About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Constitutional Court
SAFLII
>>
Databases
>>
South Africa: Constitutional Court
>>
2017
>>
[2017] ZACC 44
|
|
Phakane v S (CCT61/16) [2017] ZACC 44; 2018 (1) SACR 300 (CC); 2018 (4) BCLR 438 (CC) (5 December 2017)
Links to summary
Heads of arguments
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 61/16
In the matter
between:
KLAAS LESETJA
PHAKANE
Applicant
and
THE
STATE
Respondent
Neutral citation:
Phakane v S
[2017] ZACC 44
Coram:
Nkabinde ADCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Mbha
AJ, Musi AJ, Madlanga J, Mhlantla J and Zondo J
Judgments:
Zondo J (majority): [1] to [46]
Cameron J
(concurring): [47] to [60]
Froneman J
(concurring): [61] to [63]
Decided on:
5
December 2017
Summary:
[murder]
— [right to a fair trial] — [incomplete trial record] —
[competent verdicts]
[leave to appeal
granted] — [incomplete record infringes fair trial rights] —
[accused to be released]
ORDER
On appeal from the
Full Court of the High Court of South Africa, Gauteng Division,
Pretoria, the following order is made:
1. Leave to appeal is granted.
2. The appeal against the decision of the Full Court of the
Gauteng Division of the High Court is upheld.
3. The order of the Full Court of the Gauteng Division of the High
Court is set aside and replaced with the following:
“(a)
The trial proceedings relating to the appellant as well as the
conviction and sentence of the appellant by the trial
court are
hereby set aside.
(b)
The appellant must be released from prison immediately.”
4. The Registrar of this Court is directed immediately to take steps
to ensure that this judgment is delivered to the Head of the
Kgosi Mampuru II Central Correctional Centre, Pretoria.
JUDGMENT
ZONDO J (Nkabinde
ADCJ, Jafta J, Khampepe J, Mhlantla J, Madlanga J and Musi AJ
concurring):
Introduction
[1]
The applicant is Klaas Lesetja Phakane. He is a prisoner
at Kgosi Mampuru II Central Correctional Centre. He has brought
an application for leave to, in effect, appeal against a decision of
the Full Court of the North Gauteng Division of the High Court
(Full
Court). That decision is a judgment by Molefe J (in which
Roussouw AJ and Davis AJ concurred). The judgment was
given in
the applicant’s appeal against his conviction of, and, sentence
for, murder by Seriti J, sitting in the Circuit
Local Division for
the Northern Circuit District, Polokwane. It was found that he
had murdered Ms Matilda Chuene Boshomane.
The murder was
alleged to have been committed sometime in August 2006. He was
sentenced to 20 years’ imprisonment.
[2]
In the appeal, the State delivered an incomplete record of the
trial proceedings. It was established that the transcript of
the evidence did not contain the evidence of the main state witness,
Ms Martha Manamela. It was accepted that that evidence
could
not be reconstructed. The Full Court held that the absence of
the transcript of Ms Manamela’s evidence in the
appeal record
was not such that the Court could not fairly determine the appeal.
It went on to dismiss the appeal against
conviction but upheld the
appeal in respect of sentence. It reduced the sentence from 20
years’ imprisonment to 15
years.
[3]
If leave to appeal is granted, the applicant seeks to have the
decision of the Full Court that his appeal could be determined
fairly despite the absence of the transcript of Ms Manamela’s
evidence set aside and to have his trial proceedings set aside
in
their entirety. This is on the basis that the failure of the
State to furnish a complete trial record for his appeal constitutes
an infringement of his right to a fair appeal entrenched in section
35(3) of the Constitution.
[4]
The applicant’s contention is that, if he is deprived of
a fair appeal by reason of the State having failed to furnish a
complete
record to enable the Full Court to fairly determine his
appeal, his conviction and sentence cannot stand and should be set
aside.
Before I can consider the application for leave to
appeal, here is the background to the matter.
Background
[5]
The applicant stood trial before Seriti J in the Circuit Local
Division for the Northern Circuit District for the assault and murder
of Ms Boshomane who was his girlfriend. The applicant pleaded
not guilty to both counts. The State led the evidence
of seven
witnesses. One of those witnesses was Ms Manamela who was
also a girlfriend of the applicant at the time of
Ms Boshomane’s
death. Another witness was the applicant’s mother, Mrs
Martha Phakane. In the view
I take of this matter, it is not
necessary to specify all the witnesses who testified at the trial.
[6]
The evidence led at the trial revealed that the applicant and
Ms Boshomane had a history of frequent quarrels which were known to
people around them. It also revealed that during those quarrels
the applicant would sometimes beat Ms Boshomane up.
At a
certain stage the applicant and Ms Boshomane lived together. It
is not clear from the evidence whether, at the time
of Ms Boshomane’s
death, the applicant and Ms Boshomane were still living together.
