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[2009] ZAGPPHC 229
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Lemao v S (A270/09) [2009] ZAGPPHC 229 (31 March 2009)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT)
DATE:
31 March 2009
CASE
NO:A270/09
MAGISTRATE
PRAKTISEER
Case
No: A316/2007
Magistrate’s
serial no: 74/2007
High
Court Ref No: 1081
THE
STATE VS CONCLEY PHEHANE LEMAO
REVIEW JUDGMENT
BOTHA
J:
The
accused was sentenced to two years imprisonment on a charge of
housebreaking with the intent to commit an offence unknown to
the
State and on a charge of assault with the intent to do grievous
bodily harm.
When
the matter was sent on automatic review I pointed out that the record
was incomplete, there being no transcription of the accused’s
evidence.
The
magistrate replied by explaining that the case was heard by an acting
magistrate whose contract was terminated at the end of
October 2008.
The presiding officer, one advocate Seemela, was given my query, but
he did not respond to it. The stenographer could
not find the
necessary evidence on the recording machine. He concluded his answer
by saying that because advocate Seemela is not
longer in the employ
of the Department of Justice, the record cannot be reconstructed.
The
state advocates point out that it seems that the evidence of a
witness one Anea Serage, was also not transcribed. They point
out
that advocate Seemela should be available in the country and that he
should be able to reconstruct the record.
I
agree. The magistrate’s attitude is, with respect, supine.
Advocate Seemela is under an ethical obligation to render his
assistance in the finalization of matter over which he presided. In
any event he was not the only person who could assist in the
reconstruction of the record.
The
obligation to reconstruct the record rests on the clerk of the court
and he may refer to various parties such as the magistrate,
the
prosecutor, the interpreter, the accused and witnesses. He should
give both the State and the accused the opportunity to peruse
his
reconstruction and also submit their versions to the reviewing judge.
See S v Ntantiso and Others 1997(2) SACR 302 (ECD) at
303 l-304d
The
following order is made:
1.
The matter is referred back to the clerk of the court, Praktiseer,
with the instruction that he or she obtain the best secondary
evidence of the portion of the evidence that was not transcribed.
2.
Thereafter the reconstructed record must be submitted to the
reviewing judge.
C
BOTHA
JUDGE
OF THE HIGH COURT
I
agree
S
POTTERHILL
ACTING
JUDGE OF THE HIGH COURT