About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2022
>>
[2022] ZAFSHC 337
|
|
Phelembe v S (A98/2022) [2022] ZAFSHC 337 (25 November 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No:
A98/2022
Reportable:
NO
Of
Interest to other Judges: YES
Circulate
to Magistrates: YES
In
the matter between:
EVANS
UNCLE PHELEMBE
Appellant
and
THE
STATE
Respondent
CORAM
:
JP
DAFFUE, J et JJ MHLAMBI, J
HEARD
ON
:
21
NOVEMBER 2022
DELIVERED
ON:
25
NOVEMBER 2022
This
judgment was handed down electronically by circulation to the
parties’ representatives by email, and release to SAFLII.
The date and time for hand-down is deemed to be 13:00 on 25 November
2022.
ORDER
1.
The appellant’s appeal against his
convictions and sentences is upheld.
2.
The order of the court a quo is set
aside and substituted with the following:
‘
The
accused is acquitted on both counts of robbery with aggravating
circumstances.’
JUDGMENT
[1]
This court is yet again confronted with an
appeal that cannot be adjudicated due to an incomplete record.
[2]
On 4 February 2016 the appellant was convicted
in the Regional Court held in Villiers on two counts of robbery with
aggravating
circumstances and sentenced to 8 years’
imprisonment in respect of each count.
[3]
It appears from the annexures to the charge
sheet that two separate offences were allegedly committed on 15
January 2015 and 31
January 2015 respectively. In the first
instance a Volkswagen Polo motor vehicle valued at R89 000.00 was
robbed and in the
second instance a BMW motor vehicle valued R65
000.00.
[4]
The following documents form part of the appeal
record:
a.
the original J15 with annexures and some
notes of the presiding Magistrate pertaining to postponements;
b.
the identification parade form
indicating that the appellant was identified by one witness based on
identification by way of photographs
presented to him and another
witness;
c.
the appellant’s criminal record
appearing from the J69, indicating that he was convicted and
sentenced in respect of housebreaking
with the intent to steal and
theft in 2010.
Save
for these documents and the application for leave to appeal as well
as the judgment of a different Magistrate, granting leave
to appeal,
there is no record of the trial proceedings.
[5]
The presiding officer, Regional Court
Magistrate Aucamp, retired a few years ago and we have been informed
during the hearing of
the appeal that he had passed away in the
meantime.
[6]
Ms Petunia Esterhuizen, employed as an
administration officer by the Department of Justice, stationed at the
Magistrate’s
Court in Heilbron, deposed to two affidavits. She
is responsible to receive all notices and pleadings concerning
appeals as well
as to ensure that transcripts are prepared and appeal
records completed. She mentioned the following:
a.
none of the trial records in this matter
could be traced;
b.
a call was logged to Helpdesk, but no
recording was found to be converted from the Digital Court Recording
System (DCRS) to the
Court
Recording Transcription
(CRT);
c.
enquiries made to the presiding officer
were not helpful in that he had retired by that time and did not have
any trial notes anymore;
d.
the legal representative who appeared
for the appellant on behalf of Legal Aid SA did not work for Legal
Aid SA anymore and no trial
notes or file could be found;
e.
the prosecutor did not have any trial
notes and was not able to assist with the reconstruction of the
record.
[7]
Mr WH de Villiers of the Bethlehem Justice
Centre who appeared for the appellant during the application for
leave to appeal deposed
to an affidavit in support of the appellant’s
application for condonation. Attached to his affidavit is a progress
report
on Heilbron appeals dated 11 October 2019. According to this
report a total of 18 appeals from the Heilbron, Villiers and
Frankfort
courts were affected as a result of incomplete records. In
the one case, that of Bongani Elliot Mnguni, the same note was made
as in the case of the present appellant. I shall refer to
Mnguni’s
case again. The note in both instances reads as follows:
‘
FEEDBACK
RECEIVED FROM HELPDESK. “Kindly note we still busy with your
other case retrievals as we dealing with high numbers
of cases from
different provinces, your patience will be highly appreciated,”’
It
is apparent that a serious problem is not only experienced in the
Regional Court sitting in Heilbron, the neighbouring towns
Frankfort
and Villiers, but throughout the country.
