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[2024] ZAECMKHC 35
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Sijila v S (CA & R93/2023) [2024] ZAECMKHC 35 (19 March 2024)
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Certain
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IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
Case no: CA&R
93/2023
In the matter between:
SICELO
SIJILA
APPELLANT
and
STATE
RESPONDENT
JUDGMENT
Zilwa AJ
[1]
The
Appellant comes to this court on appeal against the two sentences of
Rape. He was sentenced to life imprisonment in respect
of the first
count whilst he was sentenced to 10 years’ imprisonment in
respect of the second count. He has relied on his
automatic right to
appeal.
[2]
The
Appellant was legally represented in the court
a quo.
Afore
the trial commenced the terms of the legislatively prescribed minimum
sentences and the consequences thereof were explained
to the accused.
[3]
The
Appellant’s heads of argument, paragraph 30 thereof, suggest
the setting aside of both conviction and sentence. The grounds
of
appeal only addressed sentence and nothing has been said in attacking
the conviction. In any event this court finds no fault
on conviction
and for that reason I will deal with that issue no further.
[4]
In
respect of Count 1, it was alleged that on 4 July 2009, in Adelaide
in the Eastern Cape, the Appellant did unlawfully and intentionally
commit an act of sexual penetration with one N[...] G[...], an 18
year old female, without her consent, whereas in respect of Count
2,
it was alleged that on 25 April 2009, near Adelaide in the Eastern
Cape, the Appellant did unlawfully and intentionally commit
an act of
sexual penetration with an adult female, one B[...] M[...], without
her consent.
[5]
The
appeal against sentence is premised on the fact that the record in
the court
a quo
went missing and it had to be reconstructed.
The only record that could be retrieved was only up to the argument
stage prior to
sentencing. The record in respect of sentencing which
comprises of aggravation and mitigation could not be located. During
sentencing
the court
a quo
had the following to say:
“
SENTENCE
COURT:
So
due to the fact that the court was unable to obtain statements from
the prosecutor and Mr Mavuso, and there is no record of it,
the court
will go on what the court has.”
[6]
The
Court further placed on record the following:
“…
So
the court was approached to reconstruct the record regarding the
judgment and the sentence. The court has tried it’s best
to
reconstruct the judgment and the sentence and further the court was
unable to contact the prosecutor, Mr Page, or the legal
representative, Mr Mavuso to assist with the addresses that they have
done, so the court has done its best and is n
ow
going to record the judgment as per the reconstruction.”
[7]
This
matter, which comprises of an incomplete record is now serving before
us, as an appeal court, and an expectation is that justice
should be
dispensed to both parties. The first question that should be asked is
whether it will be possible for this court to discharge
its duty
based on an incomplete record. The second question would be whether
it will be in the interest of justice to proceed to
hear the appeal
and make a determination based on an incomplete record nonetheless.
[8]
The
Appellant is crying foul and lamenting that the magistrate’s
decision to unilaterally reconstruct the record without the
assistance of other role-players has resulted in the missing of
crucial information. This information includes Appellant’s
personal circumstances and his level of education etc. It does not
even appear whether the Appellant had children to support and
whether
he was a primary caregiver. His family background does not appear on
the record.
[9]
It
should be emphasized that the process of reconstruction of the record
should be a collaborative effort that should be undertaken
scrupulously and meticulously by all parties involved.
[1]
[10]
Our
courts have been faced with appeals and reviews where the records
have been incomplete or lost and some guidance needs to be
given as
to how to deal with such situations.
[11]
Inasmuch
as this judgment is dealing with an appeal, the approach finds full
application even on criminal reviews.
The approach to lost
and incomplete records
[12]
In
S
v Nkhahle
[2]
,
Daffue AJP (with Loubser J concurring), succinctly dealt with the
issue of incomplete records on appeal, wherein he made the following
remarks regarding the duties of the stenographer:
“
[15]
What
is most disturbing is the fact that the stenographer — also
known as the DCRS or CRT clerk — did not do his/her
most basic
duties: either to switch on the machine and to test the machine and
all the microphones before the start of proceedings,
or to listen
back to the recordings from time to time, i.e. during tea time, lunch
time or immediately after the day’s proceedings.
If that was
the case, he/she would have picked up early on the very first day of
the proceedings — 1 September
2017 — that
nothing was recorded. Then the matter would still be fresh in the
minds of everybody and their notes intact.
A reconstruction would
have been easy to do. The same applies to the second trial date, to
wit 8 September 2017. The excuse that
no server was installed in
Ventersburg where the trial was conducted is just too lame to accept.
I would have thought that back-ups
are made on a daily basis by
making use of memory sticks or CD’s.”
[13] The
Learned Judge proceeded to restate the duty of a presiding officer to
keep a record of proceedings
and he succinctly did so by stating the
following:
“
[17]
. . .
[17.1]
There
is a duty on a presiding officer to keep a record of the
proceedings.
