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[1990] ZASCA 113
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S v Joubert (221/89) [1990] ZASCA 113; 1991 (1) SA 119 (AD); [1991] 1 All SA 290 (A) (28 September 1990)
221/89
/mb
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between:
DANIEL J J JOUBERT
APPELLANT
and
THE STATE
RESPONDENT
CORAM
: JOUBERT, SMALBERGER, MILNE, KUMLEBEN
JJA et NIENABER AJA
HEARD
: 14 SEPTEMBER 1990
DELIVERED
: 28 SEPTEMBER 1990
JUDGMENT
KUMLEBEN JA:
/..
1.
KUMLEBEN JA
:
On 18 November 1985 the appellant, having pleaded guilty, was convicted in
the regional court at Heidelberg cm three counts of theft.
He was sentenced to
three years' imprisonment on each count, with a partial suspension of the
sentence in the case of two of them.
He was unrepresented at the trial. After
conviction members of his family engaged an attorney, Mr P van der Meer, to
investigate
the prospects of an appeal and the grant of bail pending such. He in
turn instructed Mr Hellens, an advocate of Johannesburg.
Counsel went with the appellant to the
court at Heidelberg and listened to a tape recording of
the proceedings.
It included the guestioning in
terms of sec 112(1)(b) of the Criminal Procedure
Act 51 of 1977 in regard to his plea of
2/...
2.
guilty and what he had said in mitigation of sentence.
Counsel considered
that this "evidence" indicated that
the appellant suffered from some "psychological or
psychiatric problem"
and that in the circumstances the
presiding magistrate, Mr Fourie, at some
stage of the
proceedings (it is not clear whether before conviction
or
before sentence) ought to have directed an enquiry
in terms of s 77(1) or s
78(2), or both, of the Act.
His failure to do so, in counsel's view, amounted
to an
irregularity. Counsel there and then wrote out a
detailed notice of
appeal, relying upon the alleged
irregularity or misdirection, and the
appellant signed
the notice. (The urgency for noting an appeal was no
doubt to enable the
appellant to make what turned out
to be a successful application for bail.)
No copy of
this notice of appeal was made since it was anticipated
that it, or rather a typed copy of it, would in due
course form part of the record on appeal. The facts
3/...
3. set out in this paragraph, which are not disputed, are included
in the "Heads of Argument" of counsel and an affidavit of Mr Shapiro,
who had
replaced van der Meer as the appellant's attorney. (I shall refer to both these
documents in more detail later in this judgment.)
The further sequence of events is not
all that clear
from the papers before us. On
16 September 1987 another magistrate at
Heidelberg, Mr
du Toit, wrote a letter to the Registrar of the
Supreme
Court, Pretoria. In it the writer said that
the record of the case had been sent to the "Appeals
Clerk" in
Johannesburg and was subsequently lost
without trace; that there had been no
response to the
writer's request to the appellant's attorney to produce
a
reconstructed notice of appeal and a power of
attorney to prosecute an
appeal; and that the
available documents (without specifying them) were
4/...
4. enclosed in order that the appeal could be disposed of. The
matter had lain dormant for almost two years. Reading between the lines
it would
seem that du Toit was anxious to bring the matter to finality but that the
appellant did not share his concern in this regard.
The appeal was set down to be heard on
8 February 1988. This apparently prompted Shapiro to
lodge the necessary
power of attorney to act for the
appellant in the appeal and to address the
question of
the lost record. On 8 January 1988 Shapiro gave notice
that at
the hearing of the appeal application would
first be made for an order that
the lost record be
reconstructed by way of the best secondary
evidence;
alternatively, that the conviction and sentence be set
aside and
remitted for re-trial; or alternatively, that
the appeal be adjoufned. In support of this
application Shapiro filed a short affidavit in which,
5/...
