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[2014] ZAGPPHC 515
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S v Chokoe (A212/2014) [2014] ZAGPPHC 515; 2014 (2) SACR 612 (GP) (28 March 2014)
THE
HIGH COURT OF SOUTH AFRICA
NORTH
GAUTENG HIGH COURT
DATE:
28 March 2014
Magistrate:
Polokwane
Review Case no:
Dc122/12
High Court Ref
no: 1109
THE
STATE
V
NARE
BENJAMIN CHOKOE
REVIEW JUDGMENT
RAULINGA J,
[1] This matter was
referred to me on review. The gist of this special review hinges on
the destruction of case records, documents,
books, registers and
court files in a fire that engulfed the Polokwane Magistrate Court
Building on the 19 October 2012. Among
others was the court record in
the instant case which perished in the said tragic fire incident.
[2]
The Acting Court Manager of the court, under oath reports that the
Digital Court Recording System (DCRS), which electronically
captures
and stores audio court proceedings data is backed up quarterly by the
contractors, Dimension Data. That the last data
backup was done on
the 4 July 2012 and all the audio records from 4 July 2012 to 19
October 2012 perished in the fire with all
the records. The records
of proceedings in these matters cannot be reconstructed accurately.
This information is confirmed by the
presiding officer and the legal
representative for the accused in this case, in his affidavit the
presiding officer states that
he attempted to reconstruct the record
with the defence attorney, and the state prosecutor, but to no avail.
He is of the view
that the proceedings be set aside.
[3]
For purposes of an appeal or review or a continuation of the trial,
an adequate record of the proceedings for such purposes
is a
prerequisite. The absence of such a record hampers a just hearing of
the appeal or review thereby constituting a "technical
irregularity or defect in the procedure" within the meaning of
section 324 of the Criminal Procedure Act ("CPA")
1
read with section 313 thereof and renders the conviction and or
sentence liable to be set aside.
2
[4]
In casu, the proceedings were still continuing - the court had not
yet arrived at the stage of conviction and sentence, it is
clear from
the reading of sections 313 and 324 of the CPA
3
that both sections apply with reference to any conviction and
sentence of a lo wer court that are set aside on appeal or review
on
any ground referred to in that section. The only ground which is
closely relevant to the facts of this case is subsection 324(c)
4
- 'that there has been any other technicsf irregularity or defect in
the procedure'. The only thing that one can borrow from this
subsection is the phrase 'technical irregularity'.
[5]
The term 'technical' was considered in S v Moodie
5
and was described as an irregularity which justifies the setting
aside of a conviction by the court of appeal (in our case the
review
court) where it precludes a valid consideration of the merits, in
other words, if it makes it impossible for the court to
give a valid
verdict on the merits and therefore no decision on a conviction or an
acquittal - a retrial is possible under section
324 - S v Naidoo.
6
[6] The legal issue
to be answered here is whether a magistrate can apply to the high
court for a special review of a continuing
case, where some of the
records go missing because the Polokwane Magistrate Court was gutted
by fire. What can be discerned from
the affidavits is that the
difficulty in reconstructing the record is compounded by the inchoate
magistrate's and defence counsel's
notes and the relocation of the
prosecutor. In this regard, it is apposite to note the Minister of
Justice's response to parliament
after 6400 files were destroyed. He
said;
"
If
,
however
,
it
happens that a criminal case cannot be reconstructed, the magistrate
in whose court the case was presented will submit an application
for
special review to the Judge for the proceedings to be set aside and
order that the case be tried from the onset'
7
With respect,
depending on the circumstances of each case, it is not in all cases
that the proceedings may be ordered to start de
novo. It is possible
that in some of the cases, it may be ordered that the proceedings
continue before the same presiding officer,
whereas in others where
the irregularity is so serious that they per se vitiate the trial,
the court may order that the proceedings
be set aside and that the
matter may start de novo.
[7]
I have already intimated that this matter does not reside within an
appeal or review concerning a conviction or a sentence.
It concerns a
matter which was continuing before a presiding officer in order to
thereafter consider a conviction or an acquittal.
Statutorily, the
high court is empowered to issue directives for its supervisory
powers over magistrates' court both at common
law and under the
Constitution
8
.
