S v Viljoen (CAR&68/2006) [2006] ZANCHC 117 (29 September 2006)

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[2006] ZANCHC 117
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S v Viljoen (CAR&68/2006) [2006] ZANCHC 117 (29 September 2006)

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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
Case
No: CAR& 68/2006
Heard:
21/09/2006
Delivered:
29/09/2006
In
the matter:
PIETER
VILJOEN Applicant
and
THE
STATE Respondent
Coram:
Tlaletsi
AJP
et
Mokgohloa AJ
JUDGMENT
ON APPEAL
Tlaletsi
AJP:
The applicant appeared
legally represented before the Magistrate Court at Hanover on a
charge of Assault. He was on 29 September
2005 convicted as charged
and sentenced to R 500-00 fine or 50 days imprisonment, plus a
further 90 days imprisonment which is
wholly suspended for a period
of 4 years on condition that he is not convicted of assault or
attempt thereto or any other offence
having assault as an element
thereof, committed during the period of suspension and to which he
is sentenced to direct imprisonment
without the option of a fine.
He is appealing against his conviction only.
According to the
documents on the file the Notice of Appeal was received by the Clerk
of the Court on 19 October 2005. This is
according to the date
stamp reflected on the notice itself and what the appellant alleges
in his affidavit in support for an application
for condonation for
late filing of the application. Of note however, is that the Notice
of Appeal itself is dated 20 October 2005,
being a day later than
the day on which it was received by the Clerk of the Court. Of
further note is that the 19
th
was in fact the last day for filing a Notice of Appeal in terms of
Section 309B (1)(b) of the
Criminal
Procedure Act 51 of 1977
(“the Act”) and subrule (1) of the Magistrate’s Court Rule 67.
Nevertheless the condonation was granted by the Magistrate.
The application for
leave to appeal was heard on 2 February 2006. In his one paragraph
(5 lines) judgment the trial Magistrate
stated that seeing that he
is of the opinion that every person has a right to appeal and that a
possibility that another court
may possibly arrive at a different
conclusion cannot be excluded, granted the applicant Leave to
appeal.
The record of the
proceedings that has been filed is incomplete. It contains the
charge sheet and the mechanically recorded transcript
only contain
the cross-examination of the appellant by the prosecutor, arguments
of both the state and the accused’s legal representatives,
the
judgment on the merits by the court, arguments by the parties
regarding sentence, the judgment or reasons for sentence by the
magistrate as well as the proceedings relating to the application
for leave to appeal. The missing portions are the plea proceedings,
evidence in chief and the cross-examination of the complainant and
two state witnesses, as well as the evidence in chief of the
appellant and part of his cross-examination by the state.
Accompanying the
record is a memorandum from the trial Magistrate with a heading
“Redes vir Skuldigbevinding en Vonnis”. In
the memorandum he
explains that during the hearing of the application for leave to
appeal he noticed that the cassette tapes were
missing from the
envelope used for keeping them. After the application for leave to
appeal was disposed of the enquired from the
Office of the Court
Manager about the whereabouts of the tapes. The latter undertook to
make enquiries from the Clerk of the Court
who was at the time on
leave. Upon receipt of the typed record, he continues, he noticed
that the only one tape has been transcribed.
He also refers to the
affidavits of the Manager and the Clerk of the Court stating that
they do not know about the whereabouts
of the other tape.
The trial Magistrate
further states that he is fully aware of the legal requirements
relating to reconstruction of the record that
is lost and that he is
unable to reconstruct the record because of the following reasons,
and I quote:
“
1) Die
Hof doen drie howe, naamlik Hanover, Petrusville en Philipstown
waartydens die Hof verskeie sake per dag afhandel;
Dus is dit baie
moeilik on na die verloop van verskeie maande sedert die datum van
verhoor van die saak op 29 September 2005 en
die ontvangs van die
getikte oorkonde 27 Maart 2006 die feite van die saak te onthou;
Veral wat betref
die kruisverhoor van die onderskeie getuies deur die verdediging is
dit basies onmoontlik;
Weens die lang verloop van tyd
is die Hof se kriptiese aantekeninge ook nie meer beskisbaar nie.
Weens die aard daarvan sout dit
in elk geval nie van veel nut gewees
het nie.
Die Aanklaer wat destyds
aangekla het, Mnr A.R. White is ook intussen verplaas en kan dus die
Hof ook nie behulpsaam wees nie.
Gevolglik is dit nodeloos vir die
Hof om enigsins redes vir skuldigbevinding en vonnis te gee aangesien
die volledige oorkonde nie
beskikbaar is weens die nalatigheid van
die administratiewe personeel van die Landdroskantoor, Hanover nie.
Gevolglik versoek die
Hof respekvol dat die Agbare Appèlregter die
skuldigbevinding en vonnis sonder meer ter syde stel.”
The grounds of appeal
prepared by the appelalnt’s legal representative who appeared for
the appellant at the trial are:
“
1. Die Hof a quo
het fouteer te bevind dat Appellant die beskuldigde aangerand het,
soos aangekla.
Die Hof a quo het
fouteer deur te bevind dat die getuies vir die staat geloofwaardig
is.
Die Hof a quo het
fouteer deur die beskuldigde se weergawe te verwerp.
Die Hof a quo het
fouteer deur nie die getuienis van die staatsgetuies te verwerp nie.