[7]
The date of Ms Boshomane’s death is not known. Her
decomposed body was found in a veld. It would seem that Ms
Boshomane was last seen on 19 or 20 August 2006
when she was with the applicant and the two of them were
quarrelling.
Unfortunately, the police investigation of Ms
Boshomane’s death does not appear to have been conducted
properly. There
is no reason why the trial court should not
have been told how far from the applicant’s home and Ms
Boshomane’s home
the place was where the body was found.
The trial court also appears not to have been told who discovered Ms
Boshomane’s
decomposed body in the veld and how that person
came to be the one to discover the body. It would appear that
the discovery
was not the result of a pointing out by the applicant
because, if it was, the trial Judge would have said so in his
judgment.
[8]
Because of the state of decomposition in which Ms Boshomane’s
body was discovered, the cause of her death could not be
established.
None of the witnesses who testified at the trial
said that he or she witnessed Ms Boshomane’s killing or saw the
applicant
attack her on 19 or 20 August 2006. Furthermore, no
evidence of anybody from her family was led as to when Ms Boshomane
had
last been seen at her home.
[9]
Ms Manamela had made a statement to the police on 2 September
2006. That appears to have been a week or so after the
discovery
of the body in the veld. A warning statement had also
been taken by the police from the applicant. The Full Court
was to later suggest in its judgment that the applicant’s
warning statement was or may have been a confession by the applicant
to a peace officer. However, a reading of the trial court’s
judgment reveals that the trial court did not make any
reference
whatsoever to any warning statement or confession by the applicant.
[10]
It is appropriate to refer to Ms Manamela’s statement of
2 September 2006. Her statement was quoted in full in the
judgment
of the trial Judge. It read:
“On Sunday 20 August 2006 at about 10:00 Klaas Phakane of
Washbank came to my home. He is the father of my two kids.
On his arrival he told me that he had a fight with Tilly Boshomane of
Kordon. I asked him why they fought and told me that
after he
told her that our child is sick, Tilly wished that the child should
die. He further told me that he assaulted her
with a waist
belt. Further he told me that after he assaulted her he took
her to Kordon and left her in the grazing field
next to her home. I
asked him why he left her in the grazing field and he said to me that
he wanted her to go home. He
did not want to take her to her
home. The same Sunday he returned home at Washbank. On
Monday 21 August 2006 at about
17:00 Klaas came to my home. On
his arrival he told me he was at Tilly’s home and she was not
at home. He even
found her younger brother whom he asked where
Tilly is and the child told him that she never returned home.
He further told
me that he even went to the grazing field where he
left her but could not find her. During the week he came to my
home and
told me that he went to Tilly’s home where he found
her and told her about their fight and the fact that she is nowhere
to
be found.”
[1]
[11]
It is also necessary to refer to Ms Manamela’s evidence
in court. It was summarised by the trial Judge in his judgment
as follows:
“At the end of July or August 2006 when she was at her parental
home, accused visited her at her parental home where she
had gone to
stay as she had just given birth to a child. It was a Sunday
morning when accused came to see her. She
was carrying a young
child and the accused instructed her to take the child to the back
room as he, the accused, does not want
to come in close proximity of
the child. She took the child to the back room and accused told
her that they must go out of
the yard as he does not want her family
members to hear what he is going to tell her.
They went outside the yard and outside the yard the accused told her
that he has killed the deceased in this matter. She
asked him
why he killed her and he did not reply. He further told her
that he wants to throw the corpse into a pit toilet
and she suggested
that he must take the corpse to a place where the deceased’s
relatives can find it. At about 19:00
the accused left for his
home and said to her that he is going to take the corpse and throw it
in the veld where people can see
it. At about midnight the
accused came back to her carrying a school bag which has a white
curtain inside. The curtain
had blood stains. There was
another piece of cloth which he said he used it to clean and carry
the corpse of the deceased
to the veld. He stayed for a while
and later left for his home. Shortly before the incident the
accused was staying
with the deceased at his home.”
[2]
[12]
After mentioning certain features of Ms Manamela’s
evidence, which I mention later in this judgment, the trial Judge
correctly
pointed out that Ms Manamela’s evidence in court
differed from the statement she had made to the police on 2 September
2006. The trial Judge pointed out that in that statement
Ms Manamela had said that the applicant had come to her on
Sunday 20 August 2006. He then said that 20 August 2006 was the
date which he accepted as the date on which the applicant
came to see
Ms Manamela.
[13]
The trial Judge referred to Ms Manamela’s evidence that
she had advised the applicant to leave the corpse at a place where
Ms
Boshomane’s relatives could find it. Immediately after
that, the trial Judge pointed out that this evidence was
“consistent
with the place where the corpse was found as contained in the
admitted annexure B being the sketch plan, key
and photographs”.
