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[2026] ZAGPPHC 692
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Sithole and Others v S (Ex-Tempore) (A732/2016) [2026] ZAGPPHC 692 (10 June 2026)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case Number:
A732/2016
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED:
YES
/NO
DATE
10/06/2026
SIGNATURE
In
the matter between:
PATRICK
SITHOLE
First Appellant
ALFRED
OUPA SEUNTJIE MTHINMUNYE
Second Appellant
PIET
DOSKI
MUDAU
Third Appellant
BONGANI
INNOCENT MANDLAZI
Fourth Appellant
and
THE
STATE
Respondent
EX-TEMPORE JUDGMENT
MBONGWE,
J: [MATLAPENG, AJ CONCURRING]
INTRODUCTION
[1]
We have considered the submissions by both
counsel for the Appellant and for the Respondent.
[2]
What stands out and is common cause is that
since the launching of appeal against the conviction and sentence, a
period of approximately
11 years has elapsed as a result of the
record of the proceedings in the court a quo not being capable of the
necessary reconstruction
due,
inter
alia
, the difficulty of locating the
trial Magistrate who has since retired. It is not known exactly when
the trial Magistrate retired
and why the reconstruction of the record
could not be done and completed before his retirement.
[3]
The Court appreciates the submission by
counsel for the State that the matter be struck from the roll.
However, counsel could not
persuade the Court by proffering a
plausible reason against the setting aside of the conviction and
sentence in view of the circumstances
already alluded to precluding
the hearing of the appeal and finalisation of the matter. Nor could
the State present any new facts
that suggest that the record will now
be reconstructed should the matter be struck from the roll and
reinstated in he near future.
[4]
It is an important principle of our law
that finality be brought in any litigious matter, more so where the
freedom of the person
serving a sentence remains infringed and his
constitutional right to liberty as enshrined in the Constitution
infringed.
[5]
This
Court has had regard to the matter of
S
v Motloutsi
[1]
where, in reaching the orders made, the Supreme Court of Appeal
(“SCA”) stated that:
“
The
State must ensure proper records. If they cannot, accused must get
the benefit
.”
[6]
We consequently make the following orders:
1. It is apparent that
the record of the proceedings in the court a quo cannot be
reconstructed;
2.
This Court is unable and has not been able to consider the merits of
the appeal (since 2026) as required by Section 309 of the
Criminal
Procedure Act;
[2]
3.
The right to appeal forms part of the right to a fair trial in terms
of Section 33 (3) of the Constitution;
[3]
4.
In
S
v Steyn
,
[4]
the SCA held that where the record is lost and cannot be
reconstructed, the conviction and sentence must be set aside, unless
a retrial
de
novo
is appropriate. Our view, the Appellant has already served a very
long period of imprisonment and to subject him to a retrial,
would be
to double prejudice.
5. Order, the conviction
and sentence are set aside. The Accused should be released forthwith.
JUDGE MPN MBONGWE
JUDGE OF THE HIGH
COURT
GAUTENG DIVISION
PRETORIA
I AGREE;
ACTING JUDGE MATLAPENG
JUDGE OF THE HIGH
COURT
GAUTENG DIVISION
PRETORIA
APPEARANCES:
For
Appellant:
MB
KGAGARA
Instructed
by:
Legal
Aid South Africa
For the
Respondent:
M
SHIVURI
Instructed
by:
The
State
Date
of Hearing:
10
June 2026
Date
of Ex-Tempore Judgement:
10
June 2026
THIS
JUDGEMENT WAS ELECTRONICALLY TRANSMITTED TO THE PARTIES’ LEGAL
REPRESENTATIVES AND UPLOADED ONTO CASELINES ON 10 JUNE
2026
[1]
1996
(1) SACR58 (A).
[2]
Act
No. 51 of 1977.
[3]
Act
No. 108 of 1996.
[4]
[2009]
ZASCA 152.