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[2008] ZAFSHC 130
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S v Mariti (269/08) [2008] ZAFSHC 130 (27 November 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Review No. : 269/08
In
the review between:-
THE
STATE
versus
KHOTSO
VINCENT MARITI
_____________________________________________________
CORAM:
MOLEMELA
,
J
et
MOLOI,
AJ
JUDGMENT
BY:
MOLEMELA,
J
_____________________________________________________
DELIVERED
ON:
27
NOVEMBER 2008
_____________________________________________________
[1] The
matter came before me on automatic review in terms of section 302
read with section 304 of the Criminal Procedure Act, 51
of 1977 (“the
CPA”). The accused person was charged with two counts of
housebreaking
with intent to steal and theft, for which he was sentenced to 12
(twelve) months’ imprisonment and 18 (eighteen)
months’
imprisonment, respectively, with half of each sentence being
suspended for 4 (four) years on condition that the accused
person is
not convicted of housebreaking with intent to steal and theft
committed during the period of suspension.
[2] On
scrutinising the record of the magistrate’s court I noted that
the transcription services company transcribing the
record indicated
that they received two
compact
discs (CD’s) but one that of them was completely unrelated to
the matter in question. I also noted that the magistrate’s
judgment was not part of the record.
[3] From
the transcribed part of the record, it is
clear from p. 30 of the record that when the matter was postponed
that day, the state case had not been closed yet. It would appear
that the state had already called 3 witnesses and still intended
calling two more witnesses. The evidence of the 3 witnesses
concerned in only related to count 1. The current transcribed record
does not reflect any evidence in respect of count 2. No part
of
transcribed reflects the defence case. It also does not reflect the
magistrate’s judgment, from which one would have
hoped to glean
the remaining evidence that was presented
[4] Having
noted the above I duly sent a letter to the magistrate that had
presided over the matter requesting him to arrange for
a diligent
search for the correct CD’s. I further requested him to
reconstruct the record if he could not find the relevant
CD’s.
Five months later, the magistrate’s response was as follows:
“
(a) After a diligent search by
the local court stenographer, the missing CD’s could not be
found.
(b) The Magistrate regrets to inform
that he is not in a position to reconstruct the record, seen to the
fact (sic) that no notes
were kept of the judgment.”
[5
] Upon
receipt of such response I contacted the prosecutor that had presided
over the matter with a view of establishing whether
she had kept
notes that could assist with reconstruction of the evidence and also
enquired whether she had record of all the witnesses
that testified
in the matter with a view to ordering the recalling of these
witnesses if need be. Her response was that she had
not made any
notes pertaining to the proceedings and could not recall the names of
other witnesses that were called as well as
their evidence.
[6] It
is trite that a magistrate’s court is a court of record.
Review proceedings as contemplated in
section 303
of the
Criminal
Procedure Act are
proceedings of an urgent nature requiring that the
record be forwarded to the High Court within 7 (seven) days after
determination
of the case. It goes without saying that the record
that is forwarded should be a complete record of the proceedings.
In
casu
,
an incomplete the record was sent to the High Court three months
after determination of the case. This in itself is unacceptable.
Pursuant to my query to the magistrate, there was a further five (5)
months’ delay in responding to my correspondence, which
was
apparently caused by the fact that more CD’s were sent to the
transcription services company with the hope of tracing
the correct
CD. This is highly unacceptable. It is desirable that the presiding
magistrate ensure that a complete record of the
proceedings is
forwarded to the High Court within 7 (seven) days of completion of
the case as required by the Act. Should the
magistrate discover that
the record is incomplete the magistrate should, while the CD’s
are being sought, preserve his notes
or, at that stage already, make
an effort of reconstructing the record while the matter is still
fresh in his memory.
[7]
As
already mentioned,
In
casu
the presiding magistrate and the prosecutor that prosecuted the
matter cannot be of any assistance in the reconstruction of the
record as they, due to a time-lapse, no longer have a recollection of
the matter. Considering that the convections related to
offences of
an economic nature chances are that the accused has by now been
released on parole as he has been in custody for more
than half of
his effective sentence. This despite the fact the court had during
this period not made any determination as to
whether the proceedings
were in accordance with justice or not. Such a state of affairs can
cause irreversible prejudice to an
accused person. This is so
unnecessary as it can easily be obviated by a presiding magistrate
simply doing what he/she is supposed
to do, i.e. checking whether the
record of proceedings is complete before forwarding it to the High
Court on review.
[8
]
Under circumstances like these, it would serve no useful purpose to
refer the matter back to the magistrate for recalling of
those
witnesses whose evidence has not been recorded at all , as it would
in fact almost amount to a trial
de
novo
,
especially as there is no evidence whatsoever on record in respect of
count 2. Such an order would, in my view, not serve the
interests of
justice. See
S
v TALENYANE
2006 (2) SACR 153
(O);
S
v TSHUBANE
(unreported) Review No. 260/2008;
S
v WHITNEY & ANOTHER
1975 (3) SA 453
(N) at 456 E – F;
S
v S
1995 (2) SACR 420.
[8] I
accordingly make the following order:
8.1 The
conviction and sentence are set aside.
8
.2 The
registrar of this court is to serve a copy of this order on the Head
of SAPS Criminal Record Centre in Pretoria.
_
_______________
M B
MOLEMELA
,
J
I concur.
_____________
K J MOLOI, AJ
/sp