This is well encapsulated by Cameron JA, as he then was, in
Magistrate, Stutterheim v Mashiya
9
thus:
"That
the higher courts have supervisory power over the conduct at
proceedings in the magistrate's court in both civil and
criminal
matters is beyond doubt. This includes the power to intervene in
unconcluded proceedings. This court confirmed more than
four decades
ago that the jurisdiction exists at common law.
10
It
subsists under the Constitution, which creates a hierarch a I court
structure
11
that distinguishes between superior and inferior courts by giving the
former but not the latter jurisdiction to rule on constitutionality
of legislation and presidential conduct
12
as well as inherent powers.
13
The Constitutional Court has emphasised the role of the higher courts
in ensuring 'quality control' in the magistrates' courts
and the
importance of the High Court's judicial supervision of the lower
courts in reviewing and correcting mistakes
14
.
This
entails, as Chaskalson CJ has observed, that the higher courts can
supervise the manner in which the lower courts discharge
their
functions
15
This
general formulation echoes the provisions of the CPA, which provides
that in Criminal proceedings subject to review in the
ordinary course
the High Court may
,
amongst
many ample powers, remit the case to the magistrate's court with
instructions to deal with any matter in such a manner as
it may think
fit".
16
[8]
However, before embarking on the special review process, the court
has first to attempt reconstruction of the record because
the
reconstruction procedure is part and parcel of the fair trial process
and entails the following: the accused must be informed
of the
missing portion of the record, of the need to have it reconstructed
and of his right to participate in the process, it was
further held
that once it becomes apparent that the record of the trial is lost,
the presiding officer should direct the clerk
of the court to inform
all the interested parties, being the accused or his legal
representative and the prosecutor of the fact
of the missing record
and arrange a date for the parties to re-assemble in an open court in
order to jointly undertake the proposed
reconstruction.
17
[9]
Case law abound that the reconstruction process must give effect to
the accused' right to a public trial before an ordinary
court, his
right to be present when being tried, as well as his right to
challenge and adduce evidence. However, one must be mindful
of the
fact that this right is not absolute. It may be limited depending on
the circumstances of each case. What has not become
clear is whether
accuracy is important. Looking at the scales of a criminal trial, it
is of paramount importance that the reconstruction
should not be
vague, but accentuate the constitutional right of an accused to a
fair trial. Yekiso J after reviewing some authorities
in S v
Zenzile
18
a
case in which the division had a duty in terms of section 52(3) of
the Criminal Law Amendment Act
19
to ascertain the justiciability of the proceedings in a regional
court addressed this and enunciated the law as follows pertaining
to
accuracy:
'..........
Accuracy
or the correctness of the recordparticularly in instances where the
record has to be reconstructed, and where a conviction
could lead to
an imposition of a heavy sentence, such as life imprisonment, is of
paramount importance".
This means the
accuracy matter should not be treated lightly in serious offences
because it could jeopardise the accused's trial.
[ pose tc examine
the meaning of accuracy or correctness in this case.
[10] According to
the Shorter Oxford English Dictionary
20
, 'accuracy or accurate' means exact or correct; of a thing in exact
conformity with a standard or with truth; careful exactness;
without
error or defect. Whereas 'correct' means, free from error; accurate;
in accordance with fact, truth or reason. The meaning
I adopt in the
context of this case, is that both words should be interpreted as
meaning, in accordance with fact, truth, or reason,
conformity with a
standard or with truth. It is absurd that it should be interpreted as
meaning exact, without error or defect.
These two words do not convey
mathematical accuracy or correctness. The reconstructed record will
pass constitutional muster for
as long as it does not vitiate the
presiding officer's ability to consider adequately conviction or
acquittal.
[11] Another factor
that distinguishes this case from Zenzile is that in casu one is not
dealing with an irregularity in an appeal
or review in terms of
section 324
21
. One is dealing with a part-heard matter in which the record was
destroyed by fire. It will be burdensome and onerous to refer
ail
6400 cases for review. If this is to happen, one must accept that
there will be some errors and defects which may be condoned
at the
review stage. This is exacerbated further by the fact that one is
dealing with secondary evidence.
