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
>>
2018
>>
[2018] ZAFSHC 129
|
|
Mompati v S (A86/2018) [2018] ZAFSHC 129 (30 July 2018)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
number: A86/2018
In
the Appeal between:
MA
MOMPATI
Appellant
and
THE
STATE
Respondent
CORAM:
REINDERS J
et
OPPERMAN, J
HEARD
ON:
30
JULY 2018
JUDGEMENT
BY:
OPPERMAN,
J
ORDER:
30 JULY 2018
Criminal
procedure
- appeal - record of trial proceedings - record incomplete
[1]
The appellant
lodged
an appeal in terms of section 309(1)(a)
[1]
of the Criminal Procedure Act 51 of 1977 (CPA) against conviction and
sentence. He was sentenced to imprisonment for life by a
regional
court under section 51(1) of the Criminal Law Amendment
Act, Act No. 105 of 1997 and accordingly noted
the appeal
without leave in terms of section 309B of the CPA.
[2]
The matter was removed from the roll. The sole cause for the
termination of the matter in this manner; the incompleteness of
the
record, demands mention and judgment.
[3]
On 1 September 2017 the appellant, a 30-year-old man, was convicted
of rape in contravention of section
3
of the Criminal Law (Sexual Offences and Related Matters) Amendment
Act, Act 32 of 2007.
On
the same day, as mentioned above, he was sentenced to imprisonment
for life.
[4]
The factual charge against the appellant, of which he was convicted
and that is the source of the appeal, is grave. He allegedly
committed an act of sexual penetration with the complainant RJ
(10
years old) by penetrating her anally and vaginally and thus raped
her.
[5]
Before the matter could proceed we were confronted with the
incompleteness of the transcribed record of proceedings. The operator
indicated in the introduction to the transcribed record that:
“
4.
On JAVS system only 2 channels working and voices only picked up on
1, prosecutor only one clearly audible.
5. CD 1, 2, 3 – a
lot of background static audible, audio really bad.
6. CD
1- Audio at some places seem to be missing.”
[6]
As result, amongst others; the plea explanation is not known to this
court.
“
PROSECUTOR
PUTS CHARGES TO THE ACCUSED
CHARGE
1:
Rape
COURT:
Sir do you understand the charged preferred against you?
ACCUSED
:
Yes your worship.
COURT
:
Do you plead guilty or not guilty?
ACCUSED
PLEAD GUILTY TO CHARGE
ACCUSED:
I plead guilty your worship.
COURT:
Thank
you sir
MR
RWAXA
:
[Inaudible] Your Worship I do not understand because he says he did
not hear well Your Worship or understand I do not know well
Your
Worship.
COURT:
[Inaudible]
that the interpreter is too far from you at this point in time. I
will ask her to raise her voice, do you want to plead
guilty or not
guilty?
ACCUSED PLEAD NOT
GUILTY TO CHARGE
COURT
:
[Inaudible}
MR
RWAXA
:
[Inaudible] that the accused is pleading [Inaudible] about the
offence Your Worship. (
Accentuation
added)
COURT:
Thank
you lady.”
[7]
The rest of the record, specifically the judgement of the court
a
quo
,
presents with references to “inaudible” and at moments
that might be of relevance and importance to the adjudicator
of the
matter on appeal.
[8]
The flaw of an incomplete record might not be fatal. The premise is
whether an appeal can be adjudicated fairly. In
Phakane
v
S
2018
(4) BCLR 438
(CC) the test was reiterated in that
:
“
[20]
An issue that arose in the appeal was whether, in the absence of the
missing evidence, the Full Court could determine the appeal
fairly.
If it could not do so, this would mean that the applicant's right to
a fair appeal entrenched in
section
35(3)
of the Constitution had been infringed.
Section
35(3)
reads:
"Every accused
person has a right to a fair trial, which includes the right -
(o) of appeal to, or
review by, a higher court."
If the
Full Court could determine the appeal fairly, the applicant's right
to a fair appeal would not have been infringed.”
[9]
The above said, it may not be expected from a court of appeal or
review to guess or suppose words or phrases on the transliterated
record if the record can be cured. The lack of diligence and
carelessness in the keeping and submission of proper records is of
concern and the impact thereof underestimated. The consequences are
often devastating to the administration of justice. On 17 December
2017 and in the matter of
Phakane
v
S
2018 (4)
BCLR 438
(CC) Cameron, J remised:
“
[47]
Our sad duty in this case is to vacate Mr Phakane's conviction of
murdering Ms Boshomane, his girlfriend, on the ground that
the trial
court record before the Full Court, which heard his appeal and
dismissed it, was materially incomplete and that his constitutional
right to an appeal was thus violated.
[59]
This hardly reduces the sadness of this case. Even if we were to
convict Mr Phakane of assault, any sentence we imposed for
it would
be far less than he has already served on the murder conviction,
which we must now set aside. His time already served
in prison means
that he must be released anyway. A competent conviction of assault
would make no practical difference to Mr Phakane.
