About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Constitutional Court
SAFLII
>>
Databases
>>
South Africa: Constitutional Court
>>
2016
>>
[2016] ZACC 50
|
|
Schoombee and Another v S (CCT154/16) [2016] ZACC 50; 2017 (5) BCLR 572 (CC); 2017 (2) SACR 1 (CC) (15 December 2016)
Links to summary
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT
154/16
In the matter
between:
PHILLIP DANIËL
SCHOOMBEE
First
Applicant
FREDERICK
JOHANNES
MASSYN
Second
Applicant
and
THE
STATE
Respondent
Neutral citation:
Schoombee and Another v The State
[2016] ZACC 50
Coram:
Nkabinde ACJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J,
Mbha AJ, Mhlantla J, Musi AJ and Zondo J
Judgment:
The
Court
Decided on:
15 December 2016
Summary:
lost
trial record — improper reconstruction process — right to
a fair trial on appeal — adequacy of record
leave to appeal
refused — failure to involve accused in reconstruction —
duty of State and appellant — record
adequate for fair trial
and appeal
ORDER
On appeal from the
Supreme Court of Appeal (dismissing an application for leave to
appeal from the Full Court of the High Court
of South Africa, North
West Division, Mahikeng):
The application for leave to appeal is dismissed.
JUDGMENT
THE COURT (Nkabinde
ACJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J,
Mbha AJ, Mhlantla J, Musi AJ and Zondo J concurring):
Introduction
[1]
This case concerns a lost record of a criminal trial.
The applicants, Mr Phillip Daniël Schoombee and Mr
Frederick
Johannes Massyn, were convicted of murder in the North West
High Court, Mahikeng (High Court), on 2 March 2007. They were
both sentenced to life imprisonment and are currently serving their
sentences. The trial Court (Hendricks J) on 4 August
2011
refused leave to appeal, but on petition the Supreme Court of Appeal
(SCA) on 1 March 2012 granted them leave to appeal to
the Full Court
of the High Court.
[2]
When the applicants sought to appeal, they discovered, after
much searching, that the record of their trial proceedings had been
lost. Instead, the Registrar of the High Court provided them
with a “reconstructed” record. This had been
prepared by the trial Judge on the basis of the notes he had taken
during the proceedings. After some hesitation, the applicants
proceeded to appeal on this record. The first applicant, who at
the close of the State’s case had changed his plea
of not
guilty to guilty, appealed only against his life sentence. The
second applicant appealed against his convictions of
murder and of
assault as well as his life sentence. The Full Court dismissed
both their appeals on 7 February 2013.
[1]
The SCA on 17 May 2013 refused further leave to appeal.
[3]
Before this Court, the applicants seek direct access to
challenge a different aspect of the proceedings. The applicants
do
not press the challenges to the evidence and sentence they raised
before the Full Court. Instead, more radically, they now
say
the criminal process against them was fundamentally flawed, and the
first applicant’s sentence and the second applicant’s
convictions and sentence must be set aside. This is because the
reconstructed record that served before the Full Court was
inadequate. This, they say, was a violation of their
constitutional right to a fair trial.
[2]
Established jurisprudence indicates that, without a trial record,
there can be no appeal – and with no appeal, there
can be no
fair trial. On this basis they now come before us.
[4]
The application was lodged in this Court on 6 July 2016.
The Director of Public Prosecutions for the High Court (DPP)
did not
file opposing papers. The Court on 10 August 2016 directed
him to respond to specific questions about the course
of the
proceedings and the lost record.
[3]
He did so. In addition, the Court requested further information
from the applicants’ attorneys. This included
the guilty
plea the first applicant submitted to the trial Court in terms of
section 112(2) of the Criminal Procedure Act
[4]
when the State closed its case, as well as both applicants’
application for leave to appeal to the trial Court. The
Court
also obtained the full version of the trial Judge’s
reconstruction of the trial proceedings. With this in hand,
the
Court has now decided the application without written submissions or
oral argument.
Background
[5]
On the night of 3 to 4 October 2004, a terrible assault took
place in the vicinity of Paladium and Leyds Streets, Rustenburg.
The assailants were white. Those they assaulted were black.
One of those assaulted died a cruel death. He was
Mr Molatlhegi Motshegwa.
