Talenyane v S (A280/2004) [2005] ZAFSHC 9; 2006 (2) SACR 153 (O) (8 September 2005)

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[2005] ZAFSHC 9
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Talenyane v S (A280/2004) [2005] ZAFSHC 9; 2006 (2) SACR 153 (O) (8 September 2005)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case
No.: A280/2004
In the case between:
PAULUS TALENYANE
and
THE STATE
CORAM:
HATTINGH, J
et
MOLEMELA, AJ
JUDGEMENT:
MOLEMELA, AJ
_____________________________________________________
DELIVERED ON:
8 SEPTEMBER 2005
_____________________________________________________
[1] This is an appeal
against conviction and sentence. The appellant appeared at the
Kroonstad Magistrate’s Court before Mr WF Viljoen
on two
contraventions of the provisions of the Arms and Ammunition Act 75 of
1969, to wit unlawful possession of a firearm and ammunition,
respectively. On the 3
rd
June 2003 he was found guilty on
both charges. On the 8
th
September 2003 he was sentenced
to 30 months’ imprisonment. The charges were taken together for
purposes of sentence.
[2] Attached to the
transcript of the record was a letter received from the trial
magistrate, dated 16 August 2004. In this letter
he explained that
the proceedings had been mechanically recorded on two cassettes but
that one cassette had disappeared without trace,
resulting in only
one cassette being transcribed. He further indicated that he was
unable to re-construct the record due to that
fact he was no longer
in possession of what he called his “kern aantekeninge”. He
mentioned further that “ ‘n tydperk van
9 maande het verloop
voordat die getranskribeerde notule aan my getoon is”.
[3] The transcribed
portion of the record consists of only a part of the magistrate’s
judgment. The rest of the record is missing.
Both the appellant and
the respondent have, in their heads of argument, submitted that under
the circumstances, the conviction and
sentence ought to be set aside.
[4] Counsel for the
parties referred me to the following authorities, viz
4.1 S v Chabedi, 2005 (1)
SASV 415 HHA
4.2 S v Peza,
1962 (1)
SA 664
O
4.3 S v Leslie, 2000 (1)
SASV 347 W
4.4 Du Toit
et al
: Commentary on the Criminal Procedure Act : p30- 34.
4.5 Hiemstra : Suid
Afikaanse Strafproses, 6
th
Ed p827-828.
[5] In S v Chabedi
(supra),
the transcribed record was such that questions posed
and comments made by the magistrate during the course of the hearing
were not
reflected in it due to the fact that the magistrate’s
microphone had not been in proper working order. These gaps in the
recording
were reflected as “inaudible” in the record. The
“inaudible” consequently became more prevalent in the judgment
part of the
transcript, resulting in significant parts of the
judgment being incomprehensible.
[6] On page 417[5f-h],
the court stated the following:
“
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 re-hearing 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.
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.”
[7] On the basis of the
above principle, the court held that the contents of the “inaudibles”
in the judgments could be decided
on inherent probabilities which
could easily be inferred from what was contained in the record.
[8] In S v Peza (
supra
),
certain of the evidence recorded by a tape recording machine did not
appear in the transcript of the record due to the fact that
the
machine had failed to record. The appeal court remitted the
incomplete record to the magistrate with an order to re-call and
re-hear the accused and witnesses that had testified in order to have
that part of the evidence that was not recorded heard and placed
on
record. The court also directed the magistrate to report to the
appeal court, upon submission of the record, whether the evidence
subsequently recorded was to the best of his knowledge the same as
that previously given.
[9] In S v Leslie (
supra
at 355b-j), the tapes that had recorded the proceedings had gone
missing, resulting in the failure to create a transcribed record.
The
magistrate had already destroyed the notes that he had made during
the proceedings and could also not recall the evidence that
was
adduced. The court held that insufficient steps had been taken to
reconstruct the record and accordingly referred the matter
back to
the clerk of the court with the instruction to obtain secondary
evidence of the contents of the lost record. In deciding
this matter,
the court listed a number of sources from which information
pertaining to what was said or testified in the hearing
could be
found if the record was incomplete or lost. These were listed as
follows:
“
11.1 Inferences can be made from
the context. An available answer may adequately reveal what a missing
question was. S v Whitney (
supra
at 456A-B)
11.2 Important information can be
gleaned from the magistrate’s judgments on conviction and sentence.
