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[2016] ZAGPPHC 965
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Mphosi v S (A614/2011) [2016] ZAGPPHC 965 (28 October 2016)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
DATE:28/10/16
CASE NO:
A 614/2011
NOT REPORTABLE
NOT OF INTEREST TO OTHER JUDGES
REVISED
In the matter between:
ABRAM ABATLOANE
MPHOSI
APPELLANT
AND
THE
STATE RESPONDENT
JUDGMENT
MALI
J
[
1].
The hearing of this
appeal against conviction and sentence has a lengthy history. On 8
December 2010 the appellant and his co-accused
in the Gauteng
Regional Court, held at Atterdgville were each sentenced to 10 years
imprisonment on one count of robbery with aggravating
circumstances.
[2].
On 18 January 2011, the appellant successfully applied for leave to
appeal against his conviction and sentence. The appellant
thereafter
applied for bail pending appeal which was also granted.
[3].
It is common cause that the hearing of the appeal has been postponed
at least three times, due to the incomplete record.
[4].
Despite numerous attempts to reconstruct the missing parts of the
record, on August 2014 the Presiding officer, in the trial
court
advised as follows:
"The
record was returned from the High Court with the following query;
'The cross examination of Mr Kgomosotso does not form
part of the
record as well as closing of the state's case. The record resumes on
paginated page 63 with the evidence of the first
accused.'
My
understanding of the above statement is that there is a portion of
this case which was not transcribed but instead the portion
of the
evidence in another case was included in this case.
I
am unable to obtain my notes on this case. Mr MAAGA, the prosecutor
has since passed away. Mr Somo, the defence counsel has relocated
to
Kwa-Zulu Natal. The interpreter is no longer working in my court; I
have no idea where she is at this moment. The responsible
stenographer Mr Walter Mothlaseli was assisting for that period as my
resident stenographer was off sick. It is impossible therefore
for me
to remember the missing part of the record.
However,
in my judgment, I dealt thoroughly with the evidence. There is also
the confession which in my opinion implicates the accused.
"
TJNDWANDWE
REGIONAL
MAGISTRATE: PRETORIA
LAW
[5].
It is trite that
where it is impossible to reconstruct a case record, the conviction
and sentence should be set aside. S v Joube
[1]
and S v Mcophle
[2]
.
[6].
The right to a fair
trial includes the right to a fair appeal. S v Jaipal
[3]
referred to the earlier cases on a right to a fair trial at page 227
- 228 "...in the words of Kentridge, AJ in S v Zuma and
Others
1995(1) SACR 568 (CC):
"
The
right to a fair trial conferred by [s35(3)] is broader than the list
of specific rights set out in paras (a) to (i) of the subsection
...It embraces a concept of substantive fairness which is not to be
equated with what might have passed muster in our criminal
courts
before the Constitution came into force. In
S v Rudman and
Another
:
S v Mthwana
1992(1) SA 343
(A), the Appellant Division while not decrying the importance of
fairness in criminal proceedings, held that the
function of a court
of criminal appeal in South Africa was to enquire:
'whether there
has been an irregularity or illegality, that is a departure from the
formalities, rules and principles of procedure
according to which our
law requires a criminal trial to be initiated or conducted'.
A
Court of appeal, it was said (at 377),
“
does
not enquire whether the trial was fair in accordance with "notions
of basic fairness and justice", or with the "ideas
underlying the concept of justice which are the basis of all
civilised systems of criminal administration".'
That
was an authoritative statement of the law before 27 April 1994. Since
that date, section 35(3) has required criminal trials
to be conducted
in accordance with just and those notions of basic fairness and
justice. It is now for all courts hearing criminal
trials or criminal
appeals to give content to those notions."
[7].
In S v Dzukuda and Others; S v Tshilo
[4]
.