[5]
The person assaulted was Mr Jacob Mokwakwa.
[6]
The Full Court describes the events in detail.
[6]
In short, the applicants encountered two men walking home from
a bar. An altercation ensued. The first applicant’s
guilty plea avers that the deceased threatened to stab the
second applicant. The applicants then chased the deceased
in a bakkie. The second applicant, the passenger, exited
the vehicle. He threatened and struck the deceased.
The
first applicant, the driver, then ran him over – not once, but
twice, the second time by reversing over his prostrate
body.
[7]
Both applicants were charged with murder. The second
applicant was additionally charged with assault with intent to commit
grievous bodily harm for the attack on Mr Mokwakwa.
[8]
In 2008, from prison, the applicants instructed their counsel
to obtain the record of the trial proceedings in order to apply for
leave to appeal. Some time later, in 2009, counsel informed
them that the record appeared to be missing. The applicants,
assisted by the first applicant’s sister, then sent several
letters to the Registrar of the High Court requesting a copy
of the
record. On 8 March 2010, the applicants received a letter from
the transcription company. This informed them
that the record
would be available – but at a cost of R5 230. The
applicants paid this fee. They were told
that a copy of the
record would be available within 10 days. This promise proved
futile. Despite follow up correspondence,
they never received a
copy of the record.
[9]
On 26 April 2010, the applicants sent a letter to the trial
Judge requesting his assistance in obtaining the record. The
applicants
also asked for the matter to be placed before the Court so
that, if the record was unavailable, the Court could issue a
certificate
confirming that reconstruction was impossible. On
10 May 2010, they received a letter from the Registrar to the effect
that
the recordings of the trial were lost and untraceable. The
Registrar attached a copy of a reconstructed record Hendricks J
provided on the basis of his trial notes.
[7]
[10]
The applicants now explain that they initially sought to
challenge this reconstruction and to participate in the
reconstruction
process. However, in the interests of finalising
their appeal and on the advice of their counsel, they decided to
proceed
with their appeal on the basis of the trial Judge’s
notes.
[11]
As already related, the High Court in August 2011 refused
leave to appeal.
[8]
It did so in a very full judgment. The Court concluded that
there was no reasonable prospect of another court arriving
at a
different decision. While the Court addressed the applicants’
arguments concerning the sufficiency of the evidence
against them, it
plainly did not consider it necessary to address the absence of the
original record or the adequacy of the reconstructed
record.
[12]
The applicants’ petition to the SCA likewise makes no
complaint about the sufficiency of the trial Judge’s notes as a
basis for appealing.
[13]
After the SCA granted leave to appeal, the Registrar of the
High Court on 14 August 2012 wrote to the applicants’
attorneys.
The letter confirmed that the original record could
not be traced and that the matter had been proceeding on the basis of
a reconstructed
record. The letter purported to grant the
applicants permission to proceed with their appeal to the Full Court
with this
as the only available record.
[14]
In February 2013, the Full Court dismissed the applicants’
appeals. The applicants challenged their sentences as well
as
the evidence supporting the second applicant’s murder and
assault convictions. But they signally omitted to attack
the
sufficiency of the reconstructed record.
[15]
The Full Court noted that the original record was unavailable
and that the reconstruction was based on the trial Judge’s
notes.
However, considering the Judge’s notes plus his
judgment refusing leave to appeal, the Full Court disposed of all the
issues
on appeal.
Submissions
before this Court
[16]
In their application for leave to appeal, the applicants now
change tack. Rather than challenging the sufficiency of the
evidence
against the second applicant, or the severity of their
sentences, they now directly attack the reconstructed record.
They
submit it was inadequate. Its use on appeal amounted to a
denial of their right to a fair trial. They stress that they
proceeded with their appeal using the reconstructed record only
because they were desperate after years of delay. And, they
say, counsel advised them that on the record as it stood they had
reasonable prospects of success.
[17]
Regardless of their decision, the applicants submit, the Full
Court should, in the interests of justice, of its own accord have
taken up the issue of the record. That Court, the applicants
point out, was well aware that the reconstruction was based only
on
the trial Judge’s notes. The applicants complain,
accurately, that they did not participate in the reconstruction.
