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[2021] ZAGPPHC 706
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Moyeng v S (A264/17) [2021] ZAGPPHC 706; 2021 (2) SACR 538 (GP) (13 May 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER: A264/17
DATE:
13 May 2021
ELLIAS
HLABANE
MOYENG
Appellant
V
THE
STATE
Respondent
JUDGMENT
MABUSE
J
(Raikane
AJ concurring)
[1]
This matter came before us as an appeal against both conviction and
sentence. The Appellant, Mr
Ellias Hlabane Moyeng, and not
Moeng, approached this court without having been granted any leave to
appeal either on petition
by Judges of this Court or by the presiding
officer in the Court
a quo
.
[2]
According to the affidavit of Ms Elsje Mari Theron (“Ms
Theron”), the Regional Court Magistrate
stationed at
Thulamahasha Magistrate’s Offices, the Appellant was convicted
and sentenced by the Regional Court Magistrate,
Mr Mathebula, since
deceased, on 8 November 2008. The Appellant had been found
guilty of six counts of rape involving under
aged children.
Upon conviction he was sentenced to life imprisonment. It is
not known whether it was life imprisonment
in respect of each such
conviction or in respect of the whole six convictions. If he
wanted to appeal against both convictions
and sentences, the
Appellant had fourteen (14) days from the date of the sentences to
lodge his leave to appeal. The Appellant
did not do so, hence
his application for condonation and application for leave to appeal
on 24 October 2016, approximately eight
years after his convictions
and sentences by the said Regional Court Magistrate.
[3]
In his founding affidavit, dated 6 March 2016, he claims that he
noted his application for leave to
appeal within the prescribed
fourteen (14) days. He claims furthermore that the said
application for leave to appeal was
not entertained by the said
Regional Court Magistrate until he passed away. The Appellant
has not furnished the date on which
he lodged his application for
leave to appeal. This he could have verified from his
application for leave to appeal.
Secondly, he has not attached
a copy of his application for leave to appeal which he lodged within
fourteen days. He does
not even explain what happened to his
own copy of the application for leave to appeal. In the
circumstances, it is difficult
for this Appeal Court to accept that
the Appellant’s version that he lodged his appeal within
fourteen days.
[4]
Having been arraigned on very serious offences, one would expect that
he was represented at that trial.
In the circumstances he could
have referred to his legal representative in the court
a quo
.
He has failed to do likewise. His failure to refer to his
legal representative leads one to conclude otherwise
about whether or
not he had lodged his application for leave to appeal on time.
Furthermore, no such copy was attached to
the affidavit dated 6 March
2016.
[5]
For inexplicable reasons, the late Mr Mathebula did not deal with the
Appellant’s application
for leave to appeal. Certainly he
must have been alive at the time the Appellant lodged his application
for leave to appeal
if the Appellant’s word is anything to go
by. There is no indication whatsoever of his date of death, nor
is there,
in particular, any affidavit that he died within fourteen
days of sentencing of the Appellant.
[6]
What is of paramount importance though, is that the Appellant has not
been granted any leave to approach
this Court on appeal. This
is unusual. Even more importantly is the fact that the record
of the trial court, including
the Regional Court Magistrate’s
particulars, are not available. It is not available because
according to Ms Theron:
“
The
Clerk of the Court, Ms NP Khoza
informed
me that the Court Manager, Mr TP Tjiane destroyed court books and
charge sheets a few years ago.
It
was reported to Ms T du Preez, the Head of the Office, who in turn
reported it to the Regional Court in Mbombela.”
It is not known what the Regional Court in Mbombela did with
the matter.
[7]
Certainly Mr TP Tjiane had no right to destroy court records.
According to Mr TA du Plessis, the
Senior Magistrate at Mahala:
“
[8]
Several allegations have been made by different staff members about
the “destruction” of court records
and court books.
[9]
If these allegations are to be true it will result in a serious
miscarriage of justice and the possible
release of very dangerous
criminals. As a result, the administration of justice will be
defeated.”
