IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU -NATAL DIVISION, PIETERMARITZBURG
CASE NO: AR361/2022
In the matter between:
LUCKY MTHETHWA APPELLANT
and
THE STATE RESPONDENT
ORDER
MOSSOP J : (HARRISON J concurring )
[1] In a covering letter that accompanied the appeal record in this matter , the
presiding regional magistrate identified a portion of the record that he viewed as
being incomplete. In this regard, he directed this court’s attention to indexed page
158 of the record . It appears that a small portion of the record is, indeed, incomplete
at that page.
[2] But unfortunately, the regional court magistrate failed to notice a much
larger portion of the record that is missing.
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[3] Proceedings on 16 October 2019 commence at indexed page 58. At
indexed page 88, line 6, it is recorded that the State had no further questions for its
witness, Ms Nombulelo Samkele Sithole (Ms N Sithole) , and Mr Chamane, the legal
representative actin g for the appellant, was due to commence his cross -examination
of her. Mr Chamane requested a short adjournment from the court to take
instructions and the court agreed to take the tea adjournment to allow him to take
those instructions . Nothing further then appears in the record relating to the
anticipated cross -examination.
[4] At page 89 of the record , the following annotation appears:
‘[Transcription note: No proceedings recorded after the adjournment and/or not received for
transcription].
MATTER POSTPONED UNTIL [NOT ON RECORD]’
[5] The record recommences on 24 October 2019, where the public prosecutor
states the following:
‘Appearances are the same as before. The matter is partly heard before this Court, Your
Worship. I believe it was remanded until today for the defence case.’
The appellant was then called to the witness box by his legal representative and
gave his evidence.
[6] There is, thus, no recordal of the cross -examination of Ms N Sithole. During
the evidence of the appellant there was frequent reference to thing s that she
apparently said that do not appear in her evidence in chief and can, therefore, only
have been mentioned by her in cross -examination.
[7] The audio recording of the cross -examination of Ms N Sithole on 16
October 2019 , and any other witness called by the State after she concluded her
evidence, must be located and transcribed.
[8] If a transcript cannot be prepared , then the full record of what occurred on
16 October 2019 , and on any other day of hearing before 24 October 2019 , must be
reconstructed. Included in this order of reconstruction is that portion of the record at
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indexed page 158 mentioned by the regional magistrate. The reconstruction i s to be
done in accordance with the guidelines set out in:
(a) State v Leslie 2000(1) SACR 347 (W);
(b) State v Zondi 2003(2) SACR 227 (W); and
(c) State v Zenzele 2009(2) SACR 407.
[9] If necessary, the use of secondary evidence as well as the use of an
alternative stenographer to reconstruct the record may be employed.
[10] The reconstruction of the record is to occur before t he complete appeal
record is returned to this court but must be addressed as a matter of extreme
urgency.
[11] In the event of the record having to be reconstructed, t he presiding regional
magistrate, the clerk of the court, the appellant’s legal representative at the time of
the trial and the public prosecutor are directed to furnish affidavits which are to be
handed to the clerk of the court and which shall accompany the reconstructed
record, setting out precisely what steps were taken to reconstruct the record. In
particular, the regional magistrate must deliver a full explanation setting out why he
did not appreciate that the transcript was incomplete, for it is his duty to ensure that a
true record of what occurred before him is submitted to this appellate authority.
[12] In the event of the record not being capable of reconstruction, it is directed
that the persons identified in the preceding paragraph shall indicate in the aforesaid
affidavits the reason(s) why the record could not be reconstructed.
[13] The matter is accordingly adjourned sine die.
________________ _____ ___
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MOSSOP J
I agree:
________________ _____ ___
HARRISON J
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APPEARANCES
Counsel for the app ellant: Mr E M Chiliza
Instructed by: Legal Aid South Africa
Durban Local Office
Ground Floor
The Marine Building
22 Dorothy Nyembe Street
Durban
Counsel for the respondent : Mr J Kisten
Instructed by: Director of Public Prosecutions
Durban