5. since he was not awa re of what had taken place at the trial, he
simply referred to Hellens's "Heads of Argument" which counsel
had prepared for
the hearing of the application. In fact the title to this document was a
misnomer. These "Heads of Argument" were
largely A recital of facts. Thus in
them it was said
inter alia
:
"Due to the lapse of time counsel who has listened to the record cannot recall
the specific details of what was ref lected as having
been said at the trial by
the appellant in this regard but it was his view that what was said was
sufficient to have alerted the
magistrate to the possible need to apply a
provisional" (this should presumably read 'the provisions of') "Chapter 13 of
the Act.
Indeed reference to the brief notes of the magistrate which form part
of the record before this Court reflect some reference to the
appellant's having
received psychiatric treatment. (Record p 6). Counsel's memory is (although he
cannot be more specific) that there
was significantly more said in this regard
by the appellant than the brief sentence reflected on
page 6 of the record
Counsel's memory
of the specific psychological or psychiatric
6/...
6.
problem which manifested itself from the evidence that was led is vague but
either from the record or from consultation at the time
of the application for
bail pending appeal which was held with the appellant at the time that the
application for bail was moved
or from both, the appellant had said that he suf
f ered f rom persistent headaches and disorientation. The appellant was addicted
either physically or psychologically to the habitual use of extremely excessive
quantities of aspirin (Grandpa Headache Powders)
taken with beer in excessive
quantities (Carling Black Label). The appellant appeared simple, lacking in
perception as to what was
occurring, twitchy, fidgety and definitely in need of
some kind of medical or psychological
care."
Although the application was principally
aimed at
the production of a (reconstructed)
record, the merits of the appeal were to
an extent
canvassed in these "Heads of Argument". This may have
been done
for the reason that, if an appeal had no
prospect of success on counsel's
recollection of the
proceedings based on his listening to the mechanical
recording, an order for the reconstruction of the
record might not have been granted on the ground that
7/...
7. it would serve no purpose. Be that as it may, the "Heads of
Argument" did finally deal with the most pertinent issue, namely, the
steps to
be taken when a record is irretrievably lost.
The application was opposed. In his
replying
affidavit, dated 22 January 1988, Fourie said
that during the trial nothing
was said by the appellant
which suggested to him that his (the
appellant's)
mental faculties were in any way impaired. Had there
been any
such indication, he would have set in motion
the necessary enquiry in terms
of the said sections of
the Act. Heads of Argument were also submitted on
behalf of the
respondent. In substance they alleged
that any further attempts to reconstruct the record
would prove futile and
that therefore the magistrate's
account of what took place, and his impression of the
appellant's mental
condition, should prevail.
8/...
8. On 8 February 1988 the application was heard by the court of
appeal in
limine
and the principal relief sought was granted. The last
three paragraphs of the judgment (per van der Merwe J with Goldstein J
concurring),
and the order made, read as follows:
"It now appears that the tape recordings of the proceedings are lost. Annexed to
the papers is, inter alia, a note from the magistráte
setting out his
endeavours to reconstruct the record. I also need not go into further detail
regarding that letter.
It appears from the submissions made by counsel that it may very well be an
impossible task to compile a reconstructed record, but
it is also clear that
there had not been proper compliance with the procedure as set out in the
judgment in the case of
S v Wolmarans
1942 TPD 279.
In spite of the
difficulties that may be encountered in reconstructing the record, it appears
that counsel are ad idem that at least
that effort should be made.
I am of the opinion that an order should be granted in terms of prayers 1, 2 and
3 of the notice of motion, prayer l(b) to be amended
as will appear
hereinafter.
0 R D E R
9/...
9. The order is therefore as follows:-
1. The matter is referred to the Clerk of the
Regional Court, Heidelberg,
with the
direction that he gathers together the best
secondary evidence as
to the contents of the
record, including affidavits from
-
(a) an official who can say that the record has been mislaid;
(b) from witnesses and others who were present or who have knowledge of what
transpired at the trial, to show what the content was
of the evidence led and
the proceedings that took place as well as the plea and the further
proceedings.
