SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION, BHISHO
Case no. CA&R 24/21
In the matter between: REPORTABLE
ZANOXOLO BAYI Appellant
and
THE STATE Respondent
JUDGMENT REFLECTING REASONS FOR APPEAL ORDER
STRETCH J.:
[1] On 3 December 2025 my brother Bodlani AJ and I, sitting as a court of
appeal, made the following order:
1. The appeal succeeds.
2. The conviction and the sentence imposed are set aside.
3. The order of the trial court, convicting the appellant on a charge of rape on 8
February 2012, is set aside and is substituted with the following order:
“The accused is found not guilty and he is discharged.”
4. The Registrar is ordered to arrange for the appellant’s immediate release from
prison.
5. Reasons for this order will be handed down in due course.
[2] What follows then, are the reasons for the order.
[3] On 8 February 2012 the appellant was convicted in the Zwelitsha regional
court on a charge of raping a minor female. Because the complainant was under
the age of 16 years at the time of the alleged rape, the appellant was sentenced
to life imprisonment, in terms of the relevant minimum sentence legislation, on
10 May 2012.
[4] On 18 October 2012 he sought leave to appeal from the regional
magistrate against his conviction and against the sentence imposed. Leave was
refused. According to the appellant’s affidavit in support of an application to
reinstate his appeal (insofar as such an application was necessitated in the
circumstances), he was advised to petition the judge president for leave to
appeal. On 28 November 2012 he signed an affidavit in support of his petition
to the judge president. According to the appel lant the petition was filed on 29
November 2012 under case no. CA & R 06/2012. 1 In March 2014 the appellant
was informed that a notice of appeal had been filed on his behalf on 10 March
2014. According to him he was not informed of the outcome of his pet ition but
was later advised (correctly so) that he had an automatic right of appeal in any
event.2
[5] During September 2014 the appellant was informed by his attorneys,
Legal Aid South Africa (LASA), that a transcript of the proceedings in the
regional court had been requested. Thereafter LASA advised him from time to
time that the transcript had still not become available. In 2016 LASA informed
him that the transcript had been received, but that it was incomplete. Various
attempts to obtain a complete trans cript fell on deaf ears. In August 2021 the
Zwelitsha criminal clerk advised the appellant that reconstruction of the record
was problematic. Her letter read as follows:
‘In the above mentioned [sic] case it was impossible to find the charge sheet as the
court building was under construction for more than two years. The strong room was
also under construction and the charge sheets was [sic] not stored in a secure place.
The case is a partial transcript as most of the cse [sic] was recorded on the casettes
[sic] which was [sic] in use during 2009 until 2010. Some of the casettes [sic] could
not be found.
1 The high court criminal appeals clerk has no record of this file.
2 A person sentenced to life imprisonment by a regional court during 2012 did not have an automatic right of
appeal at that specific time. This was because the law was in a transitional phase during that period. An
automatic right of appeal did exist before 1 April 2010. Between 1 April 2010 and 22 January 2014, the
automatic right of appeal was inadvertently removed by an amendment to the Criminal Procedure Act 51 of
1977, by the Child Justice Act 75 of 2008, which meant that all persons (except children) h ad to apply for leave
to appeal. See S v Alam 2011 (2) SACR 553 (WCC). After 22 January 2014 the Judicial Matters Amendment
Act 15 of 2023 came into effect and retrospectively restored the automatic right of appeal for persons sentenced
to life imprisonmen t, effective from 1 April 2010. The appellant’s case thus ultimately benefited from the
automatic right of appeal once the law was corrected.
I reconstructed the charge sheet from earlier transcripts and the old court book of the
presiding magistrate, Mr Maqubela. On the original charge sheet hi s notes was [sic]
secured with staples and reconstruction of the missing evidence is a problem.’
[6] The appellant in his affidavit, stated that he was visited in prison by one
Mr Erasmus from LASA in August 2022, who had indicated that the record was
still i ncomplete but that he would nevertheless proceed with prosecuting the
appeal. On 24 March 2023 the appeal was set down before Mbenenge JP and
Dawood J. There is nothing in the court file reflecting what transpired on that
day. It is clear however, from markings on the court file cover that the names of
these two judges and the date of 24 March 2023 had simply been erased and
substituted with 3 December 2025, without the high court appeals clerk having
bothered to reflect the high court history of this matte r, neither on the cover of
the court file, or by way of any entries or documentation in the file itself.
