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[2009] ZAGPPHC 56
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S v Mlambo (A1000/2006) [2009] ZAGPPHC 56 (15 May 2009)
IN THE HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG
HIGH COURT, PRETORIA)
DATE: 15/05/2009
CASE
NO: A1000/2006
UNREPORTABLE
In the matter between:
PATRICK MLAMBO
APPELLANT
And
THE STATE
RESPONDENT
JUDGMENT
MAVUNDLA. J.;
[1] The appellant was charged at
the regional court at Benoni as follows:
Count
one
: robbery with
aggravating circumstances, and sentenced
to 15 years
imprisonment;
Count two
:
unlawful possession of a firearm, found not guilty,
Count
three
: unlawful
possession of an unknown quantity of
ammunition, found not
guilty;
Count four
:
murder, sentenced to fifteen years imprisonment.
Count
five
: unlawful
possession of a firearm, sentenced to two
Years;
Count
six: Unlawful
possession of ammunition; one (1) year
Imprisonment. It was ordered
that the three (3) years of
count five and six (6) are to run
concurrently with count four and that five years of count 4 are to
run concurrently with the
15 years of count 1. The effective
sentence is 25 years.
[2] The appellant is appealing
against both the conviction and sentence. The appellant prepared his
own the notice of appeal. It
would seem that the appeal is noted
against the conviction on murder. However, in the heads of argument
submitted on behalf of
the appellant it is submitted that the appeal
is against both conviction and sentence. It would seem that the State
is also in
agreement that the appeal is against both conviction and
sentence. In my view, having regard to the fact that the appellant
was
unrepresented when he noted his appeal, and having regard to the
long sentence imposed, it is proper that the appeal be accepted
to be
against conviction and sentence.
[3] Before dealing with the merits
of the appeal, it is necessary to deal with a preliminary point
in
limine
raised on
behalf of the appellant. It is submitted by Mr. Tshabalala from
Pretoria Justice Centre, who appears on behalf of the
appellant that
the reconstructed record does not assist this Court to reappraise the
appellant’s trial. He states that the
appellant admitted in
mitigation of sentence that he killed the deceased but did not make
any admission about the offences which
he was charged.
[4] On 26 March 2007 the respondent
filed his heads of argument that the matter could not be argued on 3
April 2007 as the record
was incomplete. Mr. Tshabalala submits that
the efforts of the magistrate
to reconstruct the record have
been without success and that under the circumstances the appellant’s
conviction and sentence
should be set aside.
[5] This matter appeared on 3 April
2007 before Goodey AJ and Van Graan AJ, who ordered as follows:
“
1. That the matter
is postponed sine die.
2. That the clerk
of the court Benoni, is hereby ordered to
reconstruct the record as
soon as possible as comprehensibly
as possible, with
specific reference to the evidence of the
following witnesses;
Patric Hlene, Thomas Fana Hambu,
Joseph Melanie. The
applicant Moosa Shupalane
(apparently taken down by long
hand, annexure E) and Sus
Pretty and or Bridget
Ngnutheleni.
3. Such attempt to reconstruct
should include a search for relevant tape recordings of the
proceedings and, if found the urgent
transcription thereof, if the
tape recording cannot be found, it should be attempted to obtain any
notes made by the presiding
officer, the Prosecutor and the defence
of such proceedings which should then be transcribed. The
investigation officer should
then also be requested to trace the
above witnesses and obtain affidavits from them on the contents of
their evidence at the trial.
Such affidavits must then be submitted
to the appellant to obtain his version by affidavit. After this, a
report by the presiding
officer should be requested for submissions
to this Honourable Court for consideration, accompanied by an
affidavit by the clerk
of the Court setting out all steps that were
taken to reconstruct the record.” I shall refer to this order
as the reconstruction
order, for purposes of convenience.