2. That he submits such reconstructed record and affidavits to the
appellant/applicant and his legal representatives, to obtain from
them their
consent, that the record has been correctly reconstructed.
3. That the appellant/applicant makes an affidavit as to the corréctness
or otherwise of the reconstructed record."
(I shall
for convenience refer to this order as the
"reconstruction order".)
The decision referred to is that of
Rex v Wolmarans and
10/...
10.
Another
1942 T.P.D. 279.
The accused in that case had
pleaded guilty and the record, which was to have been submitted for automatic
review, was lost. In deciding
on the procedure to be followed in the light of
this fact, the court approved at page 283 of what the Attorney-General had said
in
his report, which was as follows:
"' It is the duty of the magistrate' s clerk to transmit the record for review
under sec. 94 of Act 32 of 1917. In this case it is
said that he cannot do so
because the record is lost. If the reviewing Court is satisfied that that is so,
it will require him to
submit secondary proof of the contents of the lost
record. I think that reference to 'a rehearing' should be avoided, because
however
convenient it may be to attempt to reconstruct the lost record by
simulating a rehearing it remains the duty of the clerk of the
court to place
before the reviewing Judge the best secondary evidence he can of the contents of
the original record. He cannot subpoena
the witnesses nor compel the accused to
attend, but he can approach the witnesses and others who were present at the
trial, to obtain
from them on affidavit proof of what the record contained, and
he should in equity give the accused and the Crown an opportunity
to peruse his
proof and submit their
11/...
11.
version for transmission to the Supreme Court.'"
The order made
by van der Merwe J was, as the judgment indicates, based on the one granted in
this earlier decision. With the exception
of the Orange Free State Provincial
Division, this has been the approach in the case of a lost record in most, if
not all, the other
Divisions of the Supreme Court: See
S v Mankaji en
Andere
1974(4) S.A. 113(T) 115 F;
S v Whitney and Another
1975(3)
S.A. 453(N) 455 F - G;
S v Stevens
1981(1) S.A. 864(C);
S v Quali
1989(2) S.A. 581(E); sed
contra S v Van Wyngaardt
1965(2) S.A.
319(0).
The order of court granted as a result of the application was explicit and
one may have supposed that there would have been strict
compliance with its
terms.
12/...
12. This was not to be.
In response to the reconstruction order, Fourie made an affidavit, dated 14
March 1988, in which he reiterated certain facts, viz:
that the appellant was
unrepresented; that no evidence was led; that the questioning established that
he intended to plead guilty
and was in fact guilty; and that the record was
lost. He concluded by saying:
"ek (het) die saakrekord gerekonstrueer soos blyk uit die aangehegte stuk wat ek
toe opgestel het en wat ek hiermee bevestig en as
deel van hierdie verklaring
insluit."
In the bound volume of the record lodged for the
present appeal this affidavit is followed by a number of documents which are
intended
to constitute the reconstructed record. They are:
(i) A reconstructed charge sheet with annexures.
13/...
13. (ii) An undated statement by Fourie.
This is the "aangehegte stuk" referred to in Fourie's affidavit and is
apparently the document on which the "brief notes", mentioned
in the "Heads of
Argument", are recorded. Since the "Heads of Argument" were drawn up before the
application was heard and were intended
to be used at that hearing, one may
infer that this undated statement by Fourie was before the court when the
application was argued.
Be that as it may, it reads as follows:
"Uit die ondervraging ingevolge die bepalings van Artikel 112 van die
Strafproseswet blyk dit dat:-
(1) Beskuldigde die datums en plekke vermeld in die onderskeie aanklagte
erken.
(2) In die geval van aanklag 1 beweer beskuldigde dat hy 'n motorvoertuig langs
die snelweg opgemerk het. Hy aanvaar dat dit die
eiendom was van die klaer in
die saak, mnr Cook. Hy het die voertuig geneem en vir homself reggemaak. Hy
erken dat hy geen reg daartoe
gehad het nie en dat wat hy gedoen
het
14/...