[7] On 5 June 2025 the appellant instructed his present attorneys, 3 who set
the matter down for hearing for 3 December 2025. On 21 November 2025 this
court issued an urgent directive which reads as follows:
1. This appeal has been set down for 3 December 2025 in Bhisho.
2. The record is substantially incomplete:
(a) there is no judgment on conviction.
(b) the appellant’s evidence has not been transcribed.
3. The respondent (whose heads of argument are out of time), has taken a point in
limine that the appeal should be struck from the roll because:
3 Mr Erasmus from LASA had passed away in the interim.
(a) the record is incomplete despite p revious directives directing the appellant to
comply;4
(b) There is no record of leave to appeal having been applied for and granted.5
4. There is no record in the court file of previous directives ordering the appellant to
complete the record. It appears that the matter was before Mbenenge JP et
Dawood J as far back as 24 March 2023, but what happened then has been erased
from the court file cover and substituted with 3/12/2025. The high court appeals
clerk (Ms F Menze) is not available for comment. She has, in any event, given
wrong instructions to her colleague, that this is a LASA matter, and has been of no
assistance whatsoever.6
5. What is in the court file is a detailed explanation by the appellant regarding the
delay in this matter, supported, inter alia, by a letter from LASA (the appellant’s
erstwhile representative), to the clerk of the regional court (dated almost ten years
ago) pointing out that the following is absent:
(a) the recalled evidence of S[...] F[...];
(b) the accused’s evidence;
(c) the judgment on conviction (annexure A).
6. Annexure B is the curt response of the criminal clerk Zwelitsha, almost six years
later, stating that recording cassettes are missing and “reconstruction of the
missing evidence is a problem”.
7. As for the second point in limine, not only is leave to appeal not required against
a life sentence imposed by the regional court, but this was pertinently pointed out
in annexure A (dated 11 years ago).
4 Copies of the alleged directives were not attached to th e application for the matter to be struck from the roll.
Nor is there any evidence of what transpired before Mbenenge JP and Dawood J two years ago.
5 See fn 1. The applicant did not require leave as correctly pointed out by Mr Erasmus from LASA.
6 To date this court has not been approached by the high court appeals clerk. Nor has it been explained why the
checklist for criminal appeal records (which ought to be completed by the high court appeals clerk) wrongly
reflects that heads of argument had been file d, that a transcript of the record of proceedings in the trial court
with all the exhibits had been filed, that the judgment of the court a quo had been filed, and that there was a
court order/judgment granting leave to appeal.
8. The appellant’s legal team must approach Mr Nabela (who represented the
appellant on trial and whose number is 083 321 7912) and obtain confirmation in
writing as to whether the missing portions referred to in annexure B can be
reconstructed.
9. My registrar has ascertained that the first prosecutor (Mr Kwa aiman) is deceased,
the second one (Mr Mtwezi) was transferred to Mthatha, and the whereabouts of
the third one (Mr Nkohla) are unknown.
10. It is of vital importance then, that something in writing is obtained from the
magistrate and the appellant’s erstwhil e lawyer Mr Nabela. This must be emailed
to my registrar by 28 November 2025.
11. This appeal may not be removed from the roll. Nor will it be struck from the roll
as suggested by the respondent. The delay in dealing with this matter effectively
to ensure that justice is done, is through no fault of the appellant, who has been in
custody as a sentenced prisoner for almost 14 years.