They also note, again accurately, that the reconstruction
process was insufficiently transparent. Rather than
unilaterally
reconstruct the record, they say, the trial Judge should
have had the High Court Registrar arrange a date for the parties to
reassemble
in court and jointly undertake the reconstruction.
[18]
As a result of this inadequate process, the applicants now
argue, several issues were not correctly reflected in the
reconstructed
record. It did not include the substance of the
first applicant’s guilty plea. There, he expressly stated
that
the second applicant did not participate in the murder. The
reconstruction also did not record the trial court’s reasons
for the convictions and sentences imposed. Nor did it record
specific findings on the demeanour and credibility of the State
witnesses or cautionary precepts about them.
Discussion
Reconstruction of a trial record
[19]
It is long established in our criminal jurisprudence that an
accused’s right to a fair trial encompasses the right to
appeal.
[9]
An adequate record of trial court proceedings is a key component of
this right.
[10]
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”.
[11]
[20]
If a trial record goes missing, the presiding court may seek
to reconstruct the record. The reconstruction itself is “part
and parcel of the fair trial process”.
[12]
Courts have identified different procedures for a proper
reconstruction, but have all stressed the importance of engaging
both
the accused and the State in the process. Practical methodology
has differed. Some courts have required the presiding
judicial
officer to invite the parties to reconstruct a record in open
court.
[13]
Others have required the clerk of the court to reconstruct a
record based on affidavits from parties and witnesses present
at
trial and then obtain a confirmatory affidavit from the accused.
This would reflect the accused’s position on the
reconstructed
record. In addition, a report from the presiding judicial
officer is often required.
[14]
[21]
The obligation to conduct a reconstruction does not fall
entirely on the court. The convicted accused shares the duty.
When a trial record is inadequate, “both the State and the
appellant have a duty to try and reconstruct the record”.
[15]
While the trial court is required to furnish a copy of the
record,
[16]
the appellant or his/her legal representative “carries the
final responsibility to ensure that the appeal record is in
order”.
[17]
At the same time, a reviewing court is obliged to ensure that
an accused is guaranteed the right to a fair trial, including
an
adequate record on appeal, particularly where an irregularity is
apparent.
[18]
Assessing adequacy
[22]
The DPP contended that the applicants waived their right to a
fair trial regarding participation in the reconstruction process. In
their application to this Court, the applicants note that they
considered participating in reconstructing the record. They
even filed an application to be released on bail pending this
process. However, on the advice of their counsel, they decided
to proceed using the “reconstructed” record the trial
Judge provided. By their own acknowledgement, they thus
chose
not to pursue a reconstruction process.
[23]
After the High Court denied leave to appeal but the SCA
granted it, the applicants proceeded to use this record in their
appeal
to the Full Court. They did not raise concerns about the
record then or, when their appeal failed, in their subsequent
application
to the SCA for leave to appeal.
[24]
The State, in its answering affidavit, contends that the
applicants were “consciously aware” of their right to
participate
in a reconstruction and that they waived it. They
did so, it urges, by choosing to launch their appeal using the trial
Judge’s
“reconstructed” record. As they
acknowledge, the applicants knew they had a right to engage in a
reconstruction
process. They even sought to do so, the State
points out, before changing their minds and deciding to proceed
without exercising
this right.
[25]
Was this a waiver? Perhaps. This Court has
emphasised that waiver of a constitutional right is difficult.
The
bar is high. To waive a right, a party must intentionally
and knowingly abandon it.
[19]
The onus to prove waiver is strictly on the party asserting it –
here, the State.
[20]
Even so, this Court has questioned whether waiver is applicable in
relation to constitutional rights. And it has noted
the
distinction between waiver in the contractual sense and a mere choice
not to exercise a constitutional right.
[21]
[26]
It is not necessary for us now to resolve this question. We
note that the facts here suggest a possible waiver – but
we
find it unnecessary conclusively to determine that the applicants did
waive. Nor, indeed, is it necessary for us to determine
whether
it was possible for them to have done so.
[27]
This is because the applicants had a fair trial, including a
fair appeal. The record of their trial was improperly and
imperfectly
reconstructed. But it was more than adequate to
ensure the applicants exercised their constitutional right of
appeal.