Die Hof a quo het
fouteer deur nie te bevind dat die beskuldigde se weergawe redelik
moontlik waar is nie.
Die Hof a quo het fouteer deur
te bevind dat die staat sy saak bo redelike twyfel bewys het.”
This is the Notice in
terms of Section 309B of the Act which I have already mentioned that
is dated on 20 October 2005 at Middelburg
(Cape) and served on 19
October 2005.
The legal position
regarding the record of the proceedings was crisply stated as
follows in
S
v Chabedi
2005(1) SACR 415 (SCA) at 417e – h:
“
On
appeal, the record of the proceedings in the trial court is of
cardinal importance. After all, that record forms the whole basis
of
the rehearing by the Court of appeal. If the record is inadequate for
a proper consideration of the appeal, it will, as a rule,
lead to the
conviction and sentence being set aside. However, the requirement is
that the record must be adequate for proper consideration
of the
appeal; not that it must be a perfect recordal of everything that was
said at the trial. As has been pointed out in previous
cases, records
of proceedings are often still kept by hand, in which event a
verbatim record is impossible (see, eg,
S
v Collier
1976 (2)
SA 378
(C) at 379A - D and
S
v
S
1995 (2) SACR 420
(T) at 423b - f).
The
question whether defects in a record are so serious that a proper
consideration of the appeal is not possible, cannot be answered
in
the abstract. It depends, inter alia, on the nature of the defects in
the particular record and on the nature of the issues to
be decided
on appeal.”
Before dealing with the
question whether there is sufficient material before us to determine
the issues raised by the appellant as
his grounds of appeal, I need
to consider whether proper steps have been taken to reconstruct the
record.
The memorandum
prepared by the Magistrate is in my view a statement of the problem
that may be encountered should there be an attempt
to reconstruct
the record. It in no way reflect any attempt by the Magistrate or
the Clerk of the Court to initiate the process
of reconstruction.
It may be accepted that steps were taken to trace the missing tape
and bore no fruits. However, in my view
the matter does not end
there.
In
casu
,
the appellant was legally represented at his trial. It is not known
what role did his legal representative play to assist the
reconstruction process. Surely one would have expected him to have
made at least a note of the evidence in chief of the state
witnesses
and cross examination of the appellant. Mr Schreuder who appeared
on behalf of the appellant before us, was unable to
indicate to us
the attempts if any, that have been made by the trial attorney to
assist in reconstruction. He is in any case an
important party in
the reconstruction of the record, and without his views and those of
his clients the process will be questionable.
It is also clear from
the memorandum that no attempts have been made to request the trial
prosecutor to contribute to the reconstruction
process. All that
has been said about him is that he has since been transferred and as
a result he will not be in a position to
help the reconstruction
process. In the absence of his express confirmation that he cannot
recall what transpired during that
trial, it will be premature to
conclude that he will not be of any assistance. It is not in
dispute that only three witnesses
testified for the state and that
the appellant called no witnesses other than his own testimony. The
whereabouts of these witnesses
is not canvassed in the memorandum.
It is also not known if the police docket is still available with
statements of the witnesses
which can be a helpful tool in the
reconstruction process.
I am therefore not
satisfied that attempts have been made to reconstruct the record. It
would therefore in my view be improper to
at this stage endeavor to
transverse the merits of the appeal and decide whether there is
sufficient material, to decide the appeal.
The grounds of appeal
are set out in general and vague terms. No particulars have been
provided of the complaints the appellant
has against the judgment of
the Magistrate. In his judgment he has given reasons why he has
accepted the version of the state
witnesses and rejected the
appellant’s version. The recorded argument by the state and the
defence give an indication of the
issues that were highlighted at
the trial.
It would at this stage
be pre-mature to decide whether there is sufficient material before
court. This will be the task of the
eventual court of appeal after
a genuine process of reconstruction. A person who has been
convicted and sentenced has a right
to approach an appellate Court
to prosecute his or her appeal and is entitled to have this right
protected. On the other hand
victims of crime have a right to have
their complaints duly adjudicated. It would not be fair to alleged
victims of crime and
the society to have an appeal of someone
convicted by a competent court succeeding on grounds unrelated to
cogency of evidence.
A conviction by the court a quo is neither
provisional nor conditional upon a higher court concluding that it
was in order. See:
S
v Zondi
2003(2) SACR 227 (W) at 240i-j. I would therefore be inclined to
order that the matter be referred back to the clerk the court
with
the instruction that she or he obtain the best secondary evidence of
the contents of the tape lost which was part of the record.
This
view was supported by Mr Bagananeng on behalf of the respondent,
although it was not raised in his Heads of Argument. I
do not
therefore, accept the contention on behalf of the appellant that
“maybe,
attempts were made but were unsuccessful.”
The contention is in my view speculative.
In the result I make
the following order
:
The Appeal is
postponed sine die.
The matter is
referred back to the Clerk of the Court, Hanover, with the
instruction that she or he obtain the best secondary
evidence of
the contents of the lost part of the record
.
________________________
L
P TLALETSI
ACTING
JUDGE PRESIDENT
NORTHERN
CAPE DIVISION
I
concur
________________________
F
E MOKGOHLOA
ACTING
JUDGE
NORTHERN
CAPE DIVISION
For
the Applicant: Adv J J Schreuder
Instructed
by: Du Toit – Bomela Attorneys
For
the Respondent: Adv W Bagananeng
Instructed
by: Director of Public Prosecutions