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Mathunjwa v S (AR351/2017) [2023] ZAKZPHC 56 (29 May 2023)

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Criminal Law
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Brief Summary

Criminal Law — Appeal against conviction and sentence — Appellant convicted of two counts of rape of minor complainants — Appellant's conviction based on testimony of five-year-old complainant and corroborating witnesses — Record of trial incomplete, missing critical evidence — Appellant contended that absence of complete record infringed his right to a fair trial — Court held that the incomplete record prevented a fair determination of the appeal — Appeal upheld, conviction and sentence set aside.

Comprehensive Summary

Summary of Judgment


Introduction


This was a criminal appeal in the KwaZulu-Natal High Court, Pietermaritzburg, directed against both conviction and sentence imposed by the Regional Court, Durban.


The appellant was Henry Khalangaye Mathunjwa, and the respondent was the State. The appeal concerned convictions on two counts of rape under the Criminal Law (Sexual Offences and Related Matters) Act 32 of 2007, involving two minor complainants aged five and two years respectively at the time of the alleged offences.


Procedurally, the appellant was tried in the regional court, pleaded not guilty, and was convicted on both counts. The sentencing court imposed 15 years’ imprisonment on one count (relating to the five-year-old complainant) and life imprisonment on the other (relating to the two-year-old complainant). Leave to appeal against conviction and sentence was granted. The appeal was repeatedly postponed over several years due to difficulties obtaining a complete appeal record, including directions that the record be reconstructed. By the time the appeal was finally argued, the missing portions of the record could not be reconstructed.


The general subject-matter of the dispute on appeal was not the substantive merits of the rape allegations as such, but whether the appeal could be fairly determined given an incomplete and irrecoverable trial record, and what the appropriate remedy was in those circumstances.


Material Facts


The appellant was charged with having raped both complainants in October 2010 in the vicinity of their homes in Lamontville, Durban. The appellant was related to the complainants’ family and was referred to by the complainants as their “grandfather”.


At trial, the State led evidence including the testimony of the five-year-old complainant (who testified with the assistance of an intermediary) and further evidence from the complainants’ mother and aunt. The appellant was legally represented and pleaded not guilty. The regional magistrate convicted him on both counts, accepting the evidence of the five-year-old complainant and referring to what was described as “strong medical corroboration”. The appellant did not testify.


In relation to sentence, the regional court considered the appellant’s age (64), his HIV-positive status (and that he knew of it), and his family circumstances. The sentencing court imposed different sentences on the two counts: 15 years’ imprisonment on the count involving the five-year-old complainant, and life imprisonment on the count involving the two-year-old complainant. It was also recorded that it had not been established at sentencing whether the complainants had become HIV-positive, and that the complainants were only taken to a clinic on 8 November 2010, weeks after the alleged offences.


The decisive facts for the appeal, as relied upon by the High Court, concerned the state of the appeal record and the failed reconstruction process. The appeal record placed before the High Court contained only limited parts of the proceedings, including the appellant’s plea and the evidence-in-chief and cross-examination of the five-year-old complainant. The record reflected that proceedings continued on a date for which no transcription was available, and crucially did not include the evidence of the complainants’ mother and aunt. The record also did not contain certain exhibits referred to in argument, including the J88 and related medical documentation or injury sketch.


The inadequacy of the record was common cause between the parties. The appeal had previously been adjourned with directives that the record be reconstructed, including the missing evidence. Despite attempts by the appeals clerk and the appellant to locate exhibits and original recordings, those attempts were unsuccessful. Evidence was presented under oath that reconstruction was not possible and that the relevant missing mechanically recorded portions could not be retrieved. The presiding magistrate was no longer in service and was reported to have emigrated.


Legal Issues


The central legal question was whether the defects and omissions in the appeal record were so serious that the High Court could not properly consider and determine the appeal on its merits.


This question principally concerned the application of legal standards to established facts about the incompleteness of the record and the failure of reconstruction. The Court was required to determine whether the record was nevertheless adequate for a fair adjudication of the appeal, bearing in mind the nature of the missing material and the grounds of appeal (including alleged contradictions and corroboration).


A further question concerned the appropriate remedy if the record was inadequate and incapable of reconstruction, including whether the convictions and sentences should be set aside and what the implications would be for any potential further prosecution.