14. diefstal was.
(3) In die geval van aanklag nr 11 hy 'n groen Granada motorvoertuig, wat hy
aanvaar die eiendom van ene S W Le Roux was, vir homself
geneem het en dat hy
geen reg daartoe gehad het nie.
(4) In die geval van aanklag nr III hy 'n Cortina Ghia 2 liter, wat hy aanvaar
die eiendom van ene Jacob Mgadi was, vir homself geneem
het en dat hy geen reg
daartoe gehad het nie.
Die hof is tevrede dat hy die áard
van die
aanklagte begryp het, dat hy bedoel het om skuldig
te pleit en dat
hy skuldig was soos aangekla en is
hy derhalwe op die drie hoofaanklagte
skuldig
bevind.
VONNIS:
Beskuldigde is 35 jaar oud en het geen
vorige
veroordelings nie. Hy sê hy het gedurende 1981 'n
Granada
voertuig gehad maar dit is gesteel nadat
hy dit slegs 24 uur lank gehad het.
Terwyl hy op
pad was het hy 'n Granada langs die pad sien staan.
Hy
hêt die motor genêem en dit reggemaak en vir
homself
gehou.
Ten tye van die verhoor het hy gewerk teen R230,00
netto per week.
Hy het 2 kinders. Op skool het
std VI geslaag en het geen verdere opleiding
gehad
nie.
Op 'n stadium het hy psigiatriese behandeling
ontvang. Hy
het al drie motors geneem, dit
opgebou en gehou. Met onder andere
hierdie
besonderhede as agtergrond is beskuldigde gevonnis
soos blyk uit die meegaande gerekonstrueerde
15/...
15.
klagstaat. 'n Ligafdruk van die gevangesettingslasbrief gaan ook saam.
(Get.)
P J FOURIE
STREEKLANDDROS"
(iii) Copies of a committal warrant and an extract from a register together with
no less than eleven letters.
None of these documents
contributes in any way towards
recohstructing the record. For some strange reason it
was thought fit to
place all this irrelevant matter
before court in the response to the
reconstruction
order.
(iv) Finally, a further affidavit made by Fourie, dated 22 April 1988, in
which he declares that:
"Op 18.11.85 tydens die verhoor van ene D J J Joubert in Saak Nr SH 259/85
het ek as voorsittende beampte opgetree. By 'n latere geleentheid
is ek versoek
om behulpsaam te wees met die rekonstruksie van die notule van verrigtinge
aangesien die oorspronklike stukke nie beskikbaar
was nie. Ek het in 'n
beëdigde verklaring
'n weergawe
16/...
16.
gegee van die gebeure soos ek dit bekom het vanuit die notas wat ek ten tye
van die verhoor gehou het en wat toe nog beskikbaar was.
Ek is snelskrif magtig
en hou volledige
verbatim
notas van wat gesê word sover ek dit
dienstig ag. Aangesien sodanige notas slegs vir 'n beperkte tyd gehou word,
beskik ek
tans nie meer daaroor nie." (The first italics are mine.)
This affidavit, it would seem, explains how he was able
to state the facts in (ii) above, although that
document is an undated statement and
not
an affidavit
as
alleged.
Had the matter followed its proper course the relevant matter, (i), (ii) and
(iv) above, contributing to, or forming, the reconstructed
record - from the
compiler's point of view - ought to have been submitted to the appellant and his
legal representatives for their
consent as envisaged in paragraph 2 of the order
or, alternatively, for them to
17/...
17. have had an opportunity of responding in terms of paragraph 3
of the order.
Instead, on or about 19 April 1988, Shapiro received a notice of set down of
the appeal for hearing on 13 June 1988. Both Hellens
and Shapiro reacted to this
notice. Counsel submitted further heads of argument (in the true sense) dated 5
May 1988 and, for the
first time, an
affidavit
dated 19 May 1988. Shapiro
furnished a further affidavit dated 20 May 1988. The new allegations of
significance in these three documents
can be thus summarised. Hellens in his
affidavit, after confirming on oath the factual allegations in his earlier
"Heads of Arguments",
alleged
"that the record of the proceedings as reconstructed and as it appears in the
above Honourable Court's file, is by no means complete
and that significantly
more was said during the
18/...