[8]
In
Mnguni
v S
[1]
my colleague Reinders and I dealt with the appeal of Mr Mnguni.
Judgment was delivered in that matter on 29 November 2021. In that
case we were able to adjudicate the appeal on the merits
notwithstanding an incomplete record which distinguishes that matter
from this case. As in this case, Ms Esterhuizen also deposed to an
affidavit in that case to explain the problems experienced in
Heilbron.
[9]
In
S
v Nkhahle
[2]
my colleague Loubser and I were also confronted with an incomplete
appeal record due to mechanical recording of proceedings being
defective. In that case a reconstruction of the record was impossible
due to a lack of notes being kept by all relevant parties
to the
criminal trial. I wish to reiterate what I said then:
[3]
‘
[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.’
I
continued as follows:
[4]
‘
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.’
Also,
in
S
v Sekoto
[5]
a
conviction and sentence were set aside due to an incomplete record.
[10]
I
am not the only judge in this country that experiences these kind of
problems. The Constitutional Court has held as long ago as
2016 in
S
v Schoombee and Another
[6]
‘that the loss of trial court records is a widespread problem’.
Something has to be done sooner than later.
[11]
I
made certain suggestions pertaining to record-keeping and custody of
records in
Nkhahle
[7]
which I do not intend to repeat. It is time that everyone
concerned in the judicial system should take cognisance of this
serious problem and follow the suggestions in
Nkhahle
.
[12]
Mr
Strauss, who appeared on behalf of the State, conceded that the
appellant’s appeal against his convictions and sentences
should
succeed in the circumstances. This court has no other option than to
issue such an order. The record is not only inadequate
for a proper
consideration of the appeal, but there is no record at all. In
S
v Chabedi
[8]
the Supreme Court of Appeal confirmed the well-known principle that
the record of proceedings in the trial court is of cardinal
importance insofar as it forms the whole basis of the rehearing by
the court of appeal.
[13]
I again raise my concern about granting
applications for condonation as of right to convicted criminals.
Section 309B(1)(b) of the
Criminal Procedure Act 51 of 1977 (CPA),
dealing with appeals from the lower courts, stipulates that a
convicted person shall apply
for leave to appeal within 14 days after
passing of sentence or within such extended period the court may
allow on good cause shown.
In this case the appellant was convicted
and sentenced on 4 February 2016. On his own version he only applied
in October 2017 to
Legal Aid SA for assistance with an application
for leave to appeal, to wit 20 months after finalisation of his case
in the Regional
Court. Hereafter the appellant was informed of the
problems experienced with incomplete records. If the application for
leave to
appeal was made on the same day or within the time
stipulated by the CPA, the notes of the presiding officer, the
prosecutor and
the Legal Aid attorney would still be available in
order to assist with compilation of a proper record. Also, on
assumption
that the proceedings were properly recorded, the recording
would hopefully be available as well to ensure that the record could
be transcribed.
[14]
The following order is granted:
1.
The appellant’s appeal against his
convictions and sentences is upheld.
2.
The order of the court a quo is set
aside and substituted with the following:
‘
The
accused is acquitted on both counts of robbery with aggravating
circumstances.’
J
P DAFFUE, J
I
concur
J
J MHLAMBI, J
On
behalf of the Appellant: Mrs
L Smit
Instructed
by:
Legal Aid SA
BLOEMFONTEIN
On
behalf of the Respondent:
Adv
M Strauss
Instructed
by:
Director
of Public Prosecutions
BLOEMFONTEIN
[1]
[2021]
ZAFSHC 323
(29 November 2021); Mnguni v S (A173/2020).
[2]
[2020] ZAFSHC 246
(7
December 2020)
;
2021
(1) SACR 336 (FB).
[3]
Ibid para 16.
[4]
Ibid para
17.3.
[5]
Review number: R272/2016.
[6]
[2016]
ZACC 50
;
2017 (2) SACR 1
(CC) para 38 and also paras 19 – 21.
[7]
Fn 2 above, paras
24
– 26.
[8]
[2005]
ZASCA 5
;
2005 (1) SACR 415
(SCA) para 5.