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[2008] ZAWCHC 172
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Sithonga v S (A727/2007) [2008] ZAWCHC 172 (11 April 2008)
JUDGMENT
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO
:
A727/2007
DATE
:
11
APRIL 2008
In
the matter of:
ZOLANI
SITHONGA
Appellant
and
THE
STATE
Respondent
JUDGMENT
LOUW,
J
:
[1]
The appellant in this matter appeared in the Regional Court Bellvilie
on one charge of robbery with aggravating circumstances,
it being
alleged that on 16 April 1999 he had robbed one Van Collar of R17 090
in cash and of one Nissan bakkie by threatening
Van Coller with a
firearm and by stabbing him with a knife. On 24 May 2000 he entered a
plea of not guilty. After the trial before
the regional Magistrate
Lombard he was found guilty as charged on 29 June 2001 and he was
sentenced to 15 years' imprisonment.
[2]
The appellant wishes to appeal against his conviction and sentence
but it appears that the record of the proceedings of his
trial have
been lost and cannot be reconstructed. The facts are as follows in
this regard
[3]
On 3 July 2001 the appellant indicated in writing to the clerk of the
Parow Magistrate's Court that he wished to appeal against
his
conviction and sentence. According an affidavit deposed to by Ms
Valencia Leary who is currently the appeals clerk at the Bellville
Magistrate's Court, the matter was duly noted in the records of that
court as an appeal on 27 July 2001.
[4]
Pursuant thereto on 6 August 2001, Paar) Tikdienste, the contractor
then charged with transcribing records in the BeElvilfe
Magistrate's
Court, was requested to prepare four copies of the record of the
proceedings in the Regional Court for purposes of
the intended
appeal. It appears from an affidavit deposed to by Ms M Ferreira, a
senior administrative clerk at the Bellville Magistrate's
Court, that
she forwarded the tapes relating to the appellant's trial to Paarl
Tikdienste on 3 August 2001 but that neither the
tapes nor the
transcribed record was returned to the Magistrate's Court.
[5]
According to the affidavit of Ms Leary, who has gone through the
records held at the Bellville Magistrate's Court, the register
at
that court contains a note that tapes had been lost by Paarl
Tikdienste. Ms Leary states that she has gone through every filing
box held at the Magistrate's Court from 1993 to 2007 and that she has
not found the missing tapes.
[6]
Ms F de Beer deposed to an affidavit on 12 December 2007 wherein she
states that Paarl Tikdienste, of which she was the owner,
no longer
exists as an entity and that it is not possible to state whether the
relevant tapes were transcribed by Paarl Tikdienste
and to supply a
copy of such transcription. According to her, however, there was no
outstanding work owed to Bellville Magistrate's
Court and she states
that all records and tapes had been returned to that office.
[7]
Regional Magistrate Lombard who presided at the appellant's trial
deposed to an affidavit on 7 September 2007 wherein he states
that
while he has a vague recollection of the matter, he is unable to
assist in the reconstruction of the record because he retains
his
notes of trials in which he presides for two years and that his
[8]
Ms B Roodt-Lourens who appeared as the prosecutor for part of the
appellant's trial has likewise stated in an affidavit deposed
to on
12 December 2007 that she no longer has her notes relating to the
trial and that since she has no recollection of the facts
of the
matter she is unable to assist in the reconstruction of the record.
[9]
Finally, Mr L Pumela who appeared at the trial for the appellant was
contacted by Ms Leary on 18 July 2007. She states in her
affidavit
which she deposed to on 21 December 2007 that Mr Pumela informed her
that he also no longer has his trial notes and that
he could not
assist in a reconstruction of the record. Although she requested Mr
Pumela, according to what she states in her affidavit,
to provide an
affidavit to this effect, he has not produced same.
[10]
The investigation of the circumstances relating to the record of the
appellant's trial was initiated by Ms Leary who started
work as the
appeals clerk at the BeMviMe Magistrate's Court during January 2006
after she received an enquiry from the office of
the Minister of
Justice and Constitutional Development during February 2007. This was
foflowed by a renewed application for leave
to appeal by the
appellant on 13 March 2007.
[11]
It is clear from the aforegoing that the whole of the record of the
trial proceedings in the Regional Court relating to the
appellant's
trial has been lost and cannot be retrieved or reconstructed. In the
circumstances, the appellant cannot be afforded
the opportunity to
exercise his right to have his case reconsidered on appeal in terms
of the appeal procedures of this Court.
This is a part of the
appellant's constitutional right to a fair trial. It is trite that
the only course open is to set aside the
conviction and sentence. Mr
Sroeksma
,
who appears on behalf of the State, concedes that this is the order
that should be made.
[12]
It follows, in my view, that the following order should be made:
The
appellant's conviction and sentence are set aside.
ZONDI.
J
:
I confirm.
ZONPI.
J
LOUW.
J:
it is so ordered.
LOUW,
J