The notes the trial Judge took were unusually full and
detailed. They were not scrappy, telegram-style annotations.
They appear to be a complete narrative account of the evidence led in
the trial. They recorded the witnesses’ evidence
in
chief, as well as their cross-examination. A full picture
emerges from them, not only of the terrible events of the night
of 3
to 4 October 2004, but of what transpired in the trial proceedings
that resulted in the applicants’ convictions and
sentences.
[28]
In
Chabedi
, the SCA, though dealing there with an
incomplete record, explained that a defective record need not be
perfect. It need
only be adequate:
“
[T]he requirement is that
the record must be adequate for proper consideration of the appeal;
not that it must be a perfect recordal
of everything that was said at
the trial. . . . The question whether 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.”
[22]
[29]
Where adjudication of an appeal on an imperfect record will
not prejudice the appellants, their convictions need not be set aside
solely on the basis of an error or omission in the record or an
improper reconstruction process.
[23]
This principle is practical and sensible and just.
[30]
It applies here. The reconstructed record is detailed
and specific. The applicants reviewed this record. They
took the advice of counsel. They, in accordance with that
advice, chose to proceed with their appeal on that record.
Even
if they did not waive their right to participate in reconstruction,
they certainly signified their assent to the substantive
recital
contained in the reconstructed record.
[24]
[31]
On appeal, the Full Court had before it an in-depth and
detailed record that vividly recorded the events in issue as brought
to
life in the trial court. Both the trial Judge and the
applicants had reviewed and endorsed this recital. The record
was also supplemented by the extensive judgment the trial court
produced when it denied leave to appeal.
[32]
The issues on appeal before the Full Court centred on the
trial court’s evaluation of the evidence in convicting the
second
applicant. He argued that the only evidence linking him
to the murder was circumstantial
[25]
and that the trial court failed to apply a cautionary approach to the
single witness, the complainant, whose evidence formed the
basis of
his assault conviction.
[26]
And it erred, he said, by refusing to draw adverse inferences
from the State’s failure to call two additional witnesses.
[27]
Both applicants also contended that the trial court failed to
consider mitigating circumstances in imposing life sentences.
[28]
[33]
That was then. The applicants now urge that the record
was radically defective because it failed to reflect facts and
conclusions
necessary for the fair consideration of these issues on
appeal. They submit that neither the record nor the leave to
appeal
judgment describe the content of the first applicant’s
guilty plea or the second applicant’s response to this plea.
The reconstruction also failed to record the trial court’s
reasons for the convictions and sentences imposed and whether
the
trial court took cautionary rules into account for certain
witnesses. Finally, nothing in the record identifies the second
applicant, they say, as the perpetrator of the assault on
Mr Mokwakwa.
[34]
None of this is persuasive. It is evident from the Full
Court judgment that these complaints did not prevent a full, proper
and just consideration of the appeal. The Full Court in fact
sets out the content of the first applicant’s guilty plea.
Those facts were clearly before it.
[29]
The second applicant was avowedly convicted on the basis of
circumstantial evidence. The evidence damning him is detailed
in the reconstructed record as well as in the trial Judge’s
judgment on leave to appeal. That judgment records that
the
Judge, in convicting the second applicant of assault, approached the
evidence of Mr Mokwakwa, the complainant, with the requisite
caution.
[35]
The Full Court, taking into account all the evidence,
concluded that there was a “clear and unambiguous intention on
the part
of the two, to kill the deceased”.
[30]
It says it was unable to ascertain from the reconstructed record
“whether a cautionary approach was adopted in respect
of
certain witnesses” but concludes that “[n]o inference is
justified however that the trial court did not approach
the evidence”
of Mr Mokwakwa and the other witness “with the necessary
caution”.
[31]
[36]
That conclusion was sound. It is not assailable now.
The Full Court acknowledged that the original case record was
unavailable
and that the reconstructed record did not clearly
indicate whether a cautionary approach was adopted in respect of
certain witnesses.
But it concluded that the trial Judge’s
judgment on leave to appeal indicated that he had made a positive
credibility finding
in the case of those witnesses.
[32]
This is plainly right. The leave to appeal judgment also
addressed the State’s failure to call certain witnesses.
