial record goes missing, the presiding court may seek to
reconstruct the record. The reconstruction itself is "part
and
parcel of the fair trial process".'
Further,
at paragraph 21, the court held:
'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 responsibility 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.'
(Footnotes omitted.)
[13]
The Constitutional Court confirmed the
principle that in circumstances 'where the adjudication of an appeal
on a
n
·
imperfect
record will not prejudice the
appellants, their convictions
need
not be set aside solely on the basis of an error or omission in the
record or an improper reconstruction process'.
It held that on the facts of the matter the
record was detailed and specific and the appellant, by not
challenging the reconstructed
record when the matter first served
before the Full Court, could not do so before it and rely on the
imperfect record as a basis
for their convictions and sentences to be
set aside.
It
held that the record was adequate for a just consideration of the
issues which the appellants had raised on appeal.
The current appeal record
[14]
Turning
now
to
the
facts
of
this
matter,
the
appellant
was
convicted
on
the
evidence of a confession made to Captain Eva and other circumstantial
evidence. The admissibility of the confession appears
to have been
challenged at a trial-within­ a-trial and at the end thereof the
presiding judge ruled it admissible.
His
judgment goes into some detail as to the reasons why he ruled it
admissible and why, at the end of the main trial when he revisited

his ruling in relation to the admissibility thereof, he did not
deviate from such initial ruling. There is however no proper record

of the evidence of any of the witnesses who testified both in the
trial-within-a-trial and in the main trial in relation to the

admissibility
of
the evidence.
Without
that, this court cannot comment on the
reliability of such evidence or the court's reasoning behind it.
[15]
The appellant is entitled to a fair trial
which extends to a fair appeal and without a complete
and proper
record
this
court cannot
properly
exercise
its judicial
powers on appeal. Although the judgment is
very detailed and some of the exhibits form part of the record, in
the absence of the
evidence this court simply cannot ensure that the
appellant has a fair appeal hearing.
The
respondent is cognisant of the legal principles in the line of cases
I have referred to and has correctly, in my view, indicated
that the
proceedings would not be in accordance with justice should this court
decide the appeal in the absence of a properly constructed
record.
Conclusion
[16]
In the result the following orders will
issue:
16.1.
The appeal is upheld.
The convictions and sentences are set
aside.
16.2.
The matter is remitted to the Director of
Public Prosecutions for further consideration.
HENRIQUES J
I agree,
POYO DLWATI JP
I agree,
PLOOS
VAN AMSTEL J
CASE
INFORMATION
Date
of Hearing:
27
January 2023
Date
of Judgment:
27
January 2023
For
Appellant:
Adv T Botha
Instructed
by:
JH Slabbert Attorney
10
Millhaven Place La Lucia
For
Respondent:
Adv
AJ Meiring
Instructed
by:
The
Director of Public Prosecutions Pietermaritzburg