[8] On the afternoon before the appeal was heard, the appellant’s counsel
filed a document described as a confirmatory affidavit. I digress to point out that
statements on oath should be filed by the instructing attorneys and not by
counsel briefed to argue the appeal. It does not, in any event state what is being
confirmed and is difficult to understand. It seems to suggest that counse l had
been running around doing the work of an attorney. Be that as it may, it is
entirely out of time and did not deal with what this court required in its
directive. This court required, by no later than 28 November 2025, confirmation
in writing from the regional court magistrate and from the lawyer who
represented the appellant at his trial, not only that the evidence recorded was
capable of reconstruction, but that the magistrate was able, almost 14 years
down the line, to rewrite his judgment on convic tion in the same format and
reflecting the same substance in which it was originally produced. Mr Silevana 7
stated in his affidavit that the magistrate had required the transcribed evidence,
which the magistrate had been furnished with on the day precedin g the hearing
of the appeal. If the magistrate still happened to have had a draft of the final
judgment on conviction, it would have been simple for him to confirm this. I
fail to understand why he would have required a transcript of the evidence to do
so. There was also no explanation as to why the magistrate did not previously
mention that he was able to assist. The letter of the Zwelitsha appeals clerk
which was written in August 2021 suggests quite the contrary. This is nothing
short of iniquitous. The appellant, who had been serving a sentence for just
short of 14 years, was totally reliant on lawyers and the executive arm of the
Department of Justice on the other side of the prison walls, to preserve and
promote his common law and constitutional right s to justice. It was also not for
this court to carry out the duties of the parties and the duties of the high court
appeals clerk in attempting to ensure that the matter was ripe for hearing.
Having nevertheless attempted to do so in the interests of just ice, I find it
discourteous and contemptuous for the relevant parties to simply ignore the
compliance date set forth in this court’s directive, and thereafter to fail to read
the directive with any modicum of the understanding expected from lawyers
and officers of the court.
[9] This is not the first time this court has been constrained to deal with the
shockingly lackadaisical attitude of the high court appeals clerk. The Eastern
Cape Registrar is once again urged to take urgent steps to ensure that staff
members who hold highly responsible positions in the Registrar’s office are
7 the appellant’s counsel
properly trained and effectively monitored, especially when they do not appear
to take their responsibilities seriously.8
[10] On the morning of the appeal, what purported to have been a
reconstruction of the magistrate’s judgment on conviction, was delivered to my
registrar. For the sake of completeness, what follows, is a verbatim reproduction
of this document. It reads as follows:
‘In this matter the appellant who was convicted by the Zwelitsha Regional Court on
the 08th of February 2012 and was sentenced to life imprisonment. The record sent to
the Registrar did not have the evidence of the appellant and the court judgment.
Fortunately, my notes are still available.
THE RECONSTRUCTED JUDGMENT
• The accused id charged with Rape read with the provisions of Section 51(1) of Act
105 of 1997 the complainant was Q[...] F[...] and the accused pleaded not guilty
he was legally represented and denied the allegations against him.
• The complainant Q[...] F[...] was 7 years old at the time she testified that she was
with S[...], she was called by a certain man who there after Rape her, she
experienced pain between her legs. This man took off her panties. There was
something that was put between h er legs by this man. She pointed at her Vagina,
under cross examination she confirmed that this man was assaulted by a group of
people and was then apprehended. This man did not take off his clothes.
• The next witness to testify was S[...] F[...] who was older than the complainant,
she was 10 years. 9 She testified that Ma BABBY caused Q[...] to lay down and
she was asked by this man to hold his trousers. This man knelt between Q[...]
8 See S v Gabani 2021 (1) SACR 562 (ECB) where the full court of this Division expressed its displeasure at the
ongoing decline of service delivery in the office of the Bhisho high court registrar and that of the appeals clerk
in the Mdantsane magistrates co urt, which falls within the same geographical jurisdiction as the Zwelitsha
regional court. Copies of that judgment were made available to the registrar and the court manager of the Bhisho
high court, as well as the deputy director -general, court services and the regional head of the department of
justice in the Eastern Cape. Clearly to no avail.
9 It is clear from what had been transcribed that Sesethu is a boy, not a girl.
thighs he inserted his hands in Q[...] private parts the community was then called,
and the person ran away.
• The next witness was N[...] F[...] she is Q[...] Aunt Q[...] and S[...] informed her
that Ma babby had raped Q[...]. The was blood in Q[...] panty and private parts.
• The medical report indicated that the we re fresh tears and bruising in the child’s
private part the vagina was bleeding and there were tears all round.
