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[2009] ZAGPPHC 3
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S v Ntopane and Another (A742/2006) [2009] ZAGPPHC 3 (10 March 2009)
/SG
IN THE HIGH COURT OF
SOUTH AFRICA
(TRANSVAAL PROVINCIAL
DIVISION)
DATE: 10/03/2009
CASE NO: A742/2006
UNREPORTABLE
In
the matter between:
THABO
DONALD NTOPANE 1
ST
APPELLANT
SIMON
NTIKWANE MOROKANE 2
ND
APPELLANT
And
THE
STATE RESPONDENT
JUDGMENT
MAKGOKA, AJ
[1] The two appellants
were each convicted on a count of murder and sentenced each to
fifteen years imprisonment. The second appellant
was further
convicted of one count of intimidation and sentenced to a further
three years imprisonment, which was ordered to run
concurrently with
the fifteen year sentenced on the murder charge.
[2] The appellants were
sentenced by the regional court Klerksdorp on 13 May 1999.
[3] At the start of
argument, we were informed from the Bar that the first appellant, Mr
Thabo Ntopane, has since been released
on parole, thus rendering the
appeal in respect of him, academic. The second appellant could not
benefit from parole consideration
since he had been sentenced to
another fifteen years imprisonment in respect of an unrelated charge.
As a result of the above,
this appeal would only be relevant insofar
as it concerns the second appellant, who for purposes hereof, would
be referred to simply
as “the appellant”.
[4] At the time of his
conviction and sentence, the appeal procedure was still governed by
rule 67 of the Magistrate Court Act,
32 of 1944. The said rule
provided the following:
“
A convicted
person desiring to appeal under section 103(1)(a) of the Criminal
Procedure Act, 1977 (Act 51 of 1977) shall within
14 days after4 date
of conviction, sentence, or order in question, lodge with the clerk
of the court a notice of appeal in writing
in which he shall set out
clearly and specifically the grounds, whether of fact or law or both
fact and law on which appeal is
based …
”
[5] Important from the
said section, is that no leave to appeal was required at that stage.
The requirement for leave to appeal
only came into effect on
28 May 1999. What the appellant had to do was to file his
notice of appeal, compliant with
the provisions of rule 67(1), within
fourteen days of conviction and sentence.
[6] The appellant first
noted his appeal on 10 May 2002. A second notice of
appeal by the appellant was filed on
23 March 2004. For
some unclear reason, but apparently under an erroneous impression
that leave to appeal was required,
the appellant applied for, and was
granted leave to appeal on 22 September 2005.
[7] It is apparent then
that the appellant was well out of time with his noting of appeal,
taking 10 May 2002 as the earliest
date on which such
appeal was noted. Consequently, an application for condonation is
required, setting out the facts and reasons
for the delay. I would
revert to this aspect later in this judgment.
[8] The immediate concern
in this appeal though, is that the record of proceedings is
incomplete. Despite an order of this court
on 8 April 2008
that the record be reconstructed, both the State and the appellant
are
ad
idem
that efforts to reconstruct the record, have failed. This is mainly
because the presiding officer who heard the matter had since
retired
and is unable to recollect the matter or assist in whatever manner
towards reconstruction of the record.
[9] The missing parts of
the record include part of the cross examination of the
appellant by the prosecutor, re examination,
arguments and the
reasons for conviction, as well as the consideration of factors
affecting sentence.
[10] On behalf of the
appellant, Ms
Hensen
,
argued that the conviction and sentence should be set aside on the
basis of the record which is incapable of reconstruction.
On the
other hand, Ms
Mahomed
,
for the State urged us to strike the matter from the roll. I will
deal with these competing arguments later.
[11] The approach to
records which are not capable of reconstruction is trite and has been
restated in several decisions. Generally,
in the event where a
situation occurs that the record is incapable of reconstruction,
despite best efforts, the conviction and
sentence should be set
aside. See
S
v Joubert
1991 1 SA 119
(A) 126E I.
[12] In my view, however,
the present matter is distinguishable from the cases normally
encountered, in one respect. In the present
matter, the record is
incapable of reconstruction mainly because of the appellant’s
delay in noting his appeal. The appellant
noted his appeal some
three years after conviction and sentence. Such a delay
significantly led to the reduced chances of the
record
reconstruction. With passage of time, vital parts of the
reconstruction material simply got lost.
[13] In
S
v Marais
1966 2 SA 514
(T) 516G H the following was stated:
“
The appellant
has been seriously frustrated and prejudiced owing to a fault on the
part of the state’s servant. She is entitled
to an appeal as
of right. She is entitled to receive a copy certified as correct.
This cannot be achieved. She has been frustrated
in a basic right.
She has been deprived of this
through
no fault of her own
…
”
(My underlining)
[14] It seems to me
therefore that where a substantial part of the blame can be
attributed to an appellant, as is the case in the
present appeal, the
appellant is not entitled as of right, to have the conviction and
sentence set aside.
[15] Ms
Mahomed
referred us to the decision of
S
v Mantsha
2006 (2) SACR 4
(C). The facts in that matter are strikingly similar
to those in the present appeal. The appellant in that matter was
sentenced
on 7 August 1998. The appellant lodged his
notice of appeal together with condonation application more than four
years
later. In the meanwhile, the tapes of the evidence of the
trial got lost and the magistrate was unable to assist in the
reconstruction
of the record. The court refused the application for
condonation and struck the matter off the roll.
[16] I am therefore
satisfied that the appellant should not benefit from a situation
that, to a great extent, was of his making.
As a result, I would
strike the appeal off the roll. Given the view I take of the matter,
I do not deem it necessary to consider
the appellant’s
condonation application and the concomitant prospects of appeal.
[17] I would therefore
propose the following order:
1. The appeal of the
first appellant is removed from the roll.
2. The appeal of the
second appellant is struck off the roll.
T M MAKGOKA
ACTING JUDGE OF THE
HIGH COURT
I agree
F G PRELLER
JUDGE OF THE HIGH
COURT
A742/2006/sg
Heard on
: 20
October 2008
For the
Appellants
: Adv
J Henzen
Instructed by
: Legal
Aid Board
For the
Respondent
: Adv
S Mahomed
Instructed
by
: Director
of Public Prosecutions
Date of
Judgment
: 10/03/2009