Court’s Reasoning


The Court treated the appeal record as a matter of cardinal importance for appellate adjudication because the record forms the basis on which the appeal is reheard. Applying the approach articulated in S v Chabedi 2005 (1) SACR 415 (SCA), the Court emphasised that an appeal record need not be perfect, but it must be adequate for proper consideration of the issues raised. Whether a record is adequate depends on the nature of the defects and the issues that must be decided.


The Court examined the record and accepted that it was materially incomplete. It considered it significant that the missing portions were not peripheral: the absent parts included the evidence of two State witnesses (the complainants’ mother and aunt) whose testimony, according to the grounds of appeal, bore directly on alleged contradictions and the reliability of the State’s case. The Court also accepted that medical documentation referred to as corroborative at trial was not available in the appeal record, which undermined any ability to evaluate the trial court’s reliance on such corroboration.


In assessing fairness, the Court accepted the submission that proceeding without the missing evidence would impair the appellant’s ability to exercise the constitutional right to a fair trial, including the right to appeal in a meaningful manner. In this respect, the Court referred to S v Mantsha 2006 (2) SACR 4 (C) as authority supporting the proposition that it may be unfair to determine an appeal where the absence of the record prevents proper consideration of the issues. The Court also relied on Schoombee and another v S 2017 (2) SACR 1 (CC), which recognised reconstruction of the record as part of the fair trial process.


The Court further considered the broader notion of fairness, not only to the accused but also to the public and victims. It referred to S v Jaipal [2005] ZACC 1; 2005 (1) SACR 215 (CC), highlighting that fair trial rights require fairness to the accused and fairness to the public as represented by the State, and that the criminal justice system should inspire confidence. However, despite acknowledging the prejudice to complainants in circumstances where records are not preserved, the Court reasoned that the inability to obtain a complete record meant that a fair adjudication of the appeal could not occur.


A key factor in the Court’s evaluation was the absence of fault on the appellant’s side. The Court noted that no blame could be attributed to the appellant or his representatives given the attempts made to secure transcription and reconstruction. The Court accepted that reconstruction efforts had failed for reasons beyond the parties’ control, including the unavailability of recordings and the absence of the presiding magistrate.


Given these circumstances, the Court accepted the State’s submission that the appeal should succeed on the basis that the record was inadequate for proper appellate determination and that this inadequacy compromised the appellant’s fair trial rights. The Court concluded that the convictions and sentences should therefore be set aside. It also noted the suggestion that the matter be remitted to the Director of Public Prosecutions for consideration of further steps, consistent with the principle that setting aside a conviction for technical reasons does not necessarily amount to an acquittal.


Outcome and Relief


The High Court upheld the appeal.


The Court set aside the appellant’s convictions and sentences on both rape counts due to the inadequate and irreconstructible record, which rendered it impossible to fairly determine the appeal.


No separate or specific costs order was recorded in the judgment.


Although the formal order was limited to upholding the appeal and setting aside the convictions and sentences, the judgment indicated that the matter could be remitted to the Director of Public Prosecutions for consideration, in line with the possibility of proceedings de novo where a conviction is set aside on appeal.


Cases Cited


S v Chabedi 2005 (1) SACR 415 (SCA)


S v Mantsha 2006 (2) SACR 4 (C)


Schoombee and another v S 2017 (2) SACR 1 (CC)


S v Jaipal [2005] ZACC 1; 2005 (1) SACR 215 (CC)


S v Quali 1989 (2) SA 581 (E)


S v Zondi 2003 (2) SACR 227 (W)


Legislation Cited


Criminal Law (Sexual Offences and Related Matters) Act 32 of 2007 (including section 3 read with sections 1, 56(1), 57, 58, 59, 60 and 61)


Criminal Procedure Act 51 of 1977 (section 324, including section 324(c))


Constitution of the Republic of South Africa, 1996 (right to a fair trial, as referenced in substance)


Rules of Court Cited


Magistrates’ Courts Rules (Rule 67(5))


Uniform Rules of Court (Rule 51(3))


Held


The High Court held that the appeal record was materially incomplete and that the missing portions could not be reconstructed despite attempts to do so. Because the absent evidence and exhibits were essential to evaluating the grounds of appeal and the correctness of the convictions and sentences, the record was not adequate for proper consideration of the appeal.