If the magistrate recites
the evidence and continues to say, as in
the case, that the defense argued that there were four
improbabilities affecting the evidence
of a particular witness, which
probabilities he then discusses, that can be an adequate foundation
(in accordance with ordinary logic),
to eliminate fear of an
injustice which hinges on the groundless hope that a further
improbability may perhaps be extracted from
a complete record. In the
present case there is no suggestion of any desire to argue that there
was a fifth improbability. It is
so that it is often possible to deal
with a suggested improbability without reliance upon the detail of
the evidence. Such can adequately
be considered even if the full
evidence cannot be reconstructed.
11.3 If the magistrate’s discussion
of the evidence and the cross examination of a witness were fairly
detailed in the judgment
and the grounds of appeal which were
formulated while the memory of the draftsman was fairly fresh does
not raise a complaint about
any conflict in the evidence of the
witness, it justifies rating an idle speculation to reason that
possibly there was after all
just perhaps some
self
–contradiction.
It can therefore allay fear of injustice if the
attorney who defended the appellant so soon after the judgment failed
to mention
any specific contradiction in the evidence of a State
witness or between two State witnesses in the grounds of appeal.
11.4 The grounds of appeal
are
indicative of what the task f the Court will be on appeal. If the
grounds of appeal raise only the complaint that the appellant’s
evidence was wrongly criticized as improbable, it is not unfair to
draw the inference that the interests of justice do not require
the
postulation by the Court of speculative possibilities of
unsatisfactory features in the evidence of the State witnesses –
and
then regard that as a basis for interference despite the grounds
of appeal never having mentioned such. S v Collier (
supra
at
379C-D).
11.5 Evidence by or on behalf of the
appellant can provide a basis for regarding a specific portion of the
evidence as material. Cf
S v S (
supra
at 424d-e). The absence
of any such claim and some proof thereof must not be ignored. Cf S v
Collier (
supr
a at 378H).
11.6 A court will also assess the
importance of the evaluation of credibility and the complexity
thereof relative to an issue which
has been raised and the importance
of that issue.”
[10] In the instant case,
it is clear from the contents of the magistrate’s letter that he
cannot recall what transpired in the
matter. I cannot blame him for
not having an accurate recollection of what transpired during the
proceedings, for it is indeed so
that the lapse of time is “the
enemy of accuracy in human memory” (see S v Leslie (
supra
at
353i). If he could not remember as on the 16
th
August
2004, would he be in a position to do so if so directed by this court
at this stage, more than a year from the date of his
letter? In my
view, the answer is clearly in the negative. If he cannot remember,
surely he will not be in a position to report whether
the evidence
subsequently recorded was the same as previously given.
[11] I have no doubt in
my mind that where a magistrate has conceded to having forgotten what
transpired in a case and the available
record does not cover any of
the evidence that was adduced, such a record cannot be successfully
reconstructed. There would therefore
be no point in following S v
Peza (
supra)
or S v Leslie (
supra
) in the instant case.
Having applied the test of “adequacy” as laid out in S v Chabedi
(supra)
, I therefore find that the record is inadequate for a
proper consideration of the appeal.
[12] A further point for
consideration is the misgivings regarding conviction as expressed by
the magistrate in his afore-mentioned
letter. He mentioned that
“
dit het verder aan die lig gekom
dat die staat moes bewys het dat die vuurwapen voldoen het aan die
nuwe omskrywing van n’ vuurwapen
soos uiteengesit is in die nuwe
Wet op Vuurwapens…. Gevolglik word die verdediging toegegee op die
appélgrond.”
Counsel for the
respondent correctly argued that the magistrate’s view was
erroneous as the said act had not yet come into operation
as at the
time of the commission of the offence. Nevertheless, my view is that
where there is no record of the evidence whatsoever,
misgivings
expressed by the magistrate regarding conviction, even though based
on an erroneous premise, cannot simply be ignored.
I am of the view
that the appeal ought to succeed even on that basis alone.
For these reasons I make
the following order:
(a) The appeal against
the conviction and sentence succeeds.
(b) The conviction of
the accused and the sentence imposed are hereby set aside.
________________
M.
MOLEMELA, AJ
I
agree.
________________
G.A.
HATTINGH, J
On behalf of
applicant: Adv. T.B. van Rensburg
Instructed by:
Legal Aid
BLOEMFONTEIN
On behalf of The
State: Adv. V. de Bruyn
Instructed by:
The State Attorney
BLOEMFONTEIN