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[2009] ZAGPPHC 307
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S v Tshabalala (A449/08) [2009] ZAGPPHC 307 (8 September 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL
PROVINCIAL DIVISION)
Review
ease number : A449/08
High
court reference number : 1890
Date
: 08 September 2009
In
the matter between:
THE
STATE
And
JOSEPH
MOHAPI TSHABALALA
JUDGMENT
MOLOPA
J
The
accused was convicted on
27 March 2008
as charged and was sentenced on 23 May 2008 to a fine of R3 000
(Three Thousand Rand) or six months imprisonment wholly suspended
for
five (5) years on condition the accused is not convicted of the same
offence committed within the period of suspension. The
accused was
further declared unfit to possess a firearm in terms of Section 103
of Act 60 of 2000.
From
the record before court it appears that the only transcribed record
relates only\ to the record of the sentence proceedings.
It
appears from a letter from the Senior Magistrate, Mrs M Froneman,
dated 03 September 2008,that the matter was referred back to
the
Magistrate who heard the matter, Mr Matlala, for reconstruction of
the record since the record of the proceedings could not
be
retrieved.
From
the response of the Magistrate Mr Matlala in a letter dated 03
October 2008 it appears that it was not possible to bring all
parties
concerned (the prosecutor, the complainant and the accused) together
for the purposes of reconstructing the record. The
accused has
allegedly relocated to another place. Reconstruction of the record is
thus impossible.
According
to the affidavit of the clerk of the court, dated 08 October 2008 the
proceedings could not be retrieved from the machines
because the
matter was recorded before the hard drives was crashed...", that
is the reason she could not cut the CD's.
In
the circumstances set out above, where no record is available for the
purpose of a review it cannot be said that justice was
will be served
if a conviction herein were to stand. The accused cannot be said to
have received a fair trial as envisaged in Section
35 of the
constitution of the Republic of South Africa Act 106 of 1996.
In
the result the conviction and sentence are set aside.
L
M MOLOPA
JUDGE
OF THE HIGH COURT
I
agree
T
J RAULINGA
JUDGE
OF THE HIGH COURT
It
is so ordered