The Court held that deciding the appeal in those circumstances would be inconsistent with the appellant’s fair trial rights, including the right to a meaningful appeal. The Court therefore set aside the convictions and sentences. The judgment further contemplated that the prosecuting authority could consider whether to pursue proceedings de novo.


LEGAL PRINCIPLES


An appellate record is of fundamental importance because it constitutes the basis for the rehearing on appeal. The legal requirement is not a perfect transcript of every aspect of the trial, but a record that is adequate for proper consideration of the issues raised on appeal, assessed with reference to the nature of the omissions and the nature of the issues to be determined, as articulated in S v Chabedi 2005 (1) SACR 415 (SCA).


Where the trial record is materially defective and incapable of reconstruction, and where the missing material is essential to determining the grounds of appeal, proceeding with the appeal may infringe the accused’s right to a fair trial, including the right to appeal in a meaningful way. Reconstruction of the record is recognised as part of the fair trial process in terms of Schoombee and another v S 2017 (2) SACR 1 (CC).


Fair trial rights entail fairness not only to the accused but also to the public as represented by the State, and should promote confidence in the criminal justice system, consistent with S v Jaipal [2005] ZACC 1; 2005 (1) SACR 215 (CC). Nonetheless, where a fair appellate adjudication is not possible due to an inadequate record, the appropriate consequence is that the proceedings (including conviction and sentence) may be set aside.


Setting aside a conviction due to an inadequate record does not necessarily entitle an appellant to an acquittal. Under section 324 of the Criminal Procedure Act 51 of 1977, and as reflected in authorities such as S v Quali 1989 (2) SA 581 (E) and S v Zondi 2003 (2) SACR 227 (W), it remains open to the prosecuting authority to consider whether to reinstitute proceedings de novo where a conviction has been set aside on appeal for a technical irregularity or defect.

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[2023] ZAKZPHC 56
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Mathunjwa v S (AR351/2017) [2023] ZAKZPHC 56 (29 May 2023)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO:  AR351/2017
In
the matter between:
HENRY
KHALANGAYE MATHUNJWA
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
for hand down is deemed to be on 29th May 2023 at 10:00
Coram:
Chetty J (M E Nkosi J concurring)
Heard:
12 May 2023
Delivered:
29 May 2023
ORDER:
(1)
The appeal against conviction and sentence is upheld.
CHETTY
J:
[1]
The appellant was charged in the Regional Court in Durban,
KwaZulu-Natal in terms
of s 3 read with sections 1, 56(1), 57, 58,
59, 60 and 61 of the Criminal Law (Sexual Offences and Related
Matters) Act 32 of 2007,
on two counts of rape. The complainants were
girls aged five and two years' old respectively. The appellant was
the uncle of the
complainants' mother, and to whom the complainants
referred to as their grandfather.
[2]
It is alleged that the appellant raped both complainants in the
vicinity of their
homes in Lamontville, Durban in October 2010. The
appellant was legally represented at his trial and pleaded not guilty
to the
charges. He denied knowledge of the charges against him. After
considering the evidence of one of the complainants, who was five