It
would appear that there is more in the destruction of the court
records and court books than meets the eye. There seems
to be
reasonable grounds to suspect foul play. It would appear that
good grounds existed for the thorough investigations
of the
destructions of the court records and court books. Ms du
Plessis, states that according to Amendment Notice 21 of
2016, court
books must be archived (and not destroyed) after ten years. It
is not known when Mr Tjiane destroyed the court
records and court
books. If it was after 2016, whether he knew about the Amended
Notice 21 of 2016 or whether he had any
authority to destroy the
Regional Court Books as a Court Manager, it would appear that he
exceeded his mandate.
[8]
Furthermore, according to Ms du Preez:
“
All
life sentences imposed by Regional Court must be achieved (sic)
(should be archived) after twenty years and in other matter
the cases
may only be destroyed after the expiration of imposed prison term.”
Then
what precisely informed the Court Manager to destroy the court
records and court books? We are now informed that his
conduct
of destroying court records and court books has led to a flurry of
appeals. In a letter dated 2 February 2016, Ms
du Plessis wrote
to the Area Court Manager, Mr Thabethe and stated,
inter alia
,
that:
“
It
has come to my attention that there are several appeal matters from
the Regional Court where the charge sheet cannot be traced.”
She
listed five such matters in the said letter.
[9]
In the meantime, the said Benjamin Moifo Tjiane, the Court Manager,
has made an affidavit dated 24 April
2017. In the said
affidavit, he states that:
“
A
diligent search was made in both the record room and store room but
all in vain.”
He
knew that he had destroyed the court records or court books but
notwithstanding the said knowledge he made “
a
diligent search”
.
He has failed to admit in his evidence that the court records
and books were destroyed and are not to be found because he
had
destroyed them. He pretended as if ordinarily the records had
disappeared. His affidavit is, for administrative
purposes, not
enough. His conduct, in our view, ought to be investigated.
We found it strange that the authorities
in Mpumalanga simply adopted
a lackadaisical attitude towards the conduct of the Court Manager and
did nothing.
[10]
Now here we are. We cannot properly deal with this matter
simply because the court records and court books
have been
destroyed. In the premises, we will not be able to establish
whether the convictions and sentences were proper.
[11]
In her heads of argument, Ms L Augustyn, counsel for the Appellant,
pointed out that the Court Manager (the one
who destroyed the court
records and books), the prosecutor, the clerk of the criminal court
and a senior magistrate made sworn
statements to the effect that
despite diligent search, the records could not be found or
reconstructed and that the presiding officer
has since passed away.
[12]
In terms of rule 65 of the Magistrates Court Rules, “
the
clerk of the court shall keep a book to be styled “the criminal
record book” in which he or she shall daily enter
particulars
of every criminal case coming before court on that day.”
Although the duty to do so falls on the clerk of the court, in
practice it is the interpreter who makes those entries. See
rule 66 of the Magistrates Court Rules which deals with the records
of criminal cases. It provides that:
“
The
plea and explanation or statement, if any, of the deceased, the
evidence orally given, any exception or objection taken in the
cause
of the proceedings, the rulings and judgments of the Court and any
other portion of the proceedings may be noted in shorthand
hereinafter (also in this rule referred to as “shorthand
notes”) or either verbatim or in narrative form or recorded
by
mechanical means.”
This
section emphasises the duty of the Court to keep and preserve
criminal court records.
[13]
The Magistrate makes notes of the proceedings in his bench book.
It is this bench book that the Court Manager
destroyed. Strange
enough, they were unable to retrieve a transcript from the
transcribers. Hence the absence of the
record.
[14]
We were referred by Ms Augustyn to the judgment of
Schoonbee and
Another
2017 (2) SACR 1
CC, p 13
where, at paragraph [38] the
Court had the following to say:
“
A
loss of trial court records is a wide-spread 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 interest
of the criminal accused
as well as their victims.”
It
is submitted by Ms Augustyn that the State is a keeper of records and
is in control of the transcript and reconstruction of records.
Accordingly, the State’s failure to produce a record of the
proceedings prejudices an accused person in that it infringes
upon
his rights to a fair trial as envisaged by the provisions of s
35(3)(o) of the Constitution. The said section provides
as
follows:
“
Every
accused person has a right to a fair trial, which includes the right
(o) of appeal to, review by, a higher Court.”
