Khanye v S (A118/2021) [2022] ZAFSHC 36 (28 February 2022)

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[2022] ZAFSHC 36
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Khanye v S (A118/2021) [2022] ZAFSHC 36 (28 February 2022)

IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
Interest to other Judges:   NO
Circulate
to Magistrates:       NO
APPEAL
NUMBER: A118/2021
In the matter
between:
FANIE JOHANNES
KHANYE
APPELLANT
and
THE
STATE
RESPONDENT
HEARD
ON:
28 FEBRUARY
2022
CORAM
:
NAIDOO, J et CHESIWE,
J
JUDGMENT
BY:
NAIDOO,
J
DELIVERED
ON:
28
FEBRUARY
2022
[1]
The appellant was
convicted during 2011, in the Villiers Regional Court, for the rape
of a minor child. He was sentenced on 4 December
2011 to life
imprisonment.  The appellant approaches this court in terms of
his automatic
right of appeal, and the appeal lies against both his conviction and
sentence. Ms S Kruger appeared for the appellant
and Mr EB Ontong for
the respondent.
[2]
The Appellant’s
grounds of appeal against the conviction and sentence are, in
essence, that the court
a
quo
erred in:
2.1
finding that the
state had proved its case, and
2.2
not evaluating the
evidence in a balanced manner;
2.3
attaching too much
weight to the factors in aggravation (of sentence), and the interests
of society;
2.4
not attaching any
weight to the appellant’s personal and mitigatory circumstances.
[3]
The court in this
matter is faced with the difficult situation that almost no appeal
record is before us in order to decide this matter.
An
affidavit was filed by Ms Petunia Esterhuizen, the clerk stationed at
the Heilbron Magistrates Court, and who is responsible
for compiling
and preparing appeal records before they are enrolled for hearing.
She avers that she was unable to prepare the full
transcripts in this
matter as the recordings relevant to the trial could not be traced.
The charge sheet was retrieved from the electronic
court management
system, but even that appears not have recorded some of the court
appearances, including the one for the day that
sentence was handed
down. It bears the details of the charge so one is able to glean that
the date of the commission of the offence
was 5 September 2010. Ms
Esterhuizen further avers that she was unable to obtain the original
charge sheet or even make copies of
the relevant court books as these
were destroyed in a fire at the Heilbron Magistrates Court on 16
February 2015.
[4]
Ms Esterhuizen
indicates that she made several enquiries and searched diligently for
the recordings in this matter, but in spite of
even being assisted by
colleagues in her search, she was unable to trace the relevant
recordings. She approached the magistrate who
presided in the matter,
but was advised that he retired from service and was no longer in
possession of his trial notes. The attorney
who represented the
appellant no longer works for the Legal Aid office and the latter
were unable to find any file or trial notes
relating to this matter.
The prosecution, likewise, informed her that they have no trial notes
of this matter and would not be able
to assist with the
reconstruction of the record. She is, therefore, unable to prepare a
complete or accurate record of the proceedings
in the trial court.
[5]   I
pause to mention that the recordal of court appearances in the copy
of the charge sheet that has been filed, is
in the handwriting of the
magistrate, and has not been typed for the benefit of this court. It
is difficult, if not impossible, to
read the magistrate’s
handwriting, so the charge sheet is of no assistance. The face of the
charge sheet also does not record how
the accused pleaded, whether he
was found guilty or not guilty, and what sentence was handed down, as
is customary with charge sheets
in the Magistrates’ Court. The copy
of the medico-legal examination report by the relevant doctor (the
J88 form), bears the details
of the complainant, showing she was
eight years old at the time of examination on 7 September 2010 and
shows extensive injuries to
her genital area. The doctor’s
conclusion was that there was definite penetration and goes on to
describe the injuries in support
of this conclusion. Therefore, such
of the record that has been placed before us does not contain the
plea proceedings, the evidence
led before the trial court, any
rulings made or the judgment and sentence handed down by the trial
court
[6]
There is, therefore, nothing before this court which would enable it
to hear this appeal, properly evaluate the grounds
of appeal and make
a determination in regard to the correctness/fairness or otherwise of
the appellant’s conviction and sentence.