• The accused testified in his defence that he only knew the last state witness, he did
see the children but did not molest anyone, after he past bye the children he heard
one person saying that he must be apprehended that person was carrying a stick
and he decided to run away. He testified that he was the only one on the street he
denied raping anyone he was just at the scene with these children br iefly that is
the evidence that was lead.
• In its judgment the court was aware that the witnesses where young children and
the cautionary rules where applied I am an able 10 to recall what I said in my
judgment safe to say that the cautionary rules and the o wners to the criminal court
were taken to account.
• What is common cause is that the child was sexually assaulted the J88 indicated
beyond reasonable doughty. The injuries were fresh.
• The accused was with the children, and he even said that he was the only person
there at the scene with the children.
• The children made a report of Rape to a third witness and according to the
accused he heard one person saying he must be apprehended. It is clear that when
the children made their report, they mentioned his name it is clear that the injuries
were caused by the accused.
• The court was mindful of the short coming of the evidence given by the children
who were very young.
• Taking all the evidence to account it is clear that the accused was at the scene with
the c hildren. The court consequently was satisfied that the case was proved
beyond reasonable doughty.
beyond reasonable doughty.
• I must also mention that I did not have enough time to reconstruct the judgment
and also the evidence of the accused does appear in my notes at page 14 and 15.
10 Presumably this should read “unable”.
S.P. Maqubela
MAGISTRATE
ZWELITSHA MAGISTRATE’S COURT
2025 -12-03
[11] I shall now traverse the merits of the appeal. It is so that the testimony of
the appellant had not been reconstructed and/or transcribed. For reasons which
will follow, I do not deem it necessary. It suffices to say that based on the
evidence of the three prosecution witnesses, the appellant was entitled to a
discharge at the close of the case for the prosecution. Counsel for the respondent
did not contend otherwise at the appeal hearing. As I have said, when the appeal
was heard, the appellant had been incarcerated as a sentenced prisoner for just
short of 14 years, and any further delay would effectively have amounted to him
having been denied any form of justice.
[12] In the absence of the appellant’s evidence, and having traversed the
purported reconstruction of the judgment on conviction, this court had before it,
what can only be described as a mishmash of diametrically opposed and
mutually exclusive information which, to some extent, di d not even constitute
evidence, and which did not pass muster in supporting a conviction in a criminal
case. Indeed, to my mind the evidence was of such a poor quality that it fell
short of even discharging a civil onus.
[13] I say that the testimony of the c omplainant and her cousin, S[...] F[...],
did not constitute evidence for the following reasons: The complainant, Q[...]
F[...], who was seven years old when she gave evidence, testified through an
intermediary, Ms Lindelwa Mdudu, purportedly in terms of the provisions of
section 170A of the Criminal Procedure Act 51 of 1977.
[14] Section 170A(11) reads thus:
‘Subject to subsection (13), any person who is competent to be appointed as an
intermediary in terms of subsection (4)(a) must (emphasis added), before commencing
with his or her functions in terms of this section, take an oath or make an affirmation
subscribed by him or her, in the form set out below before the judicial officer
presiding over the proceedings:
‘I, …….. do hereby swear/truly affirm that, whenever I may be called upon to
perform the functions of an intermediary, I shall, truly and correctly to the best of my
knowledge and ability –
(a) perform my functions as an intermediary; and
(b) convey properly and accurately all questions put to the witnesses and, where
necessary, convey the general purport of any question to the witness, unless
directed otherwise by the court.’
[15] The effect of this subsection is that an intermediary should not only be
required to take the oath/affirmation as a witness before the court questions her
on her competence as envisaged in subsection 170A(12) of the Criminal
Procedure Act, but it is mandatory for her, once she has been qualified as an
intermediary, to take the oath/affirmation provided for in subsection (11). It
appears from the incomplete transcript with which we had been furnished, that
although Ms Mdudu was sworn in as a witness, she was not required to take the
prescribed oath/affirmation provided for in s 170A(11) of the Criminal
Procedure Act.
[16] Although the jury is still out on whether failure to comply with subsection
(11) is an irregularity which renders the evid ence given via the intermediary
inadmissible and not in accordance with justice, it is but one of the bouquet of
problems in this matter. It is evident from the wording of the subsection that the
legislature intended the taking of this oath/affirmation to be compulsory, and
that failure to do so constituted an irregularity. Whether such irregularity has the
effect of vitiating the proceedings, seems to have been something which has
thus far been dealt with on a case-by-case basis.