[15]
She also referred us to the judgment of
S v Gora and Another
2010
(1) SACR 159
(WCC) para [8] – [11]
where it was held by
Kruger AJ that:
“
[8]
In terms of
s 76(3)(a)
of the
Criminal Procedure Act 51 of 1977
the
Trial Court “shall keep a record of the proceedings, whether in
writing or mechanical, or shall cause such record to
be kept
[9]
Unfortunately, the record of the proceedings went missing, even for
the applications for leave to appeal
were heard.
[10]
In terms of s 35(3)(o) of the Constitution of the Republic of South
Africa 1996, the right of an accused person
to a fair trial includes
the right of appeal to a higher Court.”
[16]
According to Ms Augustyn, where the record is inadequate or is
totally unavailable, this situation will normally
lead to the whole
conviction and sentence being set aside. She submitted that in
the absence of the whole record, and in
the face of impossibility to
reconstruct the record, which is akin to the unavailability of the
record in any case, the Appellant’s
conviction and sentence
should be set aside. She proffered the following reasons for
her submission:
The
record of the proceedings in the trial court is of cardinal
importance. That record forms the whole basis of the rehearing
by the court of appeal. Where the record is inadequate or
totally absent, as in this matter, for a proper consideration of
appeal, it will normally lead to the conviction being set aside.
It is further submitted on behalf of the Appellant that
postponing
this matter for a further attempt to reconstruct the record, would
cause an intolerable injustice to the Appellant.
[17]
Her submissions enjoy the support of Adv GJC Maritz, the Respondent’s
counsel. In his heads of argument,
Mr Maritz observed, quite
correctly so in our view, that from the affidavits provided by the
Clerk of the Court, it is clear that
there are no prospects of
finding or reconstructing the missing records. In conclusion,
he supported the submission made
by Ms Augustyn that the entire trial
proceedings should, for the aforegoing reasons, be set aside.
In this regard, he relies
on
S v Joubert,
[1990] ZASCA 113
;
1991 (1) SA 119
A at 126
and
S v Marais
1966 (2) SA 541
T at 516 G-H
where the Court
had the following to say:
“
The
Appellant has been seriously frustrated and prejudiced owing to a
fault on the part of the State servants. She is entitled
to an
appeal as of right. She is entitled to receive a copy certified
as correct. This cannot be achieved. She
has been
frustrated in a basic right. She has been deprived of this
through no fault of her own. In all these circumstances,
the
only thing to do is to exercise the powers granted in s 98 of Act 32
of 1944, as amended, and to set the whole of the proceedings
aside.”
The
judgment proceeded at 517A in the following manner:
“
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.”
[18]
In conclusion, Mr Maritz referred to s 324 of the Criminal Procedure
Act 51 of 1977 (“the CPA”) and
stated that the
institution of the proceedings de novo is possible because a valid
consideration of the merits could not take place.
In my view, s
324 of the CPA does not apply in the circumstances of this case.
The said section provides as follows:
“
Whenever
a conviction and sentence are set aside by the Court of Appeal on the
grounds –
(a)
that the court which convicted the accused was not competent to do
so; or
(b)
that the indictment on which the accused was convicted was invalid or
defective in any respect; or
(c)
that there has been any other technical irregularity or defect in the
procedure, proceedings in the respect
of the same offence to which
the conviction and sentence referred, may again be instituted either
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 the proceedings.”
I
have already pointed out that the provisions of this section do not
apply to the present circumstances. Furthermore, if
the
proceedings were to start
de novo
, the accused may
successfully plead
autrefois convict
.
[19]
Finally, no further order for reconstruction of the record should be
made, because, in our view, any such attempt
is unlikely to succeed.
This was a similar case in the matter of S v Marais
supra
,
where a lost record with no prospects of being reconstructed was the
subject. In the result we make the following order:
The
convictions of the Appellant in the Regional Court, together with the
sentences imposed on him, are hereby set aside.
PM
MABUSE
JUDGE
OF THE HIGH COURT
_
TV RAIKANE
ACTING JUDGE
OF THE HIGH COURT
Appearances
:
Counsel
for the Appellant:
Adv L Augustyn
Instructed
by:
Legal-Aid South Africa
Counsel
for the Respondent:
Adv GJC Maritz
Instructed
by:
Director of Public Prosecutions
Date
heard:
22 April 2021
Date
of judgment:
13 May 2021