Ackermann, J referred to the concept of a substantive fairness
mentioned in Zuma and said:
"Elements
of this comprehensive right as specified in paras (a) to (o) of ss(3)
The words "which include the right preceding
this listing
indicate that such specification is not exhaustive of what the right
to a fair trial comprises. It also does not warrant
the conclusion
that the right to a fair trial consists merely of a number of
discrete sub-rights, some of which have been specified
in the
subsection and others not. The right to a fair trial is a
comprehensive and integrated right, the content of which will
be
established, on a case by case basis as our constitutional
jurisprudence on a section 35(3) develops. It is preferable, in my
view, in order to give proper recognition to the comprehensive and
integrated nature of the right to a fair trial to refer to specified
and unspecified elements of the right to a fair trial, the specified
elements being those detailed in ss(3)."
"At
the heart of the right to a fair criminal trial and what infuses is
for justice to be done and also to be seen to be done.
But the
concept of justice itself is a broad and protean concept. In
considering what, for purposes of this case, lies at the heart
of a
fair trial in the field of criminal justice, one should bear in mind
that dignity, freedom and equality are the foundational
values of our
Constitution. An important aim of the right to a fair criminal tnal
is to ensure adequately that innocent people
are not wrongly
convicted, because of the adverse effects which a wrong conviction
has on the liberty, and dignity (and possibly
other) interests of the
accused".
[8].
In S v Zondi
[5]
it
was held as follows:
"It
is the appellant who asserts and exercises her or his right by noting
and prosecuting an appeal; ... On first principles
therefore, it is
the appellant who has the duty of placing an adequate record of the
proceedings in the court a quo before the
Court of appeal in order to
enable it to consider and decide the appeal. And, indeed, subrule 51
(3) of the Uniform Rules of this
Court provides 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.'
However
, the administrative, logistical and financial implications of
placing the primary responsibility for preparing an appeal
record on
the appellant would probably, in the majority of cases, negate her or
his constitutional right to an appeal since the
State , through its
officials, employees and/ or subcontractors, not only records all
court proceedings, but also has custody of
all relevant recordings,
notes, transcripts, statements and other documentary information , as
a/so exhibits. The provision of
Rule 67 supra which place the primary
responsibility for providing a record on appeal on the State are
therefore fair, practical
and convenient, and , as mentioned in S v
Siwaxa 1967 (3) 240 (E) at 241 in fin-242, save an appellant
unnecessary expense."
[9].
It was submitted on behalf of the appellant that the appellant's
right to fair trial as prescribed by section 35 (3) of the
Constitution has been encroached. Failure to provide an Appeal court
with a proper record of the proceedings which is the subject
of the
appeal is tantamount to encroachment of the appellant's right to fair
trial. The appellant's right should be protected by
setting aside the
conviction and sentence if the record cannot be reconstructed.
[10].
It is further submitted that the court should make a determination as
to whether the record before court is adequate for a
meaningful
hearing of the appeal. This is because the trial court relied on the
evidence of Mr Kgomosutsu, the same witness whose
cross examination
has not been mechanically recorded. This can be gleaned for paragraph
4 above.
[11].
Counsel for the respondent conceded the appellant's argument, but not
without stern reservations. Counsel submitted that the
ultimate
responsibility of 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. The Counsel's submission disregards the
administrative hindrances highlighted in ZONDI supra.
[12].
The court concludes that without the missing parts of the record it
is impossible to hear the appeal therefore the appeal
must succeed.
[13].
In the result I order as follows
13.1 The appeal against conviction and sentence succeeds.
13.2 The conviction and sentence is set aside.
I
agree
__________________
W. PIENAAR
ACTING JUDGE OF THE HIGH COURT
It is ordered
___________________
N.P MALI
JUDGE OF THE HIGH COURT
Counsel
for the Appellant: Adv H. Steynberg
Instructed
by: Legal
Aid South Africa, Pretoria
Counsel
for the Respondent: Adv J. Kotze
Instructed
by Director
of Public Prosecutions Pretoria
Date
of Hearing: 24 October 2014
Date
of Judgement 28 October 2016
[1]
1991(1) SA 119 (AD)
[2]
2007(1) SACR 34 (E)
[3]
2005(1)
SACR 215 (C)
[4]
2000(2) SACR 443 (CC) at 455 para
[9]
[5]
2003 (2) SACR 227
( W) at paragraph 11-12