I
agree with Thulare AJ, [as he then was] commenting as follows:
‘
The court clerk is
the recorder of the court proceedings, the clerk of the court is the
custodian of court records and the trial
magistrate is the
constructor of court records through presiding over court
proceedings. On the general consideration of all the
factors herein
discussed, I find myself unable to find that the duty to reconstruct
a record lies with the clerk of the court.
In my view, the duty to
reconstruct lies with the trial magistrate.’
[17.2]
The
Judge President of this division warned presiding officers in a PEEC
meeting of 27 March 2019 as follows:
‘
The Chairperson
indicated that he has a list of Magistrates who allow incomplete and
unchecked records to be submitted to the High
Court. A Magistrate
whose name appears on that list will not be allowed to act in the
High Court as a Judge, and such information
will be made use of when
such a person applies to be appointed as a Judge. He urged Mr Mathews
to inform the Regional Court Magistrates
about this.’
[17.3]
I
was provided with an extract of the file in petition No 10/2018, RC
04/2016, where Judge President Musi requested a reconstruction
of the
court record. The same prosecutor was involved, and his written
explanation read about word for word the same as in this
case. The
same regional magistrate as in casu had the following to say:
‘
The notes I have
for cases that have been finalised in RCP Welkom are in a state of
disarray; How that has happened is unbeknown
to me.
I therefore will not be
able to reconstruct any of those cases because of the possibility of
relevant evidence missing or important
parts of same being mixed up
with other cases. I have tried to put them together but still believe
that it is far too risky to
reconstruct the entire proceedings as is
required in this matter.
The only comment I allow
myself to make in this regard is that it would be a travesty of
justice if more and more convicted criminals
are allowed to walk free
because of incomplete or lost records. Regional magistrates deal with
serious criminal cases and may even
impose life imprisonment.
Record-keeping should be prioritised.’
[17.4]
The
Constitutional Court held as follows in
S v Schoombee and
Another
and I prefer to quote
quite extensively:
‘
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.
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”. 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 parties to reconstruct 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 the accused’s position on the
reconstructed record. In addition,
a report from the presiding
judicial officer is often required.
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. . . . The
loss of
trial court records is a widespread problem. It raises
serious concerns about endemic violations of the right to appeal.
Reconstruction
should not be the norm in providing appellants with
their trial records. But when reconstruction is necessary, the
obligation lies
not only on the appellant, but indeed primarily on
the court to ensure that this process complies with the right to a
fair trial.
It is an obligation that must be undertaken scrupulously
and meticulously in the interests of criminal accused as well as
their
victims.’
This warning by the full
Constitutional Court — a unanimous decision by 10 judges —
cannot be overemphasised and my
observations herein are in line
therewith. In that case the trial judge kept detailed notes of the
proceedings, but when the record
had to be reconstructed, he did not
ask any inputs from the legal representatives of the parties. This
left the door open for the
appellant’s legal representative to
change tack when the Constitutional Court was approached by relying
on an insufficiently
transparent record insofar as the parties did
not jointly undertake the reconstruction. The criticism was
considered as is clear
from the quotation, but the court found
against the appellant. Significantly, no directives were forthcoming
from the Constitutional
Court as to how the problem of improper
record-keeping should be addressed.
[17.5]
In
S v Phakane
the
Constitutional Court stated 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
right to a fair appeal nugatory or illusory. Even before the advent
of our constitutional democracy, the
law was that, in such a case,
the conviction and sentence or the entire trial proceedings had to be
set aside.’
Again, as in
Schoombee
,
no directives were issued in an attempt to prevent the numerous
problems experienced with missing or incomplete records. Froneman
J
agreed with the majority that the appeal ought to succeed but
suggested in his minority judgment ‘that the matter be remitted
to the High Court for an investigation into whether a retrial should
proceed’. In my view a retrial in that case would
probably
be a waste of time insofar as the murder had been committed in 2006,
12 years earlier.”
[14] It
is also vital to underscore that, in
Nkhahle,
the
learned Judge further observed that the position in most, if not all
the Divisions of the High Court, regarding missing
and incomplete
records, was the same and he had the following to say:
“
[16] It
becomes more and more prevalent, from my own experience dealing with
reviews and appeals in this
division, but also reading judgments from
other divisions, that courts of appeal are confronted with missing
and/or incomplete
records. Something needs to be done urgently. We
are living in the digital era, the so-called fourth industrial
revolution, but
it is often forgotten that the human element can
never be ignored. Machines and sophisticated equipment must be
operated by people
and if the operators do not possess the necessary
skills, the best equipment in the world becomes useless. I shall make
some suggestions
infra.”
[15] The
learned Judge proceeded and made certain suggestions pertaining to
record-keeping and custody of
records, where he said at paragraphs
[24] to [25]:
“
[24]
In
years gone by magistrates did the recordings themselves by having
tape recorders on their benches and inserting tapes to record
the
trial proceedings, properly identifying the various tapes and making
sure that the tapes were safeguarded for future reference.