It is clear however, that
he was convicted and sentenced as indicated earlier, has been serving
his sentence since 4 December 2011,
and has served just over 10 years
and two months of that sentence.
[7]   It
is well established in our law that the failure by the state to
furnish a complete or adequate record of trial
proceedings, and a
failure to reconstruct the record, affects the appellant’s right to
fair trial, causes him prejudice and may
result in a failure of
justice. The appellant and the respondent referred to the matter of
Phakane v The State 2018(1) SACR 300 (CC)
where portions of
the record in the trial court were incomplete or missing and could
not be reconstructed. On appeal to the Full Court
of the relevant
High Court, the latter ruled that, the absence of the transcript
relating to the evidence of the main state witness,
did not preclude
it from being able to fairly hear the appeal. It upheld the
conviction and reduced the sentence handed down by the
trial court.
[8]
Zondo J in Phakane, in undertaking a detailed analysis of the effect
of the missing evidence, said at para 38:
“
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.”
The
decision in
S
v Joubert 1991(1) SA 119(A)
was referred to in Phakane. The court in Joubert said at para 126,
citing the case of
S
v Marais
1966
(2) SA 514 (T)
at
517A – B:
'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.'
[9]
An accused person’s fair trial and fair appeal rights were,
therefore, protected even in pre-Constitutional
times.  The
impact of an incomplete record on the right of the appellant to a
fair appeal was also considered in S v Chabedi
2005(1) SACR 415
(SCA), where the court said at paras 5 -6:
“
[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….
[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.”
[
See
also S v Schoombee 2017(2) SACR 1 (CC); S v Nkhahle
2021
(1) SACR 336
(FB)
]
[10]
As I indicated earlier in this judgment, there is almost nothing
before this court upon which a determination can
be made. It is most
unfortunate that this situation has arisen, particularly as a very
young child was seriously violated. The fact
that the incident
happened eleven and a half years ago and the appellant was convicted
over 10 years ago does not assist matters.
People have moved on,
retired or have disposed of their notes. The fire at the Heilbron
Magistrates’ Court appears to have destroyed
much, including the
records relevant to this matter. There is no indication or
explanation of when the appellant lodged his Notice
of Appeal, and
one is left wondering why it took him so long to do so. When asked by
the court for further information in this regard,
Ms Kruger advised
that the Bloemfontein office of Legal Aid only became aware of this
matter in November 2021, when they received
the file. Prior to that,
their Bethlehem office had been dealing with this matter.r Ontong was
also asked what efforts were made
to obtain the record in this
matter. He advised that he called for the docket and, after some
difficulty, he obtained the docket,
and was able to see that there
were three witnesses. He then made attempts to obtain the transcribed
record from the transcribers,
but in the end that also came to
naught. He then decided that it would re-traumatise the complainant
to argue for a re-trial after
so many years. In any event, the
appellant asks that, in view of the impossibility to reconstruct the
record, his conviction and
sentence be set aside, and the respondent
(the state) is in agreement       .
[11]
The appellant’s right to a fair appeal have been compromised and
rendered nugatory, and where the appeal court
is unable, as a result
of an incomplete record, to determine the appeal, the conviction and
sentence must be set aside. In the circumstances,
the following order
is made:
11.1
The appeal is upheld
11.2
The conviction and sentence imposed on the appellant are set aside.
NAIDOO,
J
I concur.
CHESIWE,
J
On
behalf of appellant:    Adv S Kruger
Instructed
by:
Legal Aid
South Africa
Bloemfontein
Local Office
On
behalf of respondent:    Adv. EB Ontong
Instructed
by:
The
Office of the DPP
BLOEMFONTEIN