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2023
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[2023] ZAECMKHC 6
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Manga v S (CA&R 240/2019) [2023] ZAECMKHC 6 (25 January 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
CASE NO: CA&R
240/2019
Heard on: 3 August
2022
Judgment delivered on:
25 January 2023
In
the matter between:
SIPHIWO
MANGA
Appellant
and
THE
STATE
Respondent
JUDGMENT
MALUSI
J:
[1]
The appellant was arraigned in the Regional
Court sitting in
East London
on
one count of the rape of a child and a second count of the sexual
assault of the same child. He was convicted as charged
and
sentenced to twelve
(12)
years’ imprisonment on the first count and four
(4)
years’ imprisonment on the second count. The two
(2)
sentences were ordered to run concurrently. Leave to appeal against
both conviction and sentence was granted on petition to the
Judge
President.
[2]
The charges arose from an incident which
occurred on 8 January 2013 at the police barracks in
East
London
. It was alleged the appellant
digitally penetrated the complainant’s vagina. Shortly
thereafter he allegedly touched the
complainant’s breasts and
buttocks while causing her to touch his erect penis which resulted in
him to ejaculate on her hand.
[3]
The appellant pleaded not guilty to both
counts when the trial commenced on 14 January 2016. The
State
called the complainant and five
(5)
other witnesses. The appellant testified in his own defence and
called one
(1)
witness. He was convicted and sentenced on 7 February 2017.
[4]
It appears in the course of preparing the record for the petition to
the
Judge President
that the transcript of the evidence was discovered to have been
incomplete. The
Clerk of the Regional
Court
deposed to an affidavit that the
trial preceded her working in that particular court.
Consequently, she bore no knowledge
about the case record. The
prosecutor stated in his affidavit that his notes relating to the
trial were lost. His efforts in May
2021 to trace the defence
attorney who defended the appellant were in vain as no person knew
where the attorney was based. The
regional magistrate deposed to an
affidavit in an attempt to reconstruct the missing portion of the
evidence based on his contemporaneous
notes taken during the trial.
[5]
The regional magistrate’s reconstruction is particularly terse
considering the
number of witnesses it covered. It is rendered
in a narrative style instead of the more preferable question and
answer format.
The cross-examination of the complainant was
covered in five
(5)
questions raised by the defence attorney. The evidence of the
complainant’s mother and her colleague was conflated
as though
it was the evidence of a single witness. The cross-examination
of the complainant’s mother was summarised,
but perfunctorily.
There is no indication whether her colleague was cross-examined at
all. Both the evidence of the
boyfriend to the complainant’s
mother and that of another resident in the police barracks were
summarised in a most cursory
manner, effectively amounting to a
single sentence for each witness. It was stated that the
medico-legal report
(J88 form)
was admitted as an exhibit with the appellant’s consent.
It was not indicated whether the doctor who compiled the report
testified as a witness.
[6]
The evidence in chief tendered by the appellant was reconstructed
effectively in four
(4)
sentences. His version of what transpired between him and the
complainant during the incident was not provided at all by
the
regional magistrate.
[7]
Every accused person has a right to a fair trial as provided in
s35(3) of the Constitution
.
The
Constitutional Court
has stated that:
“
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, as a rule, lead to the
conviction and sentence being set aside.”
[1]
(Footnotes
omitted).
[8]
It has been held that where it is clear from the record that material
evidence was
unavailable so that a fair assessment of the record was
not possible, the matter must be set aside.
[2]
In each case it must be determined whether the defects in the record
are so serious that the appeal could not be properly
considered.
The factors to be considered, among others, are the nature of the
defects in the record and the issues that fall
to be decided.
[3]
[9]
The test is whether the record as reconstructed is substantially
correct, complete
or adequate and not whether it is a perfect
recordal of the trial.
[4]
Where missing portions of the evidence that cannot be reconstructed
contain material evidence and the parties cannot come
to an agreement
by making the relevant admissions, the proceedings must be set
aside.
[5]
Where it is
clear from the record that so much material evidence is missing to
render impossible a fair assessment of the
record, then the
proceedings had to be set aside.
[6]
[10]
The procedure regarding the reconstruction process is settled in our
law. The accused is
entitled to participate in the process and
be informed what is recorded as reconstruction of the lost
evidence.
