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[2019] ZAFSHC 212
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S v Okafor and Others (R155/2019, 1121/15) [2019] ZAFSHC 212 (17 October 2019)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Review No:
R155/2019
Magistrates Court Case
No: 1121/15
In
the review between:
THE
STATE
versus
KINGSLEY
OKAFOR
Accused 1
CAMELIUS
CHIKA AMAECHI
Accused 2
THOMPSON
THUNDE
Accused 3
CORAM:
NAIDOO J
et
RAMLAL,
AJ
JUDGMENT:
NAIDOO, J
DELIVERED
ON
:
17
OCTOBER 2019
REVIEW JUDGMENT
[1]
The Magistrates Court referred this matter to us to review and order
that the trial commence
de novo
. It is not a review in terms
of sections 302, 304 or 306 of the Criminal Procedure Act 51 of 1977
(CPA). This matter is partly
heard in the Magistrates Court,
Harrismith. There are three accused in this matter who are charged,
in the Harrismith Magistrates
Court, with one count of fraud and 14
counts of contravening section 5(b) of the Drugs and Drug Trafficking
Act 140 of 1992 (the
Drugs Act), which relate to dealing in drugs. On
each of the counts relating to dealing in drugs, the accused were
charged in the
alternative with contravening section 4(b) of the
Drugs Act (possession of prohibited drugs). Counts 1- 4 related to
accused 1,
where count 4 was a charge of fraud, counts 5-11 related
to accused 2, and counts 12 -15 related to accused 3. Accused 1 and 3
were initially represented by a Mr SS Nkabinde and accused 2 was
represented by a Mr Gesi. At a later stage accused 1 and 3 were
represented by Mr Ngcana.
[2]
The accused in this matter were arrested as a result of a project by
the state targeting drug related
activities. Although the offences
were committed on different dates by each of the accused, the
witnesses in respect of each matter
were the same. By agreement
between the parties, all three accused were tried together, as it was
more convenient and also cost-effective
for the accused persons.
The accused pleaded not guilty to all the charges, and the trial
proceeded. After the state led
two witnesses, a trial-within-a trial
was held, but appears not to have been completed. It is alleged that
the state was about
to close its case, when Mr Nkabinde withdrew as
the attorney of record for accused 1 and 3. Mr Ngcana then placed
himself on record
as the representative of accused 1 and 3 and a
transcript of proceedings was ordered. That set the proverbial cat
amongst the pigeons,
as it was then discovered that the recording
related to the trial proceedings was lost due to a change in the
court recording system.
This resulted in a flurry of frenetic
activity as the court functionaries attempted to locate and retrieve
the record.
[3]
After many attempts to retrieve the record were unsuccessful, the
magistrate, prosecutor, Mr Ngcana,
and Mr Gesi set about the task of
reconstructing the record. This was achieved to a large extent,
including the evidence led in
the trial-within-a-trial. Mr Ngcana was
clearly at a disadvantage as he was not involved in the proceedings
prior to his placing
himself on record, and appeared to rely on the
magistrate, the prosecutor and Mr Gesi, who were involved from the
outset. Mr Ngcana
however raised certain issues arising from what Mr
Nkabinde, the previous attorney for accused 1 and 3, had allegedly
said. These
issues were not clearly identified or specified in the
record, but seemed to arise from what accused 1 and 3 instructed him.
It
is common cause that the accused, all foreigners and speaking in
their respective languages, were not taking notes during the trial.
Mr Ngcana advised the court that they relied purely on memory in
raising those issues.
[4] The
magistrate heard further submissions from the prosecution and the
defence. Mr Gesi and the prosecutor
were of the view that the
reconstruction of the record was adequate and sufficient for the
trial to continue. They also expressed
the view that setting aside
the proceedings and ordering the matter to proceed
de
novo
will be prejudicial to the state and accused 2, and urged the court
to continue with the trial. Mr Ngcana, was of the view that
the
omission of Mr Nkabinde’s submissions from the reconstructed
record caused serious prejudice to accused 1 and 3, as they
were not
able to instruct him properly and he was not able to give them
“instructions”. I suspect that he meant that
he was not
able to advise them properly. He submitted that the matter should be
sent on review for the proceedings to be set aside
and for the matter
to proceed
de
novo
.
The magistrate ultimately ruled that if the matter is not reviewed,
serious prejudice would be occasioned to accused 1 and 3,
and that
they would be deprived of the right to a fair trial. The magistrate
requested that the proceedings be reviewed and set
aside, and that
the court should order the matter to proceed
de
novo
.
[5]
It is now a trite Constitutional imperative that courts must ensure
that proceedings, including a trial,
must be fair to all parties
involved and must be finalised speedily and expeditiously. As I
alluded to earlier, the record was
reconstructed with all parties
agreeing to the substantial accuracy and correctness thereof. The
dispute arises in respect of certain
submissions, allegedly made by
Mr Nkabinde, the previous attorney of accused 1 and 3, regarding
certain documents which were the
subject matter of the
trial-within-a–trial. The magistrate, the prosecutor and Mr
Gesi have no notes in this regard, nor
are they able to remember the
submissions in question.