[17] The matter which we dealt with at the appeal hearing is a complex one.
There were several contributing factors, apart from the incomplete record,
which were independently and singularly fatal, in my view, with respect to the
conviction. Had this been the only irregularity, this c ourt would have been
constrained to give serious consideration to whether the irregularity was indeed
fatal. But it was not. In the premises I was of the view, in the circumstances, that
the irregularity was serious and was all the more reason why the conv iction
could not stand.11
[18] It gets worse. The second witness, S[...] F[...], who was purportedly an
eyewitness to whatever may have happened to the complainant, was ten years
old when he testified. He gave evidence through a different intermediary, one
Ms Zandile Linjani/Mlinjana. This time it appeared (according to an annexure
to the reconstructed charge sheet) that although subsection (11) had been
substantially complied with, she was not sworn in as a witness before she was
questioned on her suitability and her competency as an intermediary. Section
162(1) of the Criminal Procedure Act states:
‘Subject to the provisions of sections 163 and 164, no person shall be examined as
a witness in criminal proceedings unless he is under oath . . . .’
11 See S v Motaung 2007 (1) SACR 476 (SE) at 479-480 where Jones J was at pains to stress the importance of
the intermediary’s role in the process of presenting evidence to the court in a fair and proper manner, and the
extent to which the procedure made inroads into the fundamental rule that the ac cused is entitled to be
confronted by his accuser in open court. Insisting on the oath would be one way of reducing the impact of the
inroad.
[19] It is trite that a failure to administer the oath/affirmation to a witness
renders the evidence of the witness inadmissible. The statutory provision is
peremptory.12 The effect of not administering the oath to this intermediary
before she placed her credentials on record, as required by section 170A(12)(b),
to my mind, meant that she was never qualified as an intermediary. The
intermediary must be competent to act as such. The purpose of this is twofold.
Firstly, so that she falls within a class or category which make s her eligible for
the appointment. Secondly, she must be found to be competent after the enquiry
by the judicial officer, referred to in subsections 12(a) and (b), has taken place.
The effect of the second intermediary not having been sworn in, was that
whatever she conveyed to the court on behalf of the witness S[...] F[...], must be
regarded as pro non scripto. At the end of the day it seems that the only
evidence which was not tainted by irregularities was that of the complainant’s
aunt, who was not present when the complainant was sexually assaulted.
[20] But even if I am not correct with respect to my interpretation of the law
pertaining to intermediaries, the trial court was also faced with several
inconsistencies and seriously problematic areas with respect to the evidence and
the demeanour of the complainant ( Q[...] F[...]) and the other two witnesses,
S[...] and N[...] F[...]. I mention but a few:
(a) Q[...] testified that she met a man and he “raped” her. When she was asked
what he did before he raped her, she simply repeated “he raped me”. When
asked what he did first, she repeated “he raped me”. When asked what he
used to rape her, she did not reply . When the presiding officer came to her
assistance by asking her whether anything was placed between her legs,
12 See S v B 2003 (1) SACR 52 (SCA) at [14]; S v Gallant 2008 (1) SACR 196 (E) at [4]; S v Matshivha 2014
(1) SACR 29 (SCA) at [10]
she said yes, but was unable to say what this “thing” was used for. She was
also unable to describe this “thing” or to say where it was situated on the
body of her assailant. When asked if he did not take off his clothes, she
said yes. When asked what she meant by “yes” she gave no reply. When
asked whether she knew her assailant, she said no. When asked whether it
was her first time to see him, s he said yes. The complainant, who was
testifying from another room via a closed -circuit television (CCTV), was,
significantly, also not brought into court to identify her assailant.
(b) The witness S[...] F[...], who is the complainant’s cousin, testified th at one
“Mabebi” called the complainant and caused her to lie down. Mabebi then
lowered “it” and ordered the witness “to hold it”. Mabebi then knelt
between the complainant’s thighs and inserted his hand into her private
part. Mabebi then instructed the complainant to lick his private part, which
she did. S[...] testified that he did not see Mabebi’s private part himself.