[6] The order mentioned herein
above, in directing the clerk to reconstruct the record as mentioned
therein, is in line with the
steps to be taken in reconstruction
of the record as stated in
R v Wolmarans and Another
1942 TPD
279
, which decision has ever
since been followed in many cases
dealing with reconstruction of a record. In the Wolmarans case the
following order was made:
‘
1. The matter is referred
to the clerk of the regional court, Heidelberg, with the direction
that he gathers together the best
secondary evidence as to the
contents of the record, including the affidavits from—
(a) an official who can say that
the record has been mislaid;
(b) from witnesses and others who
were present or who have knowledge of what transpired at the trial.
To show what the content
was of the evidence led and the proceedings
that took place as well as the plea and further proceedings,
2. That he submits such
reconstructed and affidavits to the appellant/ applicant and his
legal representatives, to obtain from
them their consent that the
record has been correctly reconstructed.
3. That the appellant
/ applicant makes an affidavit as to the consent or otherwise of the
reconstructed record.”
[7] In the matter of S v Booysen
1996 (2) SACR (2) (EC) 393 at 394b-e the court on appeal pointed out
that the magistrate summarised
the evidence and gave his judgment,
which it would seem was premised,
inter
alia
, on the court’s
credibility findings. The court on appeal further remarked that the
magistrate pointed out various improbabilities
and contradictions
that emerged from the evidence of the appellants. The court on
appeal said that in order to evaluate the magistrate’s
observations and reasoning, it is necessary to do so in the light of
the tendered evidence. The magistrate’s summary of the
evidence
is not the record thereof.”
[8] The court in Booysen (
supra)
at 394 was referred to the matter of S v S
1995 (2) SACR 420
(T)
where Van Dijkhorst J said that the question to be answered, is
whether the reconstructed record is substantially correct and
complete? Absolute agreement is not required. The question must be
answered in the context of the relevant incident, and not
in
vacuo.
However, Van
Dijkhorst J in that matter, where the magistrate had a comprehensive
judgment and had summarised all important and
relevant evidence and
made credibility findings, rejected the submission that a court on
appeal can with confidence place much
value on these findings, rather
than on the questions and the answer portions of the record which
was incomplete. Van Dijkhorst
J said that it is precisely on the
magistrate’s evaluation of the evidence that the court on
appeal must make a finding.
[9] In casu, we have been furnished
with the reconstructed record. However the affidavits of all the roll
players mentioned in the
reconstruction order of 3 April 2007 has not
been made available to the court. The clerk of the court has not
filed an affidavit
stating what steps she took in complying with the
aforesaid order. Whilst I have no doubt that the magistrate has to
the best
of his ability reconstructed the record, there is, however,
no confirmation by the appellant either or his then legal
representative
that he agrees with the reconstructed record. It is
therefore not possible for this Court to
deal with the question to be asked,
whether the reconstructed record was in all material respects a
replica of the trial proceedings
of the trial; vide S v Joubert 1991
(1) (AD) where the Appeal Court record had not been placed before the
appellant and that it
could not be concluded that a properly
reconstructed record was before the Court and that the appellant was
not prejudiced by the
irregularity occasioned thereby and proceeded
to set aside the conviction and sentence.
[10] The appellant testified in
mitigation, inter alia, as follows: At page 32 lines 4- “I went
back to the deceased to him
to give me back my which I gave him to
safe keep it for me. Brigette, at that stage, was not present when I
went back to fetch
my money and struggle and (indistinct). We started
pushing each other, he appeared to me as a person who was fighting
against
me and the last occurrence,,, (indistinct). They did not pay
much attention on me when I asked them of the deceased to give me
back my money and I had given him R1 000. And it appeared to me as
if all the people who were there on that day of the incident
was
fighting against me, they know the truth. And … (indistinct).
Had a firearm in his possession, back at his bar. He
gave me the
money as well as the firearm and the firearm was in the bag. Got
impatient and people did not pay much attention on
me, so I can get
back my money. I understand that I was or my conduct was wrong. I did
not run away shortly after this incident
, I waited for the police
after this incident.”