[33]
The Full Court was able to assess independently the legal
consequences of that failure.
[37]
All of this points powerfully to one conclusion: the record
was amply adequate for just consideration of the issues the
applicants
raised on appeal.
Breach of process
in reconstructing the trial record
[38]
None of this detracts from the magnitude of the lapses that
took place in reconstructing the record. The High Court failed
to ensure that the reconstruction process involved both parties. It
was its duty to do so. The loss of trial court
records is a
widespread problem. It raises serious concerns about endemic
violations of the right to appeal. Reconstruction
should not be
the norm in providing appellants with their trial records. But
when reconstruction is necessary, the obligation
lies not only on the
appellant, but indeed primarily on the court to ensure that this
process complies with the right to a fair
trial. It is an
obligation that must be undertaken scrupulously and meticulously in
the interests of criminal accused as
well as their victims.
Leave to appeal
[39]
The applicants style their application as one for direct
access. They ask this Court to adjudicate the fairness of their
trial
in light of the missing record and the improperly reconstructed
record. But what they actually seek is not direct access.
After the Full Court dismissed their appeal, they sought and were
denied leave to appeal to the SCA. Although they now raise
a
new argument about the reconstruction process, this is in substance
not a new application.
[40]
Indeed, as the applicants themselves note, they have exhausted
other legal remedies – and the relief they now seek from this
Court “cannot anymore be considered by another court”.
But, for the reasons set out, the application lacks prospects
of
success, and it would not be in the interests of justice to grant
leave to appeal.
[41]
Presumably because they clothed their application as one for
direct access, the applicants have not sought condonation for the
lateness
of their application. The SCA refused further leave to
appeal on 17 May 2013. The applicants filed this application
more than three years later, on 6 July 2016. They state that,
at some point after the SCA dismissal, they appointed legal
representatives to advise them with regard to further remedies. They
do not provide any further reason for the delay. On
these
grounds too, this application stands to be dismissed.
[42]
But behind the form of the application and condonation for its
lateness, in substance the application must fail because the
applicants
had a fair trial, including a fair appeal.
Order
[43]
The application for leave to appeal is dismissed.
[1]
Schoombee v S
[2013] ZANWHC 11
(Full Court judgment) (Gura J;
Leeuw JP and Landman J concurring).
[2]
Section 35(3) of the Constitution.
[3]
The directions issued on 10 August 2016 read as follows:
“1. The State is directed to file an answering affidavit
responding to the Applicants’ application for leave to appeal,
addressing amongst others:
a) Whether the applicants’ decision to proceed with their
appeal to the Full Court on the basis of the reconstructed record
as
supplied by the trial judge is relevant to their contentions before
this Court;
b) Whether it is still practically possible to undertake a
comprehensive reconstruction of the trial record.
2. The State’s answering affidavit must be filed by no later
than 2 September 2016.
3. Further directions may be issued.”
[4]
51 of 1977. Section 112(2) provides:
“If an accused or his legal adviser hands a written statement
by the accused into court, in which the accused sets out
the facts
which he admits and on which he has pleaded guilty, the court may,
in lieu of questioning the accused under subsection
(1)(b), convict
the accused on the strength of such statement and sentence him as
provided in the said subsection if the court
is satisfied that the
accused is guilty of the offence to which he has pleaded guilty:
Provided that the court may in its discretion
put any question to
the accused in order to clarify any matter raised in the statement.”
[5]
The deceased’s name is nowhere mentioned in the trial Judge’s
reconstruction, the leave to appeal judgment or the
Full Court
judgment. We have taken the deceased’s name from Mr
Schoombee’s handwritten guilty plea and a news
article
recounting the assault, available at
http://www.news24.com/SouthAfrica/News/No-bail-for-racial-killer-20041017.
[6]
Full Court judgment above n 1 at paras 3-25.
[7]
According to the first applicant, this letter stated that “this
reconstructed record by the presiding judge . . . is the
only record
available”. Although the first applicant stated that
this letter was attached as an annexure, it was
not attached to the
filings before this Court.
[8]
Schoombee v S
, unreported judgment of the North West High
Court, Mahikeng, Case No 83/06 (4 August 2011) (leave to
appeal judgment).
[9]
Section 35(3)(o) of the Constitution.
