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[2022] ZAFSHC 321
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Mofokeng v S (A99/2022) [2022] ZAFSHC 321 (17 November 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
number: A99/2022
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
NEO
DENNIS
MOFOKENG
Appellant
and
THE
STATE
Respondent
CORAM:
MHLAMBI,
J et LOUBSER, J
HEARD
ON:
14
NOVEMBER 2022
JUDGEMENT
BY:
LOUBSER,
J
DELIVERED
ON:
17
NOVEMBER 2022
[1]
The Appellant in this appeal was found guilty of raping a 3 year old
girl in the Frankfort
Regional Court on 7 February 2012, and on 12
June 2012 he was sentenced to life imprisonment for the crime he
committed. He now
appeals against his conviction and the sentence
imposed, but this Court finds itself in a position where the appeal
cannot be considered
since the record of proceedings in the Court
a
quo
is not available.
[2]
In his Notice of Appeal, the
Appellant contends that the State failed to prove its case
beyond a
reasonable doubt, and that his version should have been accepted as
being reasonably possibly true. He further contends
that the Court
a
quo
failed to consider the evidence in a balanced manner, which
failure resulted in his conviction. It therefore follows that this
Court needs to be furnished with the record of proceedings to enable
us to consider the grounds of appeal as far as it relates to
the
conviction, as a starting point at least.
[3]
Unfortunately this cannot be done. The only documents we have before
us, comprise
of the J15 form in the Court
a quo
, a copy of the
charge sheet, a copy of the J88 medical report relating to the child
complainant, documents concerning the collection
of forensic evidence
for DNA purposes and a victim impact report by a probation officer.
The record of the proceedings itself,
and more particularly of the
evidence presented before conviction, is absent.
[4]
An affidavit by Petunia Esterhuizen, an administrative officer at the
Magistrate’s
Court, Heilbron, was placed at our disposal to
explain the absence of the record of proceedings. In the affidavit,
she states the
following: She is the official responsible to ensure
that transcripts are prepared and records are completed before an
appeal is
enrolled. In this case, the full transcripts could not be
prepared, because the recordings could not be traced. They were
probably
destroyed in a fire at the Heilbron Court on 16 February
2015. The presiding officer in the Court
a quo
has since
retired, and he does not have his trial notes anymore. The legal
representative of the Appellant at the trial and the
prosecution were
also unable to assist with any trial notes. In the premises, Ms
Esterhuizen advised that it is not possible to
reconstruct the trial
proceedings.
[5]
It appears from the authorities that in similar circumstances, where
the records of
proceedings were not available and could not be
reconstructed, the appeals by those affected were upheld and the
convictions and
sentences set aside. The cases of
S
v Van Wyngaardt
[1]
, S v
Collier
[2]
, S v Marais
[3]
,
and
S
v Joubert
[4]
,
amongst others, are relevant in this respect.
[6]
The position is therefore that the same route has to be followed in
the instant appeal.
Mr. van Rensburg, who appeared for the State
before us, agreed that this is the only available option in the
circumstances.
[7]
However, it does not mean that the Appellant will simply be entitled
to an acquittal.
Section 324 (c) of the Criminal Procedure Act
[5]
provides that whenever a conviction and sentence are set aside by the
court of appeal on the ground that there has been any technical
irregularity or defect in the procedure, proceedings in respect of
the same offence to which the conviction and sentence referred,
may
again be instituted on the original charge, suitably amended where
necessary, or upon any other charge as if the accused had
not
previously been arraigned, tried and convicted, provided that no
judge or assessor before whom the original trial took place,
shall
take part in such proceedings.
[8]
The absence of any record of proceedings qualifies as a technical
irregularity or
defect in the procedure. The provisions of Section
324 (c) are therefore applicable
[6]
.
[9]
In the premises, the following orders are made:
1.
The appeal is
upheld.
2.
The conviction
and sentence of the Appellant are set aside.
3.
The matter is
referred to the Director of Public Prosecutions, Free State, for
consideration in terms of
Section 324(c)
of the
Criminal Procedure
Act 51 of 1977
.
P.
J. LOUBSER, J
I
concur:
J.
J. MHLAMBI, J
For
the Appellant:
Ms.
L. Smit
Instructed
by:
Justice
Centre (Legal Aid)
Bloemfontein
For
the Respondent:
Adv. E. van Rensburg
Instructed
by:
The
Director of Public Prosecutions, Free State
Bloemfontein
[1]
1965
(2) SA 319
(O)
[2]
1976
(2) SA 378
(C) at 379 C-D
[3]
1966
(2) SA 514
(T) at 517 A-B
[4]
1991
(1) SA 119 (AD)
[5]
Act 51
of 1977
[6]
S v
Zondi
2003 (2) SACR 227
(W)