IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
Case No. AR201/24
In the matter between:
PHELELANI ZULU Appellant
and
THE STATE Respondent
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ORDER
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On appeal from : The Regional Court for the Regional Division of KwaZulu-Natal
held at Nqutu (Mr A J Ferreira sitting as court of first instance).
1. The appeal is upheld.
2. The conviction and sentence by the court a quo are set aside.
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EX-TEMPJUDGMENT
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Singh J (S Hadebe AJ concurring)
Introduction
[1] The appellant was convicted of one count of robbery with aggravating
circumstances in the Nqutu Regional Court. On 25 March 2019, the appellant was
sentenced to 20 years imprisonment. On 08 April 2024, the court a quo granted the
appellant leave to appeal against his conviction and sentence.
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[2] On 2 6 February 2025, the appeal was adjourned sine die . An order for the
reconstruction of the record was made. It was further ordered that in the event of the
record not being capable of reconstruction, the court a quo was to furnish a
memorandum as to why the record could not be reconstructed. In addition, the State,
the appellant, the appellant’s legal representative and the Clerk of the Court were
directed to furnish affidavits explaining as to why the record was not capable of
reconstruction.
[3] A sitting of the court a quo was convened on 17 April 2025, together with the
prosecutor, Clerk of the Court and the appellant. In a detailed memorandum, the
court a quo stated that it had minimal recollection of the matter. This was confirmed
on affidavit by the Clerk of the Court who also stated that there was no sound when
the recordings were played. The prosecutor, who dealt with the matter in the court a
quo, also deposed to an affidavit, stating that she had n either records nor
recollection of the matter and that she was unable to assist with the reconstruction of
the record . Ex facie the transcript, it is apparent that there is no original charge
sheet, none of the appearance sheets have been signed by the court a quo nor is
the basis upon which the appellant was convicted and sentenced clear. The only
available record was the proceedings when the application for leave to appeal was
heard.
The parties submissions
[4] The appellant , in his written heads of argument , submits that the court is
required to read the entire record in order to determine the appeal. The appeal
record in its current state will not afford the appellant his full right of appeal, given
that the court a quo’s judgment on conviction and the reasoning as to sentence is not
capable of being assessed by this court in hearing the appeal. The appellant
therefore submits that the appeal must be upheld and that the conviction and
sentence by the court a quo must be set aside.
sentence by the court a quo must be set aside.
[5] The State , in its written heads of argument , concedes that the record is
incapable of reconstruction and that the appeal must accordingly be upheld and the
conviction and sentence be set aside. It further submitted that in terms of s 324(c) of
the Criminal Procedure Act 51 of 1977 (‘the CPA’), the matter ought to be remitted to
the court a quo to start de novo before another presiding officer. The basis of this
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submission was that there was no sound in the recordings. In support of this
submission, the State relies on Muravha v Minister of Police 1 where it contends that
the Supreme Court of Appeal (‘the SCA’) approved the approach of remittal where
the record is incapable of reconstruction.
The issue to be considered
[6] There is only crisp issue to be considered in this matter and that is the
submission made by the State that the matter be remitted to the court a quo for a
new presiding officer to hear the matter de novo.
The Law
[7] In light of the aforesaid issue, it is necessary to consider the various
authorities regarding an incomplete court record.
[8] The legal principles pertaining to the hearing of an appeal on a reconstructed
record, has been settled by various authorities over the years. In S v Chabedi 2, the
SCA stated:
‘. . . :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 , n ot that it must be a perfect
recordal of everything that was said at the trial.’
[9] The SCA in Chabedi went on to say:
‘The question whe ther 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.’3
[10] In S v Collier 4, the court stated:
‘In my opinion the court of appeal should deal with the case on the best available record
unless it appears that evidence placed before the lower court does not appear on the record,
that such evidence is material to the adjudication of the appeal and that the issues as to the
missing evidence cannot be settled by way of admission or in some other manner. Where
1 Muravha v Minister of Police [2024] ZASCA 11, 2024 (4) SA 84 (SCA) (Muravha)
1 Muravha v Minister of Police [2024] ZASCA 11, 2024 (4) SA 84 (SCA) (Muravha)
2 S v Chabedi 2005 (1) SACR 415 SCA, para 5 (Chabedi)
3 Ibid para 6
4 S v Collier 1976 (2) SA 378 (C) at 379 D (Collier)
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material evidence is not on record and the defect cannot be cured, the appeal should
succeed.’