18. hearing than appears in the reconstructed record."
Counsel in
his heads of argument, restricting them to the question of the lost record,
submitted that the efforts to place a reconstructed
one before court had failed
and that in the circumstances the convictions and sentences ought to be set
aside. Shapiro expressed
his surprise at receiving a notice of set down of the
appeal when neither he nor his counsel nor the appellant himself had been
approached
on the question of reconstructing the record. His objection was in
effect that the
audi alteram partem
principle, embodied in the court's
order, had been disregarded. He said that he had complained to counsel acting
for the respondent
in this matter and was told that
"the Honourable Magistrate stood by the reconstructed record and was not
prepared to attend a meeting with the Appellant and his
legal representatives to
prepare a reconstructed record."
19/...
19. In passing one
notes that the attitude of counsel and his attorney were somewhat contradictory:
the former contending that it
was not possible to create a reconstructed record;
the latter deploring the fact that the procedure to produce one was not
followed.
With these documents (to which it has been necessary to refer at some length)
before the court a
quo
the appeal was heard. It was dismissed. The
reasons for this conclusion, and the approach of the court to the "reconstructed
record"
submitted, appear from the following excerpt from the judgment (per
Harms J):
"Die advokaat wat na die bandopname geluister het, het meer as twee jaar na die
tyd 'n beëdigde verklaring gemaak van wat hy
sou onthou wat op die
bandopname was. Hy sê dat hy die indruk gekry het dat die landdros homself
wanvoorgelig het deurdat die
landdros versuim het om die bepalings van hoofstuk
13 van die Strafproseswet toe te pas. Hy sê dit moes geblyk het aan die
landdros dat die
20/...
20.
appellant deur h distriksgeneesheer ondersoek moes word. Dit hou verband met
wat die landdros neergestip het, naamlik, dat die appellant
op h stadium
psigiatriese behandeling ontvang het. Die beëdigde verklaring gaan voort en
sê dat die advokaat nie meer
die detail kan onthou nie, maar dat hy van
oordeel was dat genoeg gesê is om die landdros bedag te maak op die
bepalings van
hoofstuk 13. Hy kan nie onthou wat in die kennisgewing van appel
staan nie, en die probleem wat blyk, is dat die advokaat ex
post facto
met die appellant gekonsulteer het. Sekere aspekte van wat die advokaat glo in
die hof gesê is, kon moontlik aan hom meegedeel
gewees het tydens die
konsultasie met die appellant.
Wat wel opmerklik ontbreek, is h verklaring van die appellant oor wat by die
verhoor gebeur het. Inderdaad het hy geen verklaring
gemaak nie. Hy betwis dus
nie die gebeure voor die hof nie. Daar is ook geen aanduiding wat die appellant
se beweerde psigiatriese
toestand was nie. Al wat voor ons is, is h vae
rekolleksie van die advokaat wat meer as twee jaar oud is. Ook die familie het
niks
voor ons geplaas nie.
Daar is dus nie getuienis waarop ons kan sê dat die rekord, soos deur
die landdros voorberei, nie wesenlik korrek is nie. Daar
is ook nie getuienis
wat daarop wys dat appellant benadeel is in die sin dat daar h sogenaamde
'failure of justice' is soos neergelê
in
S v Marais
1965 2 SA 514
(T).
In die lig van voorgaande, sou ek die appel van die hand wys."
21/...
21 .
It must be. borne in mind that in this case
two irregularities called for consideration in the
court a
quo
.
Firstly, and primarily, the failure to
comply with the reconstruction order,
and secondly, the
alleqed
irregularity in the course of the trial.