And it would bring
no justice to his victim, Ms Boshomane, nor to her mother and her
loved ones.”
[10]
It starts with the recording of the evidence up and until the
submission of the record for appeal or review. Officers of the
court;
that includes stenographers, must ensure that equipment is fully
functional and that recordings are effective at all times
during the
proceedings. Statements by the typist that only one microphone was
functioning, that: “audio really bad”
and “audio at
some places seem to be missing” may not be the norm. The
administration of justice as prescribed in the
Constitution of the
Republic of South Africa, 1998 deserves more reverence.
[11]
An appeal is typically judged within the four corners of the record.
The following are general principles in law in this regard:
11.1 The new section
309B(4)(a)
[2]
provides that
the clerk of the court must arrange for the transcription of the
record.
11.2 The preparation of
the record is the duty of the clerk of the court in terms of
Magistrates’ Courts Rule 67(10)
[3]
.
Rule 66(4)(c)
[4]
provides that
the original copy of the transcript shall be certified as correct by
the person making such a copy. That person is
usually the
transcribing typist.
11.3 “Correct”
implies complete. If there is not a certification that the record as
a whole is correct the clerk of
the court must place the matter
before the magistrate with a request to construct it appropriately.
11.4 In
S v
Three
1997 (2) SACR 534 (EC) it was
held, and I support the directive, that the proper administration of
justice was
frustrated by sending an incomplete record to a higher
court. In the case of incomplete records, the magistrate should
attempt
to reconstruct it before the matter is sent on review. If
this was not possible the magistrate should mention this fact when
the
matter was sent on review, together with reasons for the failure
to reconstruct same.
11.5 Uniform Rule
51(3)
[5]
states that the
ultimate responsibility for ensuring that all copies of the record on
appeal are in all respects properly before
the court shall rest on
the appellant or his attorney. This applies even when the attorney
acts
pro
deo.
[6]
[12]
In conclusion the court ordered on 30 July 2018 that the matter be
removed from the roll in order for the record to be properly
completed.
[13]
The Registrar of this Court must bring the judgement to the attention
of the President of the Regional Court: Free State, the
Chief
Magistrates Bloemfontein and Welkom as well as the Regional Head,
Regional Office: Department of Justice and Correctional
Services,
Free State, Bloemfontein.
_________________
M.
OPPERMAN, J
I
concur.
_______________
C.
REINDERS, J
On
behalf of the appellant: Adv. S. Kruger
Instructed
by:
Legal
Aid
BLOEMFONTEIN
On
behalf of the respondent: Adv. R. Hoffman
Instructed
by:
The
Director: Public Prosecutions
BLOEMFONTEIN
[1]
Section 309(1)(
a
):
Subject
to section 84 of the Child Justice Act, 2008 (Act No. 75
of 2008), any person convicted of any offence
by any lower court
(including a person discharged after conviction) may, subject to
leave to appeal being granted in terms of section
309B or 309C,
appeal against such conviction and against any resultant sentence or
order to the High Court having jurisdiction:
Provided
that if that person was sentenced to imprisonment for life by a
regional court under section 51 (1) of
the Criminal
Law Amendment Act, 1997 (Act No. 105 of 1997), he or she may
note such an appeal without having to apply for
leave in terms
of section 309B:
Provided further that the provisions of section
302 (1) (
b
) shall
apply in respect of a person who duly notes an appeal against a
conviction, sentence or order as contemplated in section
302 (1) (
a
).
(Accentuation added)
[2]
309B
(4) (
a
)
If an application for leave to appeal under subsection (1) is
granted, the clerk of the court must, in accordance with the rules
of the court, transmit copies of the record and of all relevant
documents to the registrar of the High Court concerned: Provided
that instead of the whole record, with the consent of the accused
and the Director of Public Prosecutions, copies (one of which
must
be certified) may be transmitted of such parts of the record as may
be agreed upon by the Director of Public Prosecutions
and the
accused to be sufficient, in which event the High Court concerned
may nevertheless call for the production of the whole
record.
[3]
Rule 67
(10):
Upon an appeal being noted as
provided in sub-rule (9) the registrar or clerk of the court shall
prepare a copy of the record
of the case, including a transcript
thereof if it was recorded in accordance with the provisions of rule
66(1), and then place
the record before the judicial officer who
shall within 15 days thereafter furnish to the registrar or clerk of
the court a statement
in writing of his or her reasons for
dismissing the summons or charge.
[4]
Rule 66(4)(c):
The
original copy of the transcript of any shorthand notes referred to
in paragraph (
a
), shall be certified as correct by the person
making such copy and shall be filed with the record of the case.
[5]
Uniform Rule 51(3):
The
ultimate responsibility for ensuring that all copies of the record
on appeal are in all respects properly before the court
shall rest
on the appellant or his or her legal representative: Provided that
where the appellant is not represented by a legal
representative,
such responsibility shall rest on the director of public
prosecutions.
[6]
S v Ngxitho 1979 (1) SA 1037 (NC).