[12]
In casu, however nothing appears to show that all the parties have
been directed to assemble for the reconstruction of the
record. There
are preliminary steps that must be undertaken to reconstruct a record
as authoritatively stated in S
v
Nortje
22
It
was stated that in cases where the record of proceedings gets lost
before being submitted to the High Court, the clerk of the
court
concerned must submit to the High Court the best secondary evidence
he can obtain of the contents of the lost record. There
is a five
point procedure to be followed as restated in the case of 5
v
Mahlehlele
23
:
(a) To obtain a
proper affidavit that the record is indeed lost;
(b) To obtain
affidavits from witnesses and, if necessary, others present at the
trial, as proof of evidence recorded;
(c) Prove in the
same way the charge, the plea and all portions of the record;
(d) Submit to the
accused the record to be forwarded to see if accused has any
objections to the contents of it; and supply proof
on affidavit of
the reply of the accused;
(e) Obtain a report
from the presiding magistrate as to the correctness of the record who
will certify whether the record is correct.
In the electronic
world in which we now live, the Court Manager may be the best placed
person to depose to such an affidavit, as
it was done in the instant
case. I am however sceptical about the involvement of others present
at the trial, who may not necessarily
be witnesses or officials of
the court.
[13] The peculiarity
of this case is the extraordinary circumstance in which the record
was lost. There are incomplete notes kept
by the defence attorney
that is available, a portion of the transcription, and a charge sheet
with a record of postponements. It
is not desirable for a court to
prescribe a uniform course of conduct in matters involving missing
records since circumstances
of each case vary. Exercising its powers
in terms of section 304(3), the Court may in certain circumstances
direct a question of
law or fact to be argued by the Director of
Public Prosecutions and by the Counsel as the Court may appoint.
[14]
Remittal on review should only be adopted once the magistrate has
taken ail necessary steps to reconstruct the record as stated
in S v
Gora.
24
These include the following attributes: the parties are to express
their views on record that each aspect of the reconstruction
accords
with their recollection of the evidence tendered at trial, and
ultimately to have such reconstruction transcribed in a
normal way.
Once this process has been followed, none of the parties can cry foul
that his/her rights have been trampled on.
25
[15]
Another factor that must be considered in the reconstruction of the
record is the lapse of time relatively speaking to the
memories of
the judicial officer and officers of the court. In the case of S
v
Rokgoale
26
the
trial was part-heard when both the magistrate's notes and the
recording of the proceedings were lost. The magistrate then sent
the
matter on special review with the suggestion that an order be made
that the proceedings be started de novo. The accused was
appraised of
the developments and had no objection to the matter starting de novo.
The court held the magistrate must have some
memory of the facts and
the prosecutor may have notes and the statements contained in the
police docket should be of assistance
including the memory of the
above parties, whether there were any deviations from the statements.
The court refused the application
for the matter to start
de
novo.
[16]
A more enlightening approach to the issue of missing records in
partly heard cases is canvassed in S
v
Mlotshwo
27
.T
here
it was stated that:
(a) Where the record
of a part -heard criminal case gets lost, there is no reason to
declare the part heard trial to be a nullity
as the trial was, up to
the stage it had reached, a proper, valid trial;
(b)
In such circumstances the magistrate or clerk of the court must
prepare afresh a
record
of
the disposed parts of the trial, in a fair and reliable way.
(c) Once the record
is reconstructed, the magistrate is obliged to recall witnesses to
put the restored evidence to them and to
enquire whether they agree
that it accords with the evidence they initially gave at the trial.
The accused should thereafter be
afforded the opportunity to
cross-examine each witness in regard to their answers to the
magistrate's questions, the correctness
of the record and the content
of their eviaence against the accused.
[17]
This process does not amount to a trial
de
novo.
It
overlaps with the part heard trial verification of the contents of
the record. In the premise of the loss during a trial of the
whole or
part of the record, as in casu, that would not affect the validity,
regularity or fairness of the trial, nor would it
constitute a ground
for setting aside the proceedings.
28
However, it has been noted that the presiding magistrate is precluded
from directing or supervising any reconstruction procedure
before
verdict. He is required to decide the case strictly on the admissible
evidence before him and therefore cannot during the
trial participate
in an investigation of possible sources of secondary evidence whereby
he will of necessity acquire information,
which by definition is not
evidence pertaining to issues in the trial. It has been said that the
role of the presiding magistrate
in a reconstruction before verdict,
would be confined to input from his notes and recollection and
another magistrate should be
requested to direct or supervise the
reconstruction procedure. In my opinion, this procedure is untenable.
It seems to me that
instead of resolving the matter expeditiously, it
may instead prolong the proceedings further, more so because two
presiding officers
are involved.