[3]
[14]
I pause here to make two points about this statement by the
trial Judge. The first is that, in accepting that it was on 20
August 2006 when, according to Ms Manamela’s evidence in
court, the applicant visited her, the trial Judge was accepting
that
version of Ms Manamela that was in her statement of
2 September 2006. In effect he was rejecting Ms
Manamela’s
version given in court in regard to when the
applicant came to see her. In her statement she said that he
came to her on
20 and 21 August 2006 whereas in her evidence in court
she said that he came to her at the end of July or August 2006. The
trial Judge gave no reason for preferring the version in the
statement on this aspect and rejecting by implication the version
given in court on this aspect.
[15]
The second point is that, in pointing out that Ms Manamela had
testified that she had advised the applicant to throw the corpse
where the deceased’s relatives could find it, the trial Judge
was referring to evidence that Ms Manamela gave in court that
was not
contained in her statement of 2 September 2006. In other words,
in regard to one aspect the trial Judge preferred
the version
contained in Ms Manamela’s statement and in regard to another
aspect, he preferred Ms Manamela’s version
given in court.
[16]
The trial court found the applicant guilty of murder but
acquitted him of assault. It said that there was not enough
evidence
to justify a conviction on the charge of assault. It
found that there were no substantial and compelling circumstances
justifying
a departure from the prescribed minimum sentence for
murder, namely, 15 years. Instead, it found that there were
circumstances
which justified imposing a longer sentence of
imprisonment than the prescribed minimum. The Court then
imposed 20 years’
imprisonment. In convicting the
applicant of murder, the trial court relied on circumstantial
evidence. It could not
say how the applicant had carried out
the murder.
[17]
Ms Manamela’s evidence played a decisive role in the
trial court convicting the applicant of Ms Boshomane’s murder.
There was also evidence of some witnesses who testified about the
frequent quarrels that the applicant and Ms Boshomane used to
have,
one or two of which may have involved the applicant assaulting Ms
Boshomane in the past. In my view, this evidence
played an
insignificant role in the court convicting the applicant of the
murder. The evidence that was treated as crucial
was that of Ms
Manamela.
[18]
The trial Judge’s finding that the applicant was guilty
of murder was based largely on the certain parts of Ms Manamela’s
evidence. Those parts were that the applicant had in effect
told Ms Manamela that he had killed Ms Boshomane and that she
had
advised him not to “throw” the corpse into a pit toilet
which he had said he intended doing. Another part
was that she
had advised him to throw the corpse where Ms Boshomane’s
relatives would find it and that the corpse had been
found in the
veld. The trial Judge regarded the fact that the corpse was
discovered in the veld as corroborating Ms Manamela’s
version
that the applicant had visited her on 20 August 2006; that
he had told her that he had killed Ms Boshomane and
that she had
suggested to him that he should throw the corpse where the relatives
would find it. The trial court held that
the only inference
that could be drawn from the facts was that the applicant had
murdered Ms Boshomane.
Full Court
[19]
The applicant appealed to the Full Court against his
conviction. As already indicated, the State delivered an
incomplete record
of the trial proceedings. The transcript of
the trial proceedings did not include Ms Manamela’s evidence.
The
tapes containing the evidence led at the trial were
missing. There was no transcript of that evidence. Also
missing
were the warning statement that the applicant was said to
have made to the police as well as the statement that Ms Manamela had
made to the police on 2 September 2006. However, the absence of
the latter statement did not present any difficulty because
the trial
Judge had quoted it in full in his judgment. It was common
cause that all reasonable attempts had been made to
reconstruct the
missing evidence but these had come to naught.
[20]
An issue that arose in the appeal was whether, in the absence
of the missing evidence, the Full Court could determine the appeal
fairly. If it could not do so, this would mean that the
applicant’s right to a fair appeal entrenched in section 35(3)
of the Constitution had been infringed. Section 35(3) reads:
“Every accused person has a right to a fair trial, which
includes the right—
. . .
(o) of appeal to, or review by, a higher court.”
If the Full Court
could determine the appeal fairly, the applicant’s right to a
fair appeal would not have been infringed.
[21]
After hearing argument, the Full Court held that the
applicant’s appeal could be determined fairly despite the
incomplete
record. It then proceeded to consider the appeal and
concluded that the applicant had been properly convicted of murder.
It, accordingly, dismissed the applicant’s appeal against
conviction. In respect of the appeal against sentence, the
Full
Court upheld the appeal and reduced the sentence to 15 years’
imprisonment which it antedated to 15 October 2009, the
date of
sentence.