[11] I turn now to consider the reliance placed by the State on s 324(c) of the CPA.
Section 324(c) reads as follows:
‘Whenever a conviction and sentence are set aside by the court of appeal on the ground –
(c) That there has been any other technical irregularity or defect in the procedure,
Proceedings in respect of the same offence to which the conviction and sentence referred
may again be instituted either on the original charge, suitably amended where necessary,
upon any other charge as if the accused had not previously been arraigned, tried and
convicted.’
[12] The equivalent provision in the repealed Criminal Procedure Act 56 of 1955,
(‘the repealed CPA’) was s 370(c) and was worded in precisely the same terms as s
324(c) of the CPA . In considering s 370(c) of the repealed Act, in S v Naidoo 5,
Holmes JA stated that the said section:
‘Empowers a re-trial where a conviction and sentence ha ve been set aside on appeal on the
ground of a technical irregularity or defect in the procedure. This Court, interpreting that sub-
section in consonance with the common law, has held that an irregularity is technical within
the meaning of the sub-section if it is of such a nature as to preclude a valid consideration of
the merits on appeal. In other words, if it is impossible for the court of appeal to give a valid
verdict on the merits.’
[13] The court in Naidoo had to determine whether there was an irregularity before
the court a quo and it considered the nature and degree of the irregularity.
[14] I turn now to consider the decision in Muravha relied on by the State. In
Muravha, which concerned civil proceedings, portions of the record relating to certain
witnesses were available while certain portions were missing. The SCA remitted the
matter for hearing de novo on the basis that the appellant, who w as unsuccessful in
matter for hearing de novo on the basis that the appellant, who w as unsuccessful in
the trial court , had done everything within his power to secure it. In these
circumstances, the SCA held that the appellant would suffer prejudice if the matter
was not reheard.
Application of the law to the facts
5 S v Naidoo 1962 (4) SA 348 (A) at 353 H (Naidoo)
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[15] Taking into account the decisions of Chabedi and Collier, it is settled that the
stance where the record is incomplete is that the appeal must be upheld and that the
conviction and sentence of the court a quo must be set aside.
[16] In relation to the contentions by the State , that the matter be remitted to the
court a quo to commence de novo, taking into account Naidoo’s case, there is
nothing before this court to suggest that there was any technical irregularity or defect
in the proceedings before the court a quo. There is simply no trial record at all. The
lack of sound is not a technical defect or irregularity. In my view, s 324(c) of the CPA
would only find application, if there was a technical defect or irregularity in the actual
proceedings before the court a quo. No such thing can be gleaned from the
incomplete record before this court.
[17] I am also of the view that Muravha’s decision was a matter pertaining to a civil
trial and a remittal to the trial court for the proceedings to commence de novo was to
the advantage of the appellant , who was unsuccessful before the trial court. In that
case, it was therefore understandable that it was in the appellant’s interest that the
matter be remitted to the trial court.
[18] In casu, the appellant enjoys his constitutional right to a fair appeal, which has
been compromised due to the lack of an adequate record. It would, in my view, be
unfair to remit the matter for hearing to the court a quo for the matter to start de novo
as the lack of record ought not to be laid at the doorstep of the appellant. The lack of
record has not been due to his actions . He is not the custodian of the record. I t will
therefore not be in the interests of justice for the matter to be remitted . The reliance
on s 324(c) of the CPA by the State must therefore fail . Furthermore, if the
proceedings were to commence de novo, the appellant may successfully plead
autrefois convict.
autrefois convict.
[19] In the circumstances, I propose the following order:
1. The appeal is upheld.
2. The conviction and sentence by the court a quo are set aside.
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SINGH J
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I agree
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S HADEBE AJ
CASE INFORMATION
Date of Hearing : 22 May 2026
Judgment Delivered : 22 May 2026
Counsel for the Appellant : Mr E M Chiliza
Instructed by : Legal Aid South Africa
187 Hoosen Haffejee Street
Pietermaritzburg
Ref:
Tel:
Email:
Counsel for the Respondent : Mr Z T Nzama
Instructed by : Director of Public Prosecutions
Pietermaritz Street
Pietermaritzburg
Ref:
Tel: 031 334 5078 / 065 889 3349
Email: ZoNzama@npa.gov.za
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