years' old at the time of the offence, and who testified with the
assistance of an intermediary, as well as the evidence of the
mother
of the two complainants as well as that of their aunt, the court a
quo convicted the appellant on both counts. It should
be noted that
the appellant did not testify in his defence. In her judgment, the
learned magistrate found that the five-year-old
complainant was an
excellent witness. She testified as to the appellant not only having
raped her, but also having raped her two­
year-old sister in her
presence.
[3]
The court a quo found that on a totality of the evidence, as well as
the 'strong medical
corroboration', the version of the appellant was
rejected as being false beyond reasonable doubt.
[4]
In considering whether any substantial and compelling circumstances
existed in order
to deviate from the mandatory minimum of life
imprisonment for the offences in question, the court a quo took into
account that
the appellant was 64 years' old; that he was
HIV-positive at the time of the commission of the offences; that he
knew of his medical
condition, and; that he had four children, two of
whom are adults with the remaining two children living with their
mother and
dependent on a social welfare grant.
[5]
At the time of sentencing, it had not been established whether the
complainants had
become HIV-positive. What was established is that
the complainants' mother took them to a clinic, but this appears from
the record
only to have been done on 8 November 2010, some weeks
after the alleged offences had been committed.
[6]
The court a quo took into account the personal circumstances of the
appellant and
those of the two minor complainants. Despite the
sentence of life imprisonment applicable in the case of rape of a
minor, the court
for some inexplicable reason found that the
appellant's age was a reason to deviate from the minimum sentence in
respect of the
five-year-old minor. On this count, the court imposed
a sentence of 15 years' imprisonment, and in respect of the second
complainant,
aged two, the court sentenced the appellant to life
imprisonment.
[7]
An application for leave to appeal was brought against conviction and
life sentence
approximately four months after the court a quo imposed
sentence. Counsel for the appellant contended that the court a quo
failed
to consider the contradictions in the evidence between the
five-year-old complainant, and that of N[...] M[...], her aunt. It
was
further contended that the court a quo failed to take into
account contradictions in the evidence of the five-year-old
complainant
and her mother, P[...] M[...]. In addition, it was
contended that there were improbabilities in the evidence of the
complainants'
mother that the court should have considered in
determining whether it was reasonably possibly true that the
appellant was being
falsely implicated, for reasons that the
complainants' family wished to evict him from the area in which he
resided. In so far
as sentence is concerned, it was submitted that
the court a quo erred in considering the appellant's HIV-positive
status as being
an aggravating factor rather than a substantial and
compelling circumstance. On this basis, the court a quo granted the
appellant
leave to appeal against both his conviction and sentence.
[8]
Magistrates' courts rule 67(5) places an obligation on the clerk of
the court to prepare
a copy of the record of the case, including a
transcript thereof as soon as leave to appeal has been granted by the
magistrate.
Uniform rule 51(3) provides that the ultimate
responsibility for ensuring that all copies of a record on appeal are
in all respects
properly before the court, rests on the appellant or
his/her legal representative, provided that where the appellant is
not represented
the responsibility rests on the Director of Public
Prosecutions. In
S v Chabedi
2005 (1) SACR 415
(SCA) Brand JA
said the following:
'[5]
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....
[6]
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 alia, on the nature of
the defects in the particular record and on the nature of the issues
to be decided on appeal.
' (my italics)
[9]
The record of appeal before us is comprised of the plea by the
appellant, the evidence-in-chief
by the five-year-old complainant,
and her cross-examination. The proceedings commenced on 22 March
2011, and continued on 23 March
2011. The manuscript notes recorded
by the magistrate reflect that proceedings continued on 24 March
2011. However, this aspect
of the evidence has not been transcribed.
The record reflects a resumption of proceedings on 1 April 2011. It
is conceded by both
the State and the appellant's counsel that the
record, as it stands, is incomplete and does not contain the evidence
of the complainants'
mother and the complainants' aunt, to whom the
five-year-old complainant made the first report.
[10]
This matter was first set down as an appeal on 16 March 2018, on
which occasion the court adjourned
the matter sine die with
directions that the record be reconstructed to ensure that the
evidence of P[...] M[...], N[...]y M[...]
and the appellant is
transcribed. It is not apparent from the record whether the appellant
gave evidence at the trial. It is recorded
that the presiding
magistrate enquired from the appellant's counsel whether she intended
calling a witness, to which the response
was that the defence was
going to be closing its case. I can only assume that when the matter
came before this court on 16 March
2018, the court was of the view
that the appellant had also testified, and that his evidence was also
missing.
[11]
The matter again came before the court on 31 May 2019, where it was
adjourned as the previous
order had not been complied with. A similar
adjournment was granted on 21 February 2020.
[12)
As matters stand, the record is incomplete and no compliance with the
previous orders by this court has been achieved. However,
it should
be noted that attempts have been made by the appeals clerk at the
regional court, as well as the appellant, to locate
the exhibits and
the original recordings of the proceedings. All of these attempts
have come to naught. The appeals clerk has stated
under oath that the
record could not be reconstructed and that the national office of the
Department of Justice was unable to retrieve
the missing portions of
the record that were mechanically recorded.
[13]
It is submitted on behalf of the appellant that it would be unfair
and an infringement of his
rights to a fair trial to proceed to
determine this appeal in the absence of the remaining portions of the
evidence. See
S v Mantsha
2006 (2) SACR 4
(C). In this regard
it was contended that without a copy of the transcript, the appellant
is unable to highlight contradictions
in the evidence of the State
witnesses, which have a bearing on whether the appellant's version
can be said to be reasonably possibly
true. In addition, the record
does not contain the J88, nor a sketch of the injuries that may have
been evident to the doctor who
examined the complainants, albeit
approximately two weeks after the incident. Such evidence would be
critical in determining whether
the evidence of the two minor
complainants can be safely relied on to secure a conviction. As the
Constitutional Court stated in
Schoombee and another v S
2017
(2) SACR 1
(CC), para 20, the 'reconstruction... is "part and
parcel of the fair trial process"'.
[14]
It is clear from
S v Chabedi
that the issue is whether, having
regard to the defects in the preparation of the record, and the
issues raised by the appellant,
the record as it stands is sufficient
for the court to make a fair determination on the merits. As stated
earlier, the evidence
of the appellant and two State witnesses who
were called to corroborate the version of the five-year-old
complainant cannot be
transcribed. No fault can be attributed to the
appellant or his representatives who have attempted to obtain a
transcript of the
missing parts of the record. The magistrate who
presided in the matter is no longer in the service of the judiciary,
and is reported
to have emigrated.
[15]
In this matter, the mother of the two minor complainants (relying on
the court a quo's judgment
alone) appeared to have failed her
children. She left them locked up in an outbuilding, without any care
for their well-being.
She went out to a party on a Saturday evening
and only returned on the Monday morning. It is during this period
that the complainants
were allegedly raped. The complainants'
interests are again met with a disservice by the failure of the
criminal justice system
to ensure that records are safely and
properly kept, until all avenues by an accused person are exhausted.
However, the criminal
justice system should not protect the interests
of the accused only. There must also be fairness to the public,
represented by
the State, and to the victims of crime and their
families. The Constitutional Court in
S v Jaipal
[2005] ZACC 1
;
2005 (1) SACR
215
(CC) para 29 noted that:
'The
right of an accused to a fair trial requires fairness to the accused,
as well as fairness to the public as represented by the
State. It has
to instil confidence in the criminal justice system with the public,
including those close to the accused,·
as well as those
distressed by the audacity and horror of crime'.
The
failure to produce a complete record of the trial leaves the
complainants with no recourse in respect of events which leave