[10]
See
Davids v S
[2013] ZAWCHC 72
at para 13:
“The inability to exercise a right of appeal because of a
missing record is a breach of the constitutional right to a fair
trial and in such circumstances will generally lead to the
conclusion that the proceedings have not been in accordance with
justice and must be set aside.”
Sebothe v S
2006 (2) SACR 1
(T) at para 8:
“The Constitution of the Republic of South Africa, 1996,
provides, inter alia, through section 35, that an accused
person has a right to a fair trial, which includes a right to appeal
or review. If the appeal court or the review court
is not
furnished with a proper record of the proceedings, then the right to
a fair hearing of the appeal or review is encroached
upon and the
matter cannot properly be adjudicated.”
See also
S v
Molaudzi
[2014] ZACC 15
;
2014 (7) BCLR 785
(CC) at para 5:
“It is not necessary to decide whether a delay in appeal
proceedings might also be considered a breach of fair trial rights,
because here the record was eventually properly completed and
available for a fair assessment of the matter on appeal. It
could easily have been otherwise if the compilation of a proper
record became impossible because of a lapse of time.”
[11]
S v Chabedi
[2005] ZASCA 5
;
2005 (1) SACR 415
(SCA) at para
5.
[12]
Gora v S
[2009] ZAWCHC 145
;
2010 (1) SACR 159
(WCC) at para
16.
[13]
See
S v Zenzile
[2009] ZAWCHC 59
;
2009 (2) SACR 407
(WCC)
(
Zenzile
) at para 21:
“What the magistrate should have done, in circumstances such
as in the matter before me, once he had been informed by the
clerk
of the court that a portion of the record could not be found despite
diligent search, is the following: to direct the clerk
of the court
to inform all the interested parties, being the accused or his legal
representative and the prosecutor of the fact
of the missing record;
arrange a date for the parties to re-assemble, in an open court, in
order to jointly undertake the proposed
reconstruction; when the
reconstruction is about to commence, the magistrate to place it on
record that the parties have re-assembled
for purposes of the
proposed reconstruction; the parties to express their views, on
record, that each aspect of reconstruction
accords with their
recollection of the evidence tendered at trial; and ultimately to
have such reconstruction transcribed in
the normal way.”
Mohapi v
Minister of Justice and Correctional Services
[2016] ZANWHC 5
at
para 8:
“The Presiding Regional Court Magistrate . . . shall fix a
date for a hearing, which shall not be later than 30 ordinary
days
from the date of this order, and cause the applicant, and invite his
previous and current defence legal representative (if
any),
prosecutor, and interpreter to attend in open court in order to
jointly undertake a reconstruction of the missing parts
of the
record, where this is feasible. The proceedings shall be
recorded. The Magistrate shall invite those present
to express
their views whether each aspect of the reconstruction accords with
their recollection of the evidence tendered at
trial.”
S v Chokoe
[2014] ZAGPPHC 515;
2014 (2) SACR 612
(GP) at para 9:
“Case law abounds that the reconstruction process must give
effect to the accused’s right to a public trial before
an
ordinary court, his right to be present when being tried, as well as
his right to challenge and adduce evidence.”
[14]
S v Sibelelwana
[2012] ZAWCHC 150
at 9:
“[T]he clerk of the court must obtain an affidavit to prove
the loss of the record if that is the situation. Thereafter
the clerk must obtain affidavits from witnesses and others who were
present at the trial in order to prove the evidence that
has been
adduced. Eventually he will then submit a reconstructed record
to the accused to establish whether he agrees with
it or not. The
accused's response is confirmed by means of an affidavit. A
report concerning the correctness of the
record must also be
obtained from the presiding magistrate.”
[15]
Id. See also
Gora
above n 12 at paras 14 and 50.
[16]
See
Ngidi v S
[2010] ZAKZPHC 10 at para 5, explaining that
“it is the duty of each and every presiding officer to ensure
that a complete
record be sent to the court dealing with the
appeal”.
[17]
Sibelelwana
above n 14 at 10.
