THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 679/2023
In the matter between:
PHENYO SETHOSA APPELLANT
and
THE STATE RESPONDENT
Neutral citation: Sethosa v The State (679/2023) [2024] ZASCA 172 (12
December 2024)
Coram: NICHOLLS, MOLEFE, KGOELE JJA and KOEN and DOLAMO
AJJA
Heard: 07 November 2024
Delivered: This judgment was handed down electronically by circulation to the
parties’ legal representatives by email, publication on the Supreme Court of Appeal
website and released to SAFLII. The time and dat e for hand-down is deemed to be
11h00 on 12 December 2024.
Summary: Criminal Procedure – appeal against conviction and sentence – leave to
appeal refused by the Regional Court – petition in terms of s 309 C of the Criminal
Procedure Act 51 of 1977 refused by the High Court – special leave to appeal against
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the dismissal of the petition granted by this Court – incomplete record of appeal –
reconstruction required – remittal of the petition for reconsideration.
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ORDER
On appeal from: Gauteng Division of the High Court, Johannesburg ( Bhoola and
Ramlal AJJ sitting as court of appeal):
1 The appeal against the dismissal of the petition by the high court succeeds to the
extent set out below;
2 The order of the high court dismissing the petition filed by the appellant is set
aside and replaced with the following:
‘(a) The applicant’s legal representative is directed to immediately ta ke steps to
properly reconstruct the missing record of the proceeding that took place ,
inter alia, on 16 February 2021 , 19 July 2021 , and 5 November 2021 , in
consultation with all relevant role players including the regional magistrate,
according to the guidelines in:
(i) Muravha v Minister of Police 2024 (4) SA 84 (SCA);
(ii) S v Leslie 2000 (1) SACR 347 (W);
(iii) S v Schoombee and Another 2017 (2) SACR 1 (CC).
(b) The clerk of the Regional Court, Johannesburg, the applicant , and the State
are directed to arrange a sitting of the regional court to reconstruct the missing
parts mentioned in paragraph (a) above. The clerk of the regional court, the
State, and the applicant are further directed to furnish affidavits to accompany
the reconstructed record, setting out precisely what steps were taken to
reconstruct the same and whether they are satisfied with its content.
(c) The reconstructed record should be finalised on or before 28 February 2025.
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(d) The reconstructed record shall thereafter be placed before two judges of the
Gauteng Division of the High Court, Johannesburg, for a consideration of the
complete record on petition by a court , differently constituted to that which
previously considered the petition, on or before 31 March 2025.
(e) The appeal shall lapse upon expiration of the time frames specified in
paragraphs (c) and (d) above unless the Gauteng Division of the High Court,
Johannesburg, extends the timeframes.
(f) In the event of any portion of the record not being capable of reconstruction,
it is directed that the regional magistrate, the clerk of the regional court, the
legal representative of the applicant, the applicant, and the State are to furnish
affidavits explaining why the record could not be so reconstructed.
(g) The appeal record is remitted to the c lerk of the Regional Court ,
Johannesburg, to be dealt with as indicated above.’
JUDGMENT
Kgoele JA (Nicholls, Molefe JJA and Koen and Dolamo AJJA concurring)
[1] The appellant, Mr Phenyo Sethosa, was convicted of rape in contravention of
s 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32
of 2007 (the Act) by the Regional C ourt, Johannesburg (the regional court) . As a
result of the fact that s 51(2)(b)(i) and schedule 2 of the Criminal Law Amendment
Act 105 of 1997 (the CLA) were applicable, he was sentenced to 10 years’
imprisonment, the regional court having found that no substantial and compelling
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circumstances existed. His application for leave to appeal against both the conviction
and sentence was dismissed by the regional court . The appellant subsequently
obtained special leave from this Court against the refusal of the petition , which he
lodged with the Gauteng Division of the High Court, Johannesburg (the high court).
[2] In the heads of arguments filed with this C ourt, the S tate, the respondent
opposing the appeal, raised a point in limine that the appeal record was incomplete.
The respondent bemoan ed the fact that the recordings of the following court
appearances were not transcribed and or included in the bundles prepared for this
appeal:
2.1 15 January 2021, which comprised of the evidence of the medical doctor who
conducted the medico -legal examination and formal admissions made by the
appellant.
2.2 16 February 2021, which comprised of the application for a discharge in terms
of Section 174 of Act 51 of 1977 (the CPA).
2.3 19 July 2021, which comprised of the reasons why the appellant ended the
mandate of his initial legal representative when the new one appeared on his behalf.
2.4 5 November 2021, which comprised of an application by the new legal
representative of the appellant to recall the complainant, which was granted by the
regional court on limited grounds.
[3] While preparing for the hearing of this appeal, it became apparent to this Court
that the respondent’s observation was correct. On the other hand, the appellant was
conspicuously silent on this preliminary point until it was raised during the hearing
by this Court. The problem was exacerbated by the fact that the appellant’s counsel
could not positively answer the crucial questions posed to him by this Court during
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the hearing on this issue. As a result of the unsatisfactory response received from the
appellant’s counsel, this Court issued the following directives on 7 November 2024:
‘1. It is ordered that the [applicant] should, through his attorney , provide an affidavit to the
Registrar of this Court by no later than 15 November 2024 setting out:
1.1 Whether the full record of the proceedings in the regional court was submitted to the two high
court judges when they considered the petition for leave to appeal against conviction and sentence.
