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[2008] ZAFSHC 118
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S v Tshubane (260/2008) [2008] ZAFSHC 118 (11 September 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Review
No. : 260
/2008
In
the review between:-
THE
STATE
versus
TEBOHO
E. TSHUBANE
_____________________________________________________
CORAM:
RAMPAI,
J et
MOLEMELA
,
J
JUDGMENT
BY:
MOLEMELA,
J
_____________________________________________________
DELIVERED
ON:
11
SEPTEMBER 2008
_____________________________________________________
[1]
The
matter came before me on automatic review in terms of section 302
read with 304 of the Criminal Procedure Act, 51 of 1977 (“the
CPA”). The accused person was charged with two counts of
assault with intent to do grievous bodily harm. Both counts were
taken together for the purpose of sentence and he was sentenced to 6
(six) months imprisonment. He was also declared unfit to
posses a
firearm.
[2]
The
transcription services company that was instructed to transcribe the
record has submitted a letter stating that the CD recording
on which
the proceedings were mechanically recorded was faulty and could
therefore not be transcribed. The magistrate that presided
over the
matter also wrote a letter stating that “
I
am doing a lot of cases per day, I cannot recall the record of this
one, besides the accused is already outside, he got a parole
in
November last year i.e. 2007.”
The
office manager of that court also
sent
a letter stating “
na
menige pogings en alle moontlike hulpmiddele kon ons die saak nie
opspoor op die rekenaar nie en kan die saak dus nie getranskribeer
word nie “
[3] I
invited the office of the Director of Prosecutions to give an input
as to how best to deal with the matter under the afore-mentioned
circumstances, especially as the matter was referred to this court
after the accused person had already served part of his sentence
and
been released on parole. In his response Adv. Botha made the
following recommendations:
“
(1)
It is therefore submitted that the record be remitted to the
Magistrate with an instruction to re-call and re-hear the witness
and
the accused who gave evidence at the trial. This must happen in the
presence of the accused.
(2) The
prosecutor who prosecuted in the matter must be approached if
the
Magistrate cannot recall who testified in the matter. It is
suggested that the interpreter would also in all probability be
able
to make an input in this regard.
(3
)
If for some or other reason the record cannot be reconstructed the
conviction and sentence ought to be set aside as the Court
cannot
assess whether the conviction and sentence were in accordance with
justice.”
(My
emphasis)
.
[5]
Adv
Botha seems to be relying on the case of S v Peza 1962(1) SA 664(O)
at p665(E) with regards to his fist recommendation. I am
not inclined
to follow this recommendation for the simple reason that the
circumstances of this case are distinguishable. Whereas
in the case
of S v Peza (
supra
)
part of the record was available,
in
casu
,
there is no record at all. I agree with Adv Hiemstra’s view,
who is from the same office of the Director of Prosecutions
as adv
Botha, that application of what was held in S v Peza (
supra
)
to the present circumstances would amount to a trial de novo as
opposed to a reconstruction of the record. In my view, ordering
a
trial de novo in circumstances where the accused person has already
served part of his sentence and been released on parole would
be
tantamount to subjecting the accused person to a double jeopardy.
Such an order would not serve the interests of justice. The
fact of
the matter is that there is no record of the proceedings that were
held at the district court. The remarks made by both
the presiding
magistrate and the office manager confirm that the record cannot be
reconstructed. See S v Talenyane 2006(2) SACR
153 (O) at paragraph 10
on p156.
[6] In
my view, the circumstances of this case call for implementation of
paragraph 3 of Adv Botha’s letter as referred to
in paragraph 4
hereinabove. Under such circumstances, the conviction and sentence
ought to be set aside. I would accordingly be
inclined to grant such
an order. I would also order that the accused person’s criminal
record flowing from this conviction
be expunged from the records of
the SAPS Criminal Record Centre in Pretoria.
It is therefore ordered
as follows:
The
conviction and sentence are set aside.
The
Head Personnel of SAPS Criminal Record Centre in Pretoria is ordered
to forthwith expunge the accused person’s criminal
record in
respect of his conviction on two counts of assault with intent to do
grievous bodily harm as effected by the Clocolan
Magistrate’s
Court on the 2
nd
August 2007 under case no 144/2007 .
The Registrar of this
court is directed to ensure that a copy of this order is served on
the Head of SAPS Criminal Record Centre
in Pretoria.
_
_________________
M
B MOLEMELA, J
I concur.
___
_______________
M H
RAMPAI
,
J
/AM