When asked whether the assailant/Mabebi inserted his private part into the
complainant’s, the witness replied that he inserted a finger. It is not clear
whether this witness was also testifying via CCTV , but he too, appears not
to have been asked to identify the accused. Indeed when it was
nevertheless put to him that the accused would deny inserting his hand into
the complainant’s private parts, he said that he did not witness that
happening.
(c) S[...]’s mother ( N[...]) is the complainant’s aunt. She testified that the
reason she knew the accused was because he had raped the complainant.
She also knew him from school. After the children ha d reported to her that
one “Mabebi” (whom she said was the accused) had raped the
complainant, the accused was confronted by the community and denied the
allegation against him. She said that the complainant had reported to her
that the accused had had sexual intercourse with her by inserting his finger
into her vagina. She added that nothing else happened to the complainant.
Upon having been prompted, she said that the accused had inserted his
penis into the complainant’s vagina. It appears that her son di d not tell her
about the complainant having been asked to lick the accused’s penis.
Significantly, she said that the complainant knew the accused, whereas the
complainant testified that she did not know her assailant. During cross
examination it was put to her that her son had testified that the accused
only inserted his hand into the child’s vagina. Her somewhat inappropriate
response was that he never inserted a finger. He inserted his penis, and
there was blood on the complainant’s panty. When it was put to her that her
son had said that the accused inserted his hand into the complainant’s
vagina, and not his penis, her response was:
‘But Q[...]’s panty, your worship, had blood, and also on her private part.’
[21] The upshot of the foregoing inconsistencies and contradictions was that
the complainant did not identify her assailant and was unable to say what had
happened to her, except to repeat the word rape, as if by rote. This takes us to
the case which the appellant was called upon to meet. The appellant was called
upon to plead to a charge of having inserted his genital organ into the
complainant’s genital organ. The only person who alleged this, was the
complainant’s aunt. However, she was not present when the complainant was
assaulted. Her reason for h aving said so appears to have been based on an
assumption because the complainant was bleeding.
[22] It is clear from the medical evidence that the complainant had been
interfered with sexually, but she was not called upon to identify her assailant. It
is not clear whether her witness S[...] testified in open court. But even if he did,
and even if he identified the accused, very little weight can be attached to such
an identification. Firstly, it would have amounted to a dock identification and
secondly, the accused was the only person in the dock.
[23] As I have said, these are but some of the problems with what is on record.
The greater area of concern is the fact that the accused’s evidence, the recalled
evidence of S[...] F[...] and the trial court’s entire or iginal judgment, explaining
how it had arrived at a guilty finding, did not form part of the record, and any
attempts to properly reconstruct the record had failed dismally.
[24] In the premises the appellant found himself in the unfortunate position
where he was unable to properly formulate his grounds of appeal, as he had not
been provided with a full judgment in order to consider where the magistrate
may have erred or misdirected himself, or where he had exercised his discretion
upon a wrong principle, or whe re he had made incorrect findings of fact or
rulings of law based on the evidence which the magistrate ought to have
analysed.
[25] The document which was made available shortly before the hearing of the
appeal, purporting to be a reconstruction of the judgmen t, did not traverse any
of the areas of concern which I have raised in this judgment. It was, in any
event, for all intents and purposes, not a reconstruction in the true sense of the
word. This much was also conceded by the respondent, and correctly so in my
view, at the hearing of the appeal.
[26] Despite the respondent having supported the conviction and the sentence
imposed in heads of argument, counsel representing the respondent at the
hearing of the appeal, candidly conceded that the conviction could not stand.
