S v Segopolo (905/2007) [2007] ZAFSHC 130 (22 November 2007)

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[2007] ZAFSHC 130
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S v Segopolo (905/2007) [2007] ZAFSHC 130 (22 November 2007)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Review No.: 905/2007
In the review between:
THE STATE
and
JOHN LUCKYBOY
SEGOPOLO
CORAM:
RAMPAI, J
et
MABESELE, AJ
JUDGEMENT:
RAMPAI, J
_____________________________________________________
DELIVERED ON:
22 NOVEMBER 2007
_____________________________________________________
[1] The matter came to
this court by way of a special review in terms of section 304(A) Act
No. 51 of 1977 on the 15
th
November 2007.
[2] The accused was
arrested on the 1
st
January 2005. He was charged with rape. It was alleged that he
committed the crime at Brandfort on the 1
st
January 2005. The victim was a 9 year old girl, M L M.
[3] His trial started in
the Brandfort regional court on the 28
th
July 2005. He pleaded not guilty. He was legally represented. On
the 2
nd
September 2005 he was convicted notwithstanding his plea. He was
then committed in terms of section 52(1)(b) Criminal Law Amendment
Act, No. 105 of 1977 for sentence by the high court. Since then the
case has been postponed on numerous occasions still in the regional
court. On the 18
th
April 2006 Mr. D. M. Soomaroo, the regional court magistrate,
recorded that the court record and the tapes of the proceedings were
missing.
[4] On the 16
th
July 2007 Mr. J. H. Greyvenstein, the trial court magistrate,
addressed a letter to Mr. K. M. Lalbahadur, the regional court
president.
The letter reads:
“
Mr K M Lalbehadur
Regional
Court President
Free
State
Sir
The State v J. L. Segopolo: Case
Number: SH2/2005
I have concluded the above mentioned
matter in the Regional Court. The matter was then referred in terms
of section 52(1)(b) of Act
105 of 1997 to the High Court for
sentencing purposes. I was informed that the record of the
proceedings went missing. It is impossible
for me to reconstruct the
matter. I am of the opinion that the High Court must be approach to
set aside the guilty judgment and
to make a ruling that the matter
must be started
de novo.
Jan Greyvenstein
MAGISTRATE:
BLOEMFONTEIN
JGreyvenstein@justice.gov.za”
[5] It would appear that
the regional court president or someone attached to his office caused
the matter to be investigated further.
On the 23
rd
August 2007 Ms N. M. Rens, the administrative appeal clerk, made a
sworn statement as regards the tapes. She declared:
¡°
STAAT TEEN SEGOPOLO
SH205/05
Hiermee verklaar ek onder eed in
Afrikaans dat ek Ntozimbi Maurke Rens ‘n beampte werksaam te
landdroshof Bloemfontein as klerk
by die klerk van die hof afdeling.
Ek
het volgens Rekords op 02/09/2005 bande vanaf Advokaat Jackie Moles
ontvang en daarvoor geteken om te laat tik. Aangesien ek nooit
belas
was met die taak om bande te laat tik nie moes ek dit vir Rose Jacobs
gegee het wat belas was met die taak.
Ek
het sedert verlede jaar na die bande gesoek in die record kamer maar
kon niks vind nie.
N.
M. RENS”
[6] On the 9
th
November 2007 Mr. Lalbahadur addressed the following letter to
Malherbe JP:
“
The Honourable Judge President
High
Court of the Free State
Free
State Provincial Division
Private
Bag X20612
BLOEMFONTEIN
9300
Sir
STATE vs J L SEGOPOLO: CASE NO SH
2/2005
I
enclose herewith copies of the above case.
I
am informed that this case has been referred to the High Court for
sentence. The case record has gone missing and every effort
to
locate it was in vain. The Presiding Officer and the Appeals Clerk
have supplied their respective comments which are attached
for your
perusal.
In
view of the fact that as the original record has gone missing and
that the Presiding Officer is not in a position to reconstruct
it, I
humbly ask that you place this matter before a Judge to have the
conviction set aside.
K
M LALBAHADUR
REGIONAL
COURT PRESIDENT:
FREE
STATE”
[7] The Director of
Public Prosecution was made aware of the problem. In a letter dated
the 27
th
February 2007 he wrote to the Bloemfontein Senior Prosecutor. He
said the following about the missing record:
“
Die Senior Aanklaer
Privaatsak
X20583
BLOEMFONTEIN
9300
DIE STAAT TEEN J.L SEGOPOLO
BRANDFORT
MAS: 05.01.2005
SAAK
NOMMER: SH 2/2005
U
9/2/4/1 – 178/2005 VAN 24 JANUARIE 2007 VERWYS.
Die Direkteur van Openbare Vervolgings
merk soos volg op:
In die lig van die feit dat die
oorkonde van die verrigtinge in die Verhoorhof klaarblyklik
onherroeplik verlore is, moet die relevante
streeklanddros versoek
word om die Hooggeregshof te nader ten einde die skuldigbevinding op
‘n gemeneregtelike hersiening ter
syde te laat stel.
Sodra die skuldigbevinding deur die
Hooggeregshof ter syde gestel is, moet die verrigtinge teen die
beskuldigde
de novo
‘n aanvang neem en moet hierdie kantoor ooreenkomstig verwittig
word.
Dossier
hiermee.
HOOFKLERK
VAN DIE
DIREKTEUR:
OPENBARE VERVOLGINGS
/kp”
[8] Ms Rens has been
looking for the tapes for a very long time. She made her affidavit
on the 23
rd
August 2007. She last saw the cassettes on the 2
nd
September 2005 when she handed them to a certain Ms Rose Jacobs whose
responsibility it was to transcribe them. She has now lost
the hope
of ever tracing the missing cassettes. There is no statement from Ms
Jacobs as to what she did with the cassettes. I am
uncertain as to
why no statement was obtained from her.
[9] In his letter the
trial magistrate state that it was for him impossible to reconstruct
the record. I assume, in his favour, that
he probably enquired from
all the possible sources such as the Prosecutor, Mr. M Nel, Advocate
Jackie Moles, Attorney G Lombard,
Ms R. Jacobs and other persons who
could possibly be of any assistance but that all his diligent efforts
were to no avail. Apparently
everyone concerned now accepts that the
record is lost for good and that it is practically impossible to
reconstruct it.
[10] In the
circumstances the transfer of the proceedings to the this court in
terms of section 52(1)(b) Act No. 105 of 1977 has
become a futile
exercise. I have been asked to set the conviction of the accused
aside. The request appears reasonable given the
circumstances I have
outlined above. I am inclined to do so. There is no prejudice to
the accused at this stage.
[11] Accordingly
I make the following order:
11.1 The conviction is
set aside.
11.2 The accused must
forthwith be released from custody.
______________
M.H. RAMPAI, J
I
concur.
___________________
M. M. MABESELE, AJ
/em