I recall
from experience that magistrates also kept their handwritten notes
for some time in order to ensure that transcribed records
could be
amended or supplemented when the need arose and have reason to
believe that it is still the case in respect of most of
them. It
appears as if the regional magistrate wants to convey that somebody
has stolen the particular notes of the case kept in
her custody in
her office. If this is accepted, it is a serious reflection on
security and the matter should be investigated.
[25] Advocate
Botha of the DPP’s office in Bloemfontein informed the court
from the bar that his office
has a system in place in terms whereof
the records and notes of all criminal cases dealt with by that office
are systematically
stored and preserved. Fact of the matter is that
prosecutors are supposed to keep notes primarily in order to assist
when the need
arises as mentioned supra, but also to assist the
presiding officer to reconstruct a record if so required. I am glad
to hear from
Mr Reyneke that the office of Legal Aid South Africa in
Bloemfontein keeps records for five years and that their notes can be
retrieved
at any given time. This is obviously also the case at the
Kroonstad office, although the initial search for the relevant file
was
unsuccessful.”
[16] Considering
the sentiments expressed in
Nkhahle
regarding the
stenographer, the Regional Magistrate and the public prosecutor; and
the authoritative judgment of the Constitutional
Court
in
Schoombee
regarding reconstruction of records, it
is apposite to highlight some of the aspects which may have a bearing
in addressing
the problems encountered with lost and incomplete
records.
[17] On
the other hand section 4(1) of the Magistrates Court Act
[3]
,
provides that a court is a court of record. For this reason alone, a
presiding officer is required to keep notes of proceedings
in his/her
court. Put it differently, the primary responsibility of ensuring
that there is a court record lies squarely on the
magistrate.
[18]
In conclusion,
I can do no more than referring to the case
S
v Mthembu
[4]
at
paragraph [17] , where Ponnan JA and Petse AJA (writing for the
Court) with due reference to two earlier SCA decisions,
namely S
v
Legoa
[5]
and S
v
Ndlovu
[6]
,
stated that ‘a fair trial enquiry does not occur
in
vacuo
,
but . . . is first and foremost a fact-based enquiry’. The
effect of an incomplete record on appeal, which applies equally
to
reviews, which impacts such fact-based enquiry, was aptly stated in
S
v Chabedi
[7]
,
at
paragraph 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 . . .”
[19] The
incomplete record in this matter with no transcription of the vital
portion of the proceedings or
proper reconstruction of the record, is
inadequate for a proper consideration of this appeal. The injunction
in
Chabedi
is accordingly triggered and the entire
proceedings on sentence stand to be set aside.
[20] It
is my view that the record is inadequate since there could be no
proper appraisal of the evidence
on sentencing that could be
exercised. The proceedings cannot be said to be in accordance with
justice and this court cannot exercise
its judicial powers correctly.
For this reason the Appellant is entitled to a result.
[21] Accordingly,
the appeal succeeds and the following order shall issue:
1. The appeal against
sentence is upheld and the sentence is hereby set aside
2. The matter is remitted
to the court
a quo
for reconsideration and hearing on
sentence.
H. ZILWA
JUDGE OF THE HIGH
COURT (ACTING)
MAKAULA J
I agree
M. MAKAULA
JUDGE OF THE HIGH
COURT
Appearances:
For Appellant:
Adv MT Solani
Instructed by:
Legal Aid South Africa, Makhanda
For Respondent:
Adv T. Soga
Instructed by:
National Director of Public Prosecutions, Makhanda
Date Heard: 13 November
2023
Date Delivered: 19 March
2024
[1]
See:
S
v Nkute
2021 JDR 2307 (GP); [2021] ZAGPPHC 574; 2022 (1) SACR 436 (GP)
[2]
S v
Nkhahle
2021
(1) SACR 336
(FB);
[2020] ZAFSHC 246
Also see:
S
v Lamola
2013 JDR 1676; [2023] ZAGPJHC 668 (GNP);
S
v Paledi
2006 JDR 1044 (T); [2016] ZAFSHC 128
[3]
Magistrates Court Act
32
of 1944
[4]
S v
Mthembu;
[2011] ZASCA 179
;
2012
(1) SACR 517 (SCA)
[5]
S v
Legoa
[2002] ZASCA 122;
2003
(1) SACR 13 (SCA); [2002] 4 All SA 373 (SCA)
[6]
S v
Ndlovu
2002
JDR 0502 (SCA); 2003 (1 ) SACR 331 (SCA ); [2002] ZASCA 144; [2003]
1 All SA 66 (SCA)
[7]
S v
Chabedi
[2005] ZASCA 5
;
2005
(1) SACR 415
(SCA); Also see:
S
v Sebothe and Others
2006 (2) SACR (T) para [8]