[27] At the end of the day it is the judgment of the trial court which is under
attack in an appeal. 13 The importance of a complete and proper record of
proceedings, and its connection with the right to a fair trial, was authoritatively
confirmed in S v Schoombee & another 2017 (2) SACR 1 (CC) at [19]:
‘It is long established in our criminal jurisprudence that an accused’s right to a fair
trial encompasses the right to appeal. An adequate record of trial court proceedings is
a key component of this right. When a record “is inadequate for a proper
consideration of an appeal, it will, as a rule, lead to the conviction and sentence being
set aside.’”14
[28] As stated by the authors Du Toit et al, it stands to reason that the record
forms the foundation of the appeal process. Without a complete record, the
administration of justice suffers. 15 The Constitution provid es through s 35 that
an accused person has a right to a fair trial. This includes the right to an appeal
and/or to a review. 16 When a court of appeal is not furnished with a proper
record of the trial proceedings, the matter cannot be adjudicated properly, and
the accused’s right to a fair trial is seriously compromised.
[29] I am to some extent, fortified that the conclusion which we reached, to set
aside the conviction, was not based solely on a completely inadequate record. It
also took into account that what had been recorded (being in essence the State’s
case) was so fraught with contradictions and inconsistencies, that no court could
or should have convicted thereon, taking into account the accused’s right to
remain silent, and the strict onus which rests on the prosecution before even
taking into account anything which the accused may have said should he have
elected to testify. It also took into account the irreversible damage caused by the
13 See Qunta v Minister of Police (unreported ECG case no CA 114/2012, 5 June 2013) at [15]; S v Phakane
2018 (1) SACR 300 (CC) at [41]; Yawa v S (CA&R 134/2022)[2024] ZAECGHC (14/2/2024)
14 See also S v Chabedi 2005 (1) SACR 415 (SCA) at [5]
15 Du Toit et al: Commentary on the Criminal Procedure Act, Supplementary Bundle, Service 69, 2022 at 30-32
16 See Schoombee at [19]
intermediaries not having been dealt with in terms of the prerequ isites set forth
in the Criminal Procedure Act.
[30] Finally, it appears from the history of this matter, taken together with
what had been submitted to us and the disadvantages which come with the
effluxion of time, that finalisation of this matter could no longer be delayed. It is
so improbable that this record was ever going to be reconstructed into a format
acceptable to an appeal court, that any prospect of this happening could and was
safely dismissed. Even if it was capable of reconstruction, the evidenc e of the
State witnesses which was already before us, left much to be desired. It was not
in dispute that the missing portions which contained evidence (least of all the
evidence of the accused himself), and findings (least of all the judgment on
conviction), were of material importance to the adjudication of the appeal. In
the premises we found that the appeal ought to succeed and that the conviction
and the sentence had to be set aside. 17 These then, are the reasons for the urgent
order which we made on 3 December 2025.
[31] It is once again directed that copies of this judgment be made available to
the following parties for their consideration:
(a) The Registrar and the Court Manager of the Bhisho High Court
(b) The Deputy Director-General, Court Services, Pretoria
(c) The Regional Head, Department of Justice, Eastern Cape
17 See S v Phakane 2018 (1) SACR 300 (CC) at [41], where the cruci al evidence of a witness was missing. In
the matter before us, the presiding officer said in no uncertain terms that he wanted to recall the “crucial”
witness, Sesethu Faniso, after Sesethu’s mother (who was the last State witness) was the only witness to
introduce the presence of blood. The record does not reflect whether Sesethu was in fact recalled. As was held in
Phakane, it is probable that the court found it important to deal with this issue of the presence of blood. An
explanation was required, and t he presiding officer, and the court of appeal for that matter, needed to assess the
explanation. Without a full record, and without a judgment, this court of appeal cannot judge this issue which
ultimately renders the appellant’s right to a full appeal nug atory and illusory, as was held in Phakane, where the
court of appeal set aside the whole trial [at 38 and 41].
(d) The appellant’s legal representative for onward transmission to the
appellant.
___________________________
I.T. STRETCH
JUDGE OF THE HIGH COURT
I agree:
__________________________________
A. BODLANI
ACTING JUDGE OF THE HIGH COURT
Counsel for the appellant: V .C. Silevana
Instructed by: N Hlazo Attorneys
EAST LONDON
Tel. 043 721 1040
Email noluthando@hlazoattorneys.co.za
Counsel for the respondent: C. Giyose
Instructed by: The Director of Public Prosecutions
BHISHO
Email CGiyose@npa.gov.za
Date heard: 3 December 2025
Date of order: 3 December 2025
Date judgment handed down in East London: 3 February 2026