indelible scars on them.
[16]
In light of these circumstances, it is not possible for the appellant
to exercise his constitutional
right to a fair trial, including his
right to appeal, given the absence of the crucial portions of the
record. Counsel for the
State therefore submits, and with which
submission this court agrees, that the appeal be upheld and that the
convictions and sentences
imposed on the appellant be set aside. It
has been further contended that the matter be remitted to the
Director of Public Prosecutions
for further consideration.
[1]
[17]
In the result I propose the following order:
The
appeal is upheld and that the convictions and sentences imposed on
the appellant are set aside.
CHETTY
J
I
agree
ME
NKOSI J
Appearances
For the appellant:
P Marimuthu
Instructed by:
Legal Aid South
Africa
For the respondent:
TV Chetty
Instructed by:
Director of Public
Prosecutions, Pietermaritzburg
Date of Hearing:
12 May 2023
Date of Judgment:
29 May 2023
[1]
Sees 324 of the CPA which deals with 'Institution of proceedings de
nova when conviction set aside on appeal'. See 5 v Quali
1989 (2) SA
581
{E) at 584C:
'In
my view therefore the proper course in the present matter is merely
to set aside the conviction. It will be open in my view
to the
prosecuting authority to determine whether or not to prosecute the
accused de nova.'
See
also
S v Zondi
2003 (2) SACR 227
(W)para 20 - 24
:
[24].
In the premises, I am  of the opinion that the appellant's
submission should be rejected and that he is
not entitled
to an acquittal in the event of the record being found to be
inadequate
for purposes of considering and determining
the appeal and incapable of further reconstruction. In that event
there will have
been
a technical irregularity or defect in
the proceedings as contemplated ins 324(c) of the
Criminal Procedure Act and the proceedings
in
the court a quo should in that event be set aside on that ground and
the conviction and sentence rescinded.

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