[11] The appellant under cross
examination also, stated that what he told the court during his
evidence on the merits is not the
truth. It would also seem that his
version is now that he had given the deceased an amount of R7 000, 00
to keep for him. The deceased
gave the appellant a bag in which the
money was supposed to be. Only an amount of R3000, 00 was in the bag.
A struggle then ensued
between the two them. He says that the people
who were there were against him the appellant. The deceased gave the
appellant his
money and a firearm which he had with him. The
appellant got impatient with the deceased. However it is not clear
from the record
how was the deceased shot. The record at page 32
lines 18-22 reads as follows:
“Got impatient and
people did not pay attention on me, so that I can get back my money.
I understand that I was or
my conduct was wrongful. I did not run
away shortly after the incident. I waited for the police officers to
come and arrest me.”
At page 35 lines 10-26 to the court’s
questions the appellant responded as follows:
“
Up until now the
mitigation, you have told the court that what cause you to shoot the
deceased, but you also mentioned that the
firearm was in the bag. How
did it come about that the firearm was removed from the bag at that
stage when…? (Indistinct)
from the money. I took it and put in
(sic) top of the table and we started counting the money. And I told
him that this money was
not enough, there was a shortage.
And the argument, did that result
after you had counted the money and found that there was only R3 000
instead of R10 000?—that
is correct.
What did you do with the firearm
afterwards, did you keep it?—Shortly after I shot the
deceased, I took this firearm along,
but after three days I was
afraid to hand it to the police officers, I was afraid that I might
be arrested, because I did something
bad..”
[11] It would seem that the
appellant admitted to the shooting of the deceased. It is not clear
from the record whether the shooting
was during the struggle or after
the struggle. The magistrate does not seem to have dealt with that
aspect when he sentenced the
appellant. This is crucial for purposes
of deciding whether substantial and compelling circumstances exists
in this matter. I am
mindful of the fact that the court in its
judgment found on inferential bases that the appellant shot the
deceased.
[12] Where the reconstruction is
not possible, the court has discretion to set aside both the
conviction and sentence. In casu,
the clerk of the court, in my view,
has not as yet fully complied with the reconstruction order. Having
regard to the fact that
the appellant, it would seem, has admitted
to the killing of the deceased, it would be premature to, at this
stage finalise the
appeal and set aside the conviction and sentence,
without affording the clerk of the court an opportunity to file her
affidavit
stating all the steps she has taken in complying with the
reconstruction order. I am of the view, that where life has been
lost
as the result of admitted conduct of the appellant, it is
undesirable to set aside the conviction and sentence of the
appellant
purely on technicality, without affording the clerk of the
court to remedy the shortfall. I therefore do not accede to the
submission
of Mr. Tshabalala that the conviction should be set aside
as well as the sentence. Only when it is impossible to reconstruct a
record or obtaining the affidavits mentioned herein above, should the
conviction and sentence be set aside, vide S v S 1995 (2)SACR
420 (T)
at 4424b-c. In casu, there is n o evidence under oath stating that
the affidavits identified herein above cannot be obtained.
Such
affidavit must also indicate what steps were taken to trace those
people who must make such affidavits and why they cannot
be traced.
[13] In the result I make the
following order:
1. That the matter is referred to
the clerk of the regional court,
Daveyton, with the direction that:
(a) She submits to the
Registrar of this Court within
Thirty days of this order, all
the affidavits and the
Report referred to in the
order 3 contained in the
Order dated 3 April 2007,
under case Number A1000/06, a copy of which is attached hereto
marked “X”.
(b) In the event it not be
possibly to comply partly or wholly with this order, the clerk of the
regional court to submit an
affidavit stating all the steps he/ she
has taken to comply with this order, and the reasons for not being
in a position to comply
with the order partly or wholly.
N. M. MAVUNDLA
JUDGE OF THE COURT
HEARD: 11 MAY 2009
I AGREE DELIVERED : 15 MAY 2009
T. PHALANE
ACTING JUDGE OF THE COURT