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[2013] ZAGPPHC 45
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Koko v S (A 240/10) [2013] ZAGPPHC 45 (12 February 2013)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
CASE
NO: A 240/10
DATE:12/02/2013
In
the matter-between-:-
PHINEAS
LUCKY
KOKO
…................................................................................
Appellant
and
THE
STATE
…......................................................................................................
Respondent
JUDGMENT
Wright
AJ
1.
The Appellant is a man who was convicted of rape in 2009. He was
sentenced to 7 years imprisonment and it would appear that he
has
been on bail from very shortly after the time of his arrest. The
State had alleged that he had raped a 15 year old girl.
2.
The complainant and her mother testified for the State. Unfortunately
a large part of the record has gone missing. A fire occurred
at the
Magistrate’s office some time after the conviction and
sentence. This has resulted in the evidence of the following
witnesses being lost:
(a)
Dr Sayed, who examined the complainant and who testified for the
State
(b)
the evidence of the accused
(c)
the evidence of the accused’s alibi witness.
3.
On 23 May 2011 this Court postponed the appeal for reconstruction of
the record.
4.
One of the grounds of appeal is that the Appellant’s version is
reasonably possibly true. On what is before me I am unable
to weigh
this submission.
5.
The J88 medical form completed by Dr Sayed was admitted by the
Appellant. Presumably Dr Sayed was called by the State to clarify',
add to or subtract from his report.
6.
On 29 August 2012 the Clerk of the Court, Pretoria wrote to the
Director of Public Prosecutions stating that:
(a)
he or she had attempted unsuccessfully to get hold of back-up CD’s
(b)
the Presiding Magistrate no longer has her notes
(c)
the attorney, Mr Beetge was contacted with a view to reconstruction
“maarkry nie samewerking van sy kant nie ”
(d)
the Prosecutor no longer works at the Pretoria Magistrate’s
Court.
7.
The Presiding Magistrate deposed to an affidavit stating that because
of the fire she finds it impossible to assist with the
reconstruction
of the record and that any attempt to do so would not be a true
reflection of the proceedings before her and could
prejudice either
side.
8.
I am perturbed by the allegations made in the letter by the Clerk of
the Court concerning the attorney. I make no findings in
this regard
however. It is not clear to me that every effort has been made to
reconstruct the record. It may be that Mr Beetge
or any other
attorney or Counsel involved in the case is willing but unable to
assist in the reconstruction of the record. I do
not know what steps
were taken, if any, to get hold of the Prosecutor. He or she may be
able to help. If not, it should be stated
in a detailed affidavit why
he or she cannot assist.
9.
I am not minded to make orders against the Magistrate, the
Prosecutor or Mr Beetge. They have not been given an opportunity
to
be heard on my proposed course in this case. I propose the order set
out below.
1.
The appeal is postponed sine die
2.
The matter is referred to the Clerk of the Court, Pretoria who is
ordered:
2.1
to request the Presiding Magistrate, the Prosecutor(s) involved, the
defence representatives, including Mr Beetge and the Appellant
to
attend a hearing in a Court
presided
over by the Presiding Magistrate, Ms Neethling in which the above
persons attempt to reconstruct the record. Thereafter
the Clerk of
the Court is to file an affidavit setting out in detail the outcome
of these efforts;
2.2
alternatively to 2.1, in the event of the above meeting not being
possible or practicable, to file a detailed affidavit with
the
Registrar of this Court setting out precisely what steps have been
taken by the Clerk of the Court, Pretoria:
2.2.1
to contact the persons mentioned in 2.1
2.2.2
to collate their response
2.2.3
to reconstruct the record.
3.
Irrespective of whether the Clerk of the Court follows 2.1 or 2.2
above he or she is ordered to file his or her affidavit , together
with a copy of the record, reconstructed as best as is possible in
the circumstances, with the Registrar of this Court by no later
than
30 April 2013.
4.The
bail of the Appellant is extended pending the outcome of the appeal.
5.
A copy of this order is to be sent forthwith by the Registrar of this
Court to the Clerk of the Magistrate’s Court Pretoria
who shall
then immediately send a copy of this order either by hand, fax or
electronic means to the persons referred to in 2.1
above.
6.
After 30 April 2013 both the State and the Appellant shall be
entitled to set the appeal down for hearing on a date allocated
by
the Registrar of this Court.
7.
If the Appellant does not, by 31 May 2013 serve a notice of set down
of the appeal on a date allocated by the Registrar, the
National
Prosecuting Authority is ordered to do so immediately thereafter.
G
C WRIGHT AJ
J
Van Schalkwyk AJ
I
agree and it is so ordered
CHAMBERS,
TSHWANE
....
February 2013