S v Mofokeng and Another, S v Qhekoane (253/2006, 254/2006) [2006] ZAFSHC 113 (16 March 2006)

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[2006] ZAFSHC 113
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S v Mofokeng and Another, S v Qhekoane (253/2006, 254/2006) [2006] ZAFSHC 113 (16 March 2006)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Review No. : 253/2006
Review
No. : 254/2006
In
the review matters between:-
THE
STATE
and
WILLIAM
MOFOKENG
SELLO
SIMON DHLAMINI
and
THE
STATE
and
THABANG
VINCENT QHEKOANE
_____________________________________________________
CORAM:
HATTINGH
J
et
VAN
ZYL J
_____________________________________________________
JUDGEMENT
BY:
VAN
ZYL J
_____________________________________________________
DELIVERED
ON:
16
MARCH 2006
_____________________________________________________
[1] Both these review
matters originate from the magistrate’s court for the district of
Witsieshoek, held at Makoane. For the sake
of efficacy, they are
simultaneously dealt with in one judgement. In the first matter the
two accused were charged with one count
of robbery of R200,00. Both
accused pleaded not guilty, but were subsequently convicted on 7
February 2005 and sentenced to a fine
of R2 000,00 or 12 (twelve)
months imprisonment. In the second matter the 22-year old accused was
charged with one count of robbery
of a cellphone and other articles.
He pleaded not guilty, but was subsequently convicted on 9 February
2005 and sentenced to a fine
of R2 000,00 or 12 (twelve) months
imprisonment.
[2] Both
matters were then referred to this Court in the cause of an automatic
review. Although the sentences were passed on 7 February
2005 and 9
February 2005 respectively, the typed record in both matters reflect
that the records were only certified on 11 January
2006, whilst the
letter that accompanied both records (to which letter I will refer
again shortly) is dated 27 December 2005. However,
this Court only
received the two records on 8 March 2006.
[3] A
similar letter is attached to both records, being a letter from Ms A.
Pieterse, the magistrate who presided over this matter.
Both these
letters read as follows:
“
1. This case … could not be sent
on review, because apparently the machine or old tapes (‘re-used’),
were defective and no recordings
were made.
2. I
am unable to reconstruct these cases from my bench-notes, because a
couple of months ago there was a ‘break-in’ into my office
during
the night and all my bench-notes and several other documents and
personal notes were stolen.
3. I
trust that ‘on the face of it’, the honourable Judges will be
able to compare the charge, plea and sentence and find it in
order.
4. I
can just add that in this case, no appeal was lodged.”
[4] When the records are
perused, it is evident that both the records are incomplete in that
they lack essential parts of the respective
proceedings. The records
reflect the notes of the magistrate pertaining to appearances and
postponements prior to the pleading process.
From the stage when the
accused actually pleaded up until the imposition of sentence, the
records only reflect that the proceedings
were mechanically recorded.
No transcripts of the said recordings are attached to the record;
obviously due to the fact that, as
stated in the letter, no such
recordings exist. The only information with regard to the respective
trials which is evident from
the records, is the information
reflected on the J15 charge sheets, namely, that the accused pleaded
not guilty on 7 February 2005
and 9 February 2005 respectively, that
they were found guilty as charged on the said dates and that they
were sentenced to the aforesaid
sentences. There is no record of any
evidence, cross-examination, reasons for the judgment (if any),
previous convictions of the
accused (if any) and possible mitigating
and aggravating factors considered before imposing sentence.
[5] Considering
what has been stated in the letter by the magistrate, it will serve
no purpose to send these matters back to the clerk
of the court with
an instruction that the records should be reconstructed. It is clear
that it is impossible to reconstruct the
records. This fact, as well
as the long period of time which has already lapsed since the
respective dates of the convictions and
sentences, necessitate me to
be of the opinion that the accused will be prejudiced should this
judgment not be handed down forthwith
in terms of section 304(2)(a)
of the Criminal Procedure Act, Act 51 of 1977, without first
referring the matters back to the magistrate’s
court.
[6] In
an instance like this, where a matter is subject to automatic review
and the record cannot be reconstructed, the conviction
and sentence
must be set aside. (See
S
v FREDERICKS
1992 (1) SACR 561
(C).) This is also the position in criminal
appeals where the record is defective and in which instances the
following test is applied:
“
Die
notule moet slegs ‘n wesenlike weergawe wees van die verrigtinge.
... Die toets bly, is die notule wesenlik korrek en volledig.
Die
vraag of die notule wesentlik korrek en volledig is, moet beoordeel
word in die konteks van die betrokke geval en nie in
vacuo
nie.”
(See
S
v S
1995 (2) SACR 420
(T) at 423 D – E.)
[7] There
is no reason why a similar test should not apply to an automatic
review. When the aforesaid test is applied to the current
matters,
it is evident that the records lack material evidence to the extent
that this Court cannot adequately review the respective
convictions
and sentences. They should therefore be set aside. (See
S
v BOOYSEN
1996 (2) SACR 393
(OK) at 395 E.)
[8] In
addition to the aforesaid, I am also of the view that considering the
severe extent to which the time limit provided for in
section 303 of
the Criminal Procedure Act was not observed, a serious miscarriage of
justice has been caused to the accused. This
should in any event
result in the setting aside of the respective convictions and
sentences. (See
S
v LEWIES
1998 (1) SACR 101
(C) at 103 G – 104 C and
S
v MALULEKE
2004 (2) SACR 577
(T) at 581 C – 582 I.)
[9] In
the premises the following order is made:
The convictions and
sentences are set aside.
__________
C. VAN ZYL, J
I
concur.
_______________
G.A. HATTINGH, J
/sp