[6]
The issue of whether in a case, such as the present one, a court may
set aside the proceedings and order
the matter to commence
de
novo
was considered in a number of matters. A distinction must be drawn
between the situation where the matter was finalised and the
accused
was convicted and sentenced on the one hand, and that where the
proceedings have not been finalised. In the former, the
convictions
and sentences were set aside on the ground of procedural
irregularities during the trial. Pertinent to this matter
are cases
where the proceedings were still partly heard in the Lower Courts and
were sent on review to the High Court, due to missing
records. About
forty five years ago, in the matter of
S
v Catsoulis 1974(4) SA 371 (T)
,
some guidance was provided in respect of how a court should proceed
where the record was lost in a matter that was partly heard.
The
headnote succinctly summarises the court’s remarks as follows:
“
Where
the record of a part-heard criminal trial in a magistrate's
court is lost there is no legal ground upon which a re-trial
at this
stage can be ordered either by the trial court or by the Supreme
Court. In such a case the position is as follows: that
the trial was,
up to the stage that it had reached, a proper, valid trial and there
is neither reason nor jurisdiction to declare
the part-heard trial to
be a nullity; that it is the administrative task of the magistrate
and/or the clerk of the court to compile
afresh a record of the
completed part of the trial in any manner which is fair and as
reliable as possible; that this embraces
an administrative enquiry
and action and has nothing to do with the trial as such; that at the
resumption of the trial, after the
record has been restored as well
as possible, the magistrate is in terms of section 210 of the
Criminal Procedure Act, 56 of 1955,
entitled to recall any witness to
give evidence, to lay his reconstructed evidence before him and to
ask whether it tallies with
the evidence which he originally gave at
the trial. The witness will then be subject to cross-examination by
the defence on his
answers to the magistrate's questions on the
correctness of the record and on the contents of his evidence against
the accused.
Thereafter the trial can take its normal course.”
[7]
Some
eleven years later, and at a time when the current CPA had come into
operation, the court in
S
v Matthys 1985(1) SA 209 (C)
,
reiterated the findings of the court in Catsoulis. In the matter of
S
v Mlotswa [220] JOL 15630 (W),
the court undertook a detailed analysis of the numerous cases dealing
with the issue of whether a court should set aside proceedings
and
order a re-trial of the matter, and ultimately refused the request of
the magistrate to set aside the proceedings and referred
the matter
back to the clerk of court to reconstruct the record. The court in
Mlotswa expressed similar views to that in Catsoulis
and Matthys
regarding the referral of the matter back to the Magistrates Court
for reconstruction of the record, and recalling
witnesses to confirm
the correctness of the reconstruction. [See also
S
v Rakgoale 2001(2) SACR 317 (T)
and
S
v Chokoe 2014(2) SACR 612 (GP)
]
[8]
In the present matter, the magistrate did not mention the prejudice
that would be occasioned to the
state and accused 2, nor did he
extract from Mr Ngcana full details regarding the nature of the
omission and how accused 1 and
3 would be prejudiced. In any event,
where proceedings are still pending and have not been finalised, the
trial magistrate does
not become functus officio and the duty to
ensure that a proper record of proceedings is kept and produced
remains on him. The
only dispute in this matter appears to be with
regard to what was said during the trial-within-a-trial, The
witnesses are police
officials and there is no indication that they
are not available to appear in court to verify the correctness of the
reconstructed
record in respect of the evidence they had previously
delivered. The accused would of course then be able to cross examine
these
witnesses regarding their responses to questions posed by the
magistrate.
[9]
There would then be nothing to prevent Mr Ngcana making the same
submissions regarding admissibility
of the documents forming the
subject matter of the trial-within-a –trial. In any event,
nothing prevents Mr Ngcana making
application to the court for the
recalling of the witnesses for the purposes of cross-examining them
in order to record their evidence
regarding the admissibility of the
disputed documents. In view of the fact that Mr Ngcana was not the
attorney of record when the
trial-within-a-trial started, it is
unlikely that the court would refuse such an application. It must
also be borne in mind that
the state has not closed its case, the
accused have not testified (which is their right should they so
choose) and the court has
not yet made a ruling in respect of the
trial-within-a-trial. The state may also apply to recall such
witnesses, on good grounds
shown.
[10]
In my view, the so-called dispute raised by accused 1 and 3 is not of
such substance that it cannot be cured, firstly,
by the witnesses’
verification of the correctness of the reconstructed record and,
secondly, by accused 1 and 3 making the
relevant submissions they
complain are missing. In my view, there is no reason to set aside the
proceedings in this matter. To
do so would not be fair and equitable
to all parties involved in the matter, and it would certainly not be
in the interests of
justice.
[11] In the
circumstances, the following order is made:
11.1 The
magistrate’s request for an order setting aside the proceedings
is refused;
11.2 The witnesses
may be recalled to verify the correctness of their evidence, as
reconstructed, to hear the accused on the
veracity of the
reconstructed record, if necessary, and the trial may then proceed in
the normal course.
S.
NAIDOO, J
I
agree.
A RAMLAL, AJ