[18]
Since it seems there is no unanimity as to what happens under the
unfortunate circumstances of lost records, I would like to
refer to
the authoritive case of
S
v Catsoulis
29
to
conclude this matter. The court held where the record has been lost
prior to the closing of its case by the state, the position
is as
follows:
(i) The magistrate's
court itself is entitled to order that the case should commence de
novo;
(ii)
The same magistrate, who heard the case in part, should preside at
the proceedings
de
novo.
This
will enable him to determine whether the evidence corresponds to that
given previously - S
v
Dhlomo;
30
(iii)
Because the case is part-heard, the
a
ccuse
d and witnesses are compelled to attend;
(tv) The accused
should piead again. This cannot possibly prejudice him.
[19]
Generally, once an accused has pleaded he is entitled to have his
case heard and finalised. In casu the accused had already
pleaded to
the charge although, the case has since turned to be a
trial-within-a-trial. The proceedings in court remain valid,
despite
the disappearance of the record. The trial should obviously proceed
from where it was left off. There is no legal ground
upon which a
re-trial at this stage can be ordered either by the trial court or by
the superior Court. It is noted from the case
law that there is a
difference between the trial of an accused and the administrative
tasks in connection therewith, for instance,
the recording of
evidence. More weight of a trial
de
novo
is
given when the magistrate who started the case is not available to
continue with the trial and the first proceedings could be
considered
void. In this case the magistrate is available even in the instance
where he could have been transferred to another
station. He should
return for the purposes of hearing this matter because it is
part-heard. All this must be done in the interest
of justice, which
may prevail over the individual rights of the accused.
[20]
In conclusion, the court should try its level best to reconstruct the
record. This reconstructed record from the best available
secondary
evidence must then be placed before all parties for scrutiny. For
partly heard matters, the trial court is not
functus
officio.
Where
secondary evidence cannot be obtained owing to the failure of the
mechanically recorded evidence, all the witnesses may be
recalled to
give evidence once again. Thereafter the trial must continue in the
normal way.
[21] The order we
make is the following:
(a) The processes
involving the reconstruction of the record must be completed first.
(b) Once the record
has been reconstructed and the parties agree on its correctness or
accuracy, then the matter must be proceeded
with.
(c)In
the event that the parties do not agree on its correctness the matter
must be tried
de
novo
-only
if the disagreement is substantial and relevant to the disputes.
(d)
If the disagreement is trivial, the magistrate should record his
version of saying so, in order for a review or appeal court
to
consider whether or not a trial
de
novo
should
be ordered.
T J RAULINGA
JUDGE OF THE
NORTH GAUTENG HIGH COURT
I agree
C PRETORIUS
JUDGE OF THE
NORTH GAUTENG HIGH COURT
IN
THE ORDINARY COURSE OF EVENTS
1
S1
of 1977
2
As
regards appeals S v Marais 1966(2) SA 514(T) 516 H; S v Joubert
1991{1) SA 119(A) 126F -J; S v Whitney & Another 1975 (3)
SA
453(N) 456F -G; S v Qualu 1989 (2) SA 581(ECD) 583 F-G, 584 AB.
3
Supra
1
4
Supra 3
5
1962
(1) SA 587 (A)
6
1962(4)
SA 348(A)
7
21
November 2012
8
Constitution
of the Republic of South Africa Act 108 of 1996
9
2004{5) SA 209 (SCA) para [13] at 214 F-215 C.
10
Walhaus & others v Additional Magistrate, Johannesburg & Another
1959(3) 113(A) 119-120
11
Section
116 of the Constitution
12
Section
167 -170
13
Section
173
14
S
v Steyn 2001 (1) SA 1146 (CC) para [17][19] Madlanga AJ
15
Van
Rooyen & Others v State & Others 2002(5)SA 246
(CC) para l9
16
Section
303 of the CPA
17
Kruger
AJ in S v Gora & Another 2010(1) SACR 159 CWCC
18
Supra
17 para[17]
19
Act
105 of 1997
20
Sixth
Edition
21
Supra
1
22
1950(4)SA
725 (E)
23
[2013]
JOL 299 74 (ECP)
24
Supra
17
25
Yekiso i in S v Zengile para[21]
26
2001(2)SACR 317(T)
27
[2006]
JOL 15630 (w) para [3]
28
Supra
27 para [36]
29
1974(4 )SA3 71 (T)
30
1969(1)
SA104 (N) at 107