The
judgment of the court made no mention of the first and
proceeded to
adjudicate upon the second. This, with
respect, was the wrong approach. The enquiry should
have commenced at the
stage when the reconstruction
order was sought. At that time no record of the
trial
existed. This appears from the first paragraph of the
judgment of
van der Merwe J quoted above and is indeed
implicit in the order itself. A record was necessary
before the appeal
could be heard. To that end the
reconstruction order was made. There was
plainly a
failure to comply with its terms. The court a
quo
none
the less found that there was a (reconstructed) record
enabling the court to turn to, and decide, the merits
22/...
22.
of the appeal. It reasoned that, in the absence of controverting
evidence, what the magistrate put forward as the reconstructed record
was to be
accepted as substantially correct. ("Daar is dus nie getuienis waarom ons kan
sê dat die rekord soos deur die landdros
voorberei, nie wesenlik korrek is
nie.") But reliance on what was submitted as a reconstructed record could only
be justified if
it was shown that, notwithstanding the disregard of the cdurt's
order, what was placed before the court a
quo
was in all material
respects a replica of the trial proceedings. This was not demonstrated to be the
case.
The court a
quo
with good reason criticised
the evidence of Hellens on what he remembered of the
tape recording to which he had listened. His
recollection was vague and to an extent perhaps based
on what was told to
him by the appellant. But, on the
23/...
23.
other hand, counsel, in the passage from his affidavit which has
already been quoted, was emphatic that the papers before court were
incomplete.
Shapiro had justifiably complained that he had not been afforded an opportunity
to take part in the reconstruction of
the record, in fact his request was
treated with disdain. Moreover, the undated statement of Fourie ((ii) above) did
not purport
to be a comprehensive account of what was mechanically recorded. In
his second affidavit ((iv) above) the magistrate candidly stated
that he had
made a verbatim shorthand note of all that he at the time regarded as
relevant.
In the light of these facts one cannot
conclude that a properly constructed record was before
court and therefore
that the appellant was not
prejudiced by the irregularity occasioned by the
failure to comply with the reconstruction order.
24/...
24.
Counsel appearing before us were agreed that, should this be the finding in
this court, no further order for the reconstruction of
the record should be made
since any such attempt was unlikely to succeed. I agree. A similar impasse - a
lost record with no prospect
of reconstructing one - arose in
S v Marais
1966(2) S.A. 514(T). That being the situation, the court at page 516G - H
observed that:
"The appellant has been seriously frustrated and prejudiced owing to a fault on
the part of the State's servants. She is entitled
to an appeal as of right. She
is entitled to receive a copy certified as correct. This cannot be achieved. She
has been frustrated
in a basic right. She has been deprived of this through no
fault of her own. In all these circumstances the only thing to do is to
exercise
the powers granted in sec. 98 of Act 32 of 1944, as amended, and to set aside
the whole of the proceedings."
and at 517 A - B the judgment
proceeded:
25/...
25.
"If during a trial anything happens which results in prejudice to an accused of
such a nature that there has been a failure of justice,
the conviction cannot
stand. It seems to me that if something happens, affecting the appeal, as
happened in this case, which makes
a just hearing of the appeal impossible,
through no fault on the part of the appellant, then likewise the appellant is
prejudiced,
and there may be a failure of justice. If this failure cannot be
rectified, as in this case, it seems to me that the conviction cannot
stand,
because it cannot be said that there has not been a failure of
justice."
In the result in that case the proceedings in the
magistrate's court were set aside, and - it followed -the conviction and.
sentence
were likewise rescinded. I endorse what was said in the quoted passages
f rom that judgment and agree with the form of the resultant
order. A similar
one ought to have been made by Harms J in this case.
In the result the order of the court a
quo
is set aside and the
following substituted:
26/...
26.
"The convictions of the appellant in the regional court, together with the
sentences imposed, are set aside."
M E KUMLEBEN JUDGE OF APPEAL
JOUBERT AJC
SMALBERGER
JA
MILNE JA - Concur
NIENABER AJA