1.2 An explanation as to what steps were taken to rectify the missing transcript of the evidence,
once the [applicant’s] attorney was made aware of the defective records by the respondent.
1.3 The respondent is to provide a confirmatory affidavit as to whether the record can be remedied
without reconstruction.’
[4] The supplementary affidavits filed by both parties, pursuant to the directives,
revealed that the c lerk of the regional court confirmed that the only transcribed
recording available from the list was that of 15 January 2021. The said transcribed
record was attached to the appellant's supplementary affidavi t. It also became
apparent from the affidavits filed that there have been no attempts to reconstruct the
missing parts for which no transcribed recordings were available. Furthermore, the
supplementary affidavit filed by the appellant 's legal representative stated that the
record submitted to the high court to consider the petition was precisely the same. In
other words, an incomplete record of appeal was presented to the high court to
consider the petition.
[5] The record of proceedings in the trial court is of cardinal importance as it
forms an integral part of the hearing by the court of appeal. The importance of a
proper record of the proceedings and its connection with the right to a fair trial was
succinctly confirmed in S v Schoombee and Another1 as follows:
1 S v Schoombee and Another 2017 (2) SACR 1 (CC) para 19; S v Chabedi 2005 (1) SACR 415 (SCA) para 5.
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“It is long established in our criminal jurisprudence that an accuse d’s right to a fair trial
encompasses the right to appeal. An adequate record of the trial court proceedings is a key
component of this right.”
[6] It is trite that the appellant bears the duty to furnish this Court with a complete
record of appeal.2 Furthermore, the Constitutional Court reaffirmed this position. It
held that while the trial court is required to furnish a copy of the record, the appellant
or his or her legal representative carries the final responsibility to ensure that the
appeal record is in order.3 Similarly, the entire record of proceedings in the regional
court is, in my view, required for consideration of a petition by the high court.
[7] It appears that the high court merely disregarded the missing p arts of the
transcribed record when coming to its decision. The respondent maintained that the
missing parts are necessary to consider the appeal. This proposition is correct, and it
is bolstered by the fact that the appellant, having recovered a portion of the missing
records as indicated above (the transcribed record of 15 January 2021 attached to the
supplementary affidavit), now wants to persu ade this Court to receive such record
to hear the merits. However, it would be improper for this Court, and also not in the
interest of justice, to consider the evidence that was not before the high court wh en
the petition was considered.
[8] Without a complete record of the proceedings, or in the absence of it, a proper
reconstruction of the missing parts, this Court is u nable to make an informed
decision as to whether the proceedings before the high court, when it considered the
petition, were in accordance with justice and, furthermore, whether its decision on
2 Rule 8 of Rules Regulating the Conduct of the Proceedings of the Supreme Court of Appeal of South Africa.
3 S v Schoombee and Another above para 21, quoting S v Sibelelwana [2012] ZAWCHC 150 at 10.
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the merits should stand. The appellant’s legal representative should ensure that steps
are taken to reconstruct the parts of the proceedings that did not serve before the
regional court. Once that is done, the application must be laid before the high court
to reconsider the petition , having regard to the complete record of the regional
court’s proceedings. Procedurally, an appropriate order would be to set aside the
high court's decision and remit the matter back to enable the high court to reconsider
the petition afresh.
[9] The following order is made:
1 The appeal against the dismissal of the petition by the high court succeeds to
the extent set out below;
2 The order of the high court dismissing the petition filed by the appellant is set
aside and replaced with the following:
‘(a) The applicant’s legal representative is di rected to immediately take steps
to properly reconstruct the missing record of the proceeding that took
place, inter alia, on 16 February 2021, 19 July 2021, and 5 November
2021, in consultation with all relevant role players including the regional
magistrate, according to the guidelines in:
(i) Muravha v Minister of Police 2024 (4) SA 84 (SCA);
(ii) S v Leslie 2000 (1) SACR 347 (W);
(iii) S v Schoombee and Another 2017 (2) SACR 1 (CC).
(b) The clerk of the Regional Court, Johannesburg, the applicant, and the State
are directed to arrange a sitting of the regional court to reconstruct the
missing parts mentioned in paragraph (a) above. The clerk of the regional
court, the State, and the applicant are further directed to furnish affidavits
to accompany the reconstructed record, setting out precisely what steps
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were taken to reconstruct the same and whether they are satisfied with its
content.
(c) The reconstructed record should be finalised on or before 28 February
2025.
(d) The reconstructed record shall thereafter be placed before two judges of
the Gauteng Division of the High Court, Johannesburg, for a consideration
of the complete record on petition by a court, differently constituted to that
which previously considered the petition, on or before 31 March 2025.
(e) The appeal shall lapse upon expiration of the time frames specified in
paragraphs (c) and (d) above unless the Gauteng Division of the High
Court, Johannesburg, extends the timeframes.
(f) In the event of any portion of the record not being capable of
reconstruction, it is directed that the regional magistrate, the clerk of the
regional court, the legal representative of the applicant, the applicant, and
the State are to furnish affidavits explaining why the record could not be
so reconstructed.
(g) The appeal record is remitted to the clerk of the Regional Court,
Johannesburg, to be dealt with as indicated above.’
_______________________
A M KGOELE
JUDGE OF APPEAL
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Appearances
For appellant: AJC Kriel
Instructed by: BDK Attorneys, Johannesburg
Symington & De Kok Attorneys, Bloemfontein
For respondent: AM Williams
Instructed by: Director of Public Prosecution, Bloemfontein.