[7]
The
reconstruction must be done in open court with both the defence and
the state participating.
[11]
A reconstruction, even if imperfect or done procedurally improperly,
is not necessarily fatal
to a consideration of an appeal. The
decisive factors are whether the appellant will not be prejudiced and
the adequacy of
the record.
[12]
The issue to be determined on appeal is whether the regional
magistrate, on the evidence before
the trial court, correctly found
that the appellant had committed the offences. This requires an
evaluation of the evidence.
The question to be decided is whether the
record is complete or adequate for this exercise to be performed.
[13]
It is common cause that except for the complainant’s evidence
in chief, the rest of the
state case has not been mechanically
transcribed. Part of the appellant’s evidence in chief
has been transcribed.
Part of it was reconstructed. The
extent of the missing portion is impossible to determine due to the
manner it was reconstructed.
Clearly a substantial portion of the
evidence led during the trial was reconstructed.
[14]
It is manifest in paragraphs 5 and 6 above that the reconstruction
was wholly inadequate.
The magistrate repeatedly stated that
the matter was ‘
simple’.
This appears to have informed his
approach to the reconstruction. The regional magistrate, with
respect, adopted no more than
a cursory approach to the
reconstruction of the record. This is highlighted by the fact
that the summary of the state case
in the judgment is more
substantial than the reconstructed evidence of that portion of the
trial. This inadequacy is compounded
by the fact that the
appellant’s evidence and his witness have not been summarised
in the judgment.
[15]
The inadequate reconstruction has been aggravated by the procedural
failures. The regional
magistrate appears to have done the
reconstruction from his notes with neither the state nor the defence
being involved.
The prosecutor deposed to an affidavit
approximately three
(3)
weeks after the reconstruction but makes no comment on the
reconstructed evidence. He only states that he could not find
his notes. There is no evidence that the appellant was asked to
participate or comment on the reconstructed evidence.
All
indications are that the reconstruction was not done in open court.
[16]
After a detailed and anxious consideration of the record, I come to
the conclusion that the record
is wholly inadequate. It will be
prejudicial to the appellant for the appeal to be considered on the
basis of such an inadequate
record. It is trite that all the
evidence must be considered before a court comes to a decision.
In circumstances where
it is impossible to consider material and
substantial portions of the evidence, it will be unfair to the
appellant to determine
the appeal.
[17]
The outcome of this appeal is not based on a consideration of the
merits of the matter.
The above findings amount to a technical
irregularity or defect as contemplated in
s324(c)
read with
s313
of the
Criminal Procedure
Act 51 of 1977
. This is a serious
case as it involves allegations of the sexual violation of a child.
The Director of Public Prosecutions
has a discretion to decide
whether to charge the appellant
de novo
before another magistrate.
[18]
In the result it is ordered that:
18.1
The conviction and sentence are set aside.
T MALUSI
JUDGE OF THE HIGH
COURT
I agree:
J G A LAING
JUDGE
OF THE HIGH COURT
Appearances
:
For
the Appellant: Adv Mhambi
instructed by
Mbulelo
Qotoyi Attorneys
32
Eagle Street
MTHATHA
c/o
Yokwana Attorneys
10 New
Street
MAKHANDA
For
the Respondent: Adv Hendricks
instructed by
Director
of Public Prosecutions
MAKHANDA
[1]
S
v Schoombee & Another
2017
(2) SACR 1
(CC) at para 19.
[2]
S
v S
1995
(2) SACR 420 (T) at 424g-h.
[3]
S
v Chabedi
2005
(1) SACR 415
(SCA) at para 6.
[4]
S
v S
1995
(2) SACR 420
(T) at 423c-d;
S
v Booysen
1996 (2) SACR 393
(E) at 394h;
S
v Chabedi
2005 (1) SACR
415
(SCA) at para 5.
[5]
S
v S
1995
(2) SACR 420
(T) at 424b-c,
S
v Collier
1976 (2) SA 378
(C) at 379c-e.
[6]
S
v S ibid
at
424g-h;
S
v Leslie
2000 (1) SACR 347
(W) at 353c-e.
[7]
S
v Leslie supra
at
354c;
S
v Gora and Another
2010 (1) SACR 159
(WCC) at paras 16-18.