[18]
See
S v Zuma
[1995] ZACC 1
;
1995 (2) SA 642
(CC);
1995 (4)
BCLR 401
(CC) at para 16, noting that in the constitutional era,
criminal trials must be conducted in accordance with “notions
of
basic fairness and justice” and that it “is now for
all courts hearing criminal trials or criminal appeals to give
content to those notions”. See also
Baloyi v Member
of the Executive Committee for Health and Social Development,
Limpopo
[2015] ZACC 39;
2016 (4) BCLR 443
(CC) at para 36,
concluding in the context of a review of a CCMA award that “it
was improper of the Labour Court to dismiss
the review without a
proper record of the arbitration proceedings in the face of evidence
that no record existed”.
[19]
See
Mohamed v President of the Republic of South Africa
[2001] ZACC 18
;
2001 (3) SA 893
(CC);
2001 (7) BCLR 685
(CC) at para
62, finding that for a consent to constitute an enforceable waiver,
“it would have to be a fully informed
consent and one clearly
showing that the applicant was aware of the exact nature and extent
of the rights being waived in consequence
of such consent”;
and
Road Accident Fund v Mothupi
[2000] ZASCA 27
;
2000 (4) SA
38
(SCA) at paras 15-7, concluding that “[w]aiver is first and
foremost a matter of intention . . . .
The
knowledge and appreciation of the party alleged to have waived is
furthermore an axiomatic aspect of waiver”.
[20]
Mohamed
id at para 64. See also
Lufuno Mphaphuli &
Associates (Pty) Ltd v Andrews
[2009] ZACC 6
;
2009 (4) SA 529
(CC);
2009 (6) BCLR 527
(CC) (
Mphaphuli
) at para 81 in which
Kroon AJ stated: “The onus is strictly on the party asserting
waiver; it must be shown that the other
party with full knowledge of
the right decided to abandon it, whether expressly or by conduct
plainly inconsistent with the intention
to enforce it.”
[21]
See
Mohamed
id at para 61 at fn 55 and
Mphaphuli
id at
para 216. Kroon AJ in a minority judgment in
Mphaphuli
at para 80 noted that the assumption that the right to a fair
hearing under section 34 of the Constitution may validly be waived
“is in accordance with common law principles regarding waiver
of rights”. The majority judgment of O’Regan
ADCJ
at para 216 specifically reserved the question whether this right
could be waived as “a topic for another day”.
[22]
Chabedi
above n 11 at paras 5-6. In
Machaba v S
[2015] ZASCA 60
;
2016 (1) SACR 1
(SCA) at paras 4-5, the Supreme
Court of Appeal reaffirmed this finding and concluded that:
“[T]he adjudication of this appeal on the record as it stands
will not prejudice either of the appellants. The appellants’
convictions and sentences can, therefore, not be set aside merely on
the basis of the record being incomplete.”
[23]
Machaba
id at paras 4-5.
[24]
Contrast the applicants’ attitude here to
Zenzile
above
n 13 at paras 5-7, 15 and 22. In
Zenzile
, the
Magistrate made a reconstruction on the basis of his trial notes,
and presented this to the accused along with a draft affidavit
for
the accused to sign signifying that the reconstruction accorded with
his recollection of the evidence. The accused
bluntly refused.
On review, the Western Cape High Court noted that:
“[T]he Magistrate reconstructed the missing portion of the
record using his notes made during the course of trial as a
source
for such reconstruction; that the record was reconstructed entirely
in the Magistrate’s chambers; there is no indication,
on basis
of the record forward to this court, if the accused was informed of
the missing portion of the record and of the need
to have the
missing portion of the record reconstructed; there is no indication,
on basis of the record before me, whether the
accused was informed
of his rights arising from the need to have the missing portion of
the record reconstructed; and that when
the accused was presented
with a draft affidavit, which was intended to verify the correctness
and the accuracy of the reconstructed
portion of the record,
the
accused refused to sign the affidavit on the basis that ‘hy
weet niks en het geweier om te teken’
.”
[25]
Full Court judgment above n 1 at paras 25.2.4 and 35-44.
[26]
Id at paras 25.1.1-2.
[27]
Id at paras 25.1.3 and 25.2.2.
[28]
Id at paras 45-55.
[29]
Id at paras 21-23.
[30]
Id at para 42.
[31]
Id at para 26.
[32]
Id at paras 26-7.
[33]
Id at paras 32-4.