[22]
With regard to the incomplete record, the Full Court said
that—
“[a]lthough the evidence and statement of Manamela [are]
missing, the court
a quo
did not rely solely on her evidence
in order to convict the appellant. The trial court considered
the evidence in totality
in order for it to make a finding that the
appellant was guilty. The learned Judge also quoted the missing
statement in full
in his judgment. I am satisfied that the
nature of the defects in the record are not so serious that a proper
consideration
of the appeal is not possible. I am, therefore,
of the opinion that the appellant will not be prejudiced by the
[ir]regularity
occasioned by the failure to reconstruct the record
and that the record before us is adequate for a fair and meaningful
adjudication
of this appeal.”
[4]
In this Court
Jurisdiction
[23]
If we grant the applicant leave to appeal, the issue for
determination in the appeal will be whether the applicant’s
right
to a fair appeal entrenched in section 35(3) of the
Constitution has been infringed in that the applicant is deprived of
an appeal
because the State has been unable to deliver a complete
record of the trial proceedings. That is a constitutional
matter.
Accordingly, this Court has jurisdiction.
Leave to appeal
[24]
The question raised in this matter is an important one.
That is whether the State’s failure to deliver a complete trial
record to the Full Court in circumstances where the missing evidence
cannot be reconstructed has infringed the applicant’s
right to
a fair appeal entrenched in section 35(3) of the Constitution.
Furthermore, if this Court does not entertain this
matter, the result
may be that a possibly innocent person may continue to be
incarcerated for a number of years whereas, if we
entertain the
matter, we may find that the applicant’s right to an appeal has
been infringed and he should be released from
prison. There are
reasonable prospects of success for the applicant. Therefore,
it is in the interests of justice that
leave to appeal be granted.
The appeal
[25]
The matter is decided without oral argument. The parties
were directed to deliver written submissions. The Pretoria Bar
Council provided the applicant with counsel at the request of the
Court. We are indebted to counsel for their assistance.
[26]
The question for determination is whether the absence in the
appeal record of a transcript of Ms Manamela’s evidence had the
effect that the Full Court could not fairly determine the applicant’s
appeal and, if it could not, what the effect thereof
is.
Counsel for the applicant submitted that the absence of the
transcript or tapes of that evidence meant that the applicant’s
appeal could not be determined fairly and that the effect thereof was
that the applicant’s conviction and sentence should
be set
aside. Counsel for the respondent adopted the same attitude
that was adopted by the Full Court. He submitted
that the
absence of the transcript and tapes of that evidence did not mean
that the applicant’s appeal could not be determined
fairly.
He submitted that the trial Judge had relied on the totality of the
evidence before the Court and not just that of
Ms Manamela alone.
[27]
In order to properly consider the issue before us, it is
necessary to examine how the trial court came to the conclusion that
the
applicant was guilty of murder and what an appeal court would
require in order to determine the appeal fairly. Earlier on
I
quoted the statement that Ms Manamela made to the police on
2 September 2006 as found in the trial court’s
judgment
as well as the trial court’s summary of Ms Manamela’s
evidence. It is not necessary to quote those again.
[28]
After summarising Ms Manamela’s evidence, the trial
Judge pointed out that under cross-examination Ms Manamela was
referred
to the statement she had made to the police on 2 September
2006. He then quoted the statement and recorded the evidence of
the next witness, Ms Paulina Motheba, without saying what questions
were put to Ms Manamela under cross-examination about
her
evidence as a whole and in particular about the contents of her
statement to the police.
[29]
The next time the trial Judge said anything about Ms Manamela
or her evidence in his judgment was when he mentioned certain
features
of the evidence she gave in court. Those features
included that Ms Manamela said that—
(a) the applicant came to her home on a Sunday morning and told her
that he had killed Ms Boshomane;
(b) the applicant had said that he wanted to throw the corpse into a
“pit toilet”;
(c) she suggested to the applicant that he should rather put the
corpse where Ms Boshomane’s relatives could find it;
(d) on the same day the applicant came back at night carrying a
“school bag” and that “school bag”
had a
blood-stained “curtain” inside; and
(e) on his return to Ms Manamela’s home in the night, the
applicant told Ms Manamela that he had “thrown”
the
corpse in the veld.
[5]
[30]
The trial Judge also referred to the evidence of other
witnesses that did not show that the deceased had died as a result of
anything
done by the applicant. Thereafter, the trial Judge
reverted to Ms Manamela’s evidence and said:
“As a result of the known and accepted facts in this case, my
view is that the court can accept the evidence of Ms Manamela
that
the accused came to her on Sunday 20 August 2006 and informed
her that he had killed the deceased and that he later threw
the
corpse in the veld as suggested by her.”
[6]
This passage
contains the fundamental finding on which the trial court based its
conviction of the applicant.
[31]
As already indicated one of the witnesses who had been called
by the State against the applicant was his mother. She had
testified
that on 22 August 2006 the applicant had telephoned her and
asked her to come back home as he had fought with, and injured, his
girlfriend. According to the trial court’s judgment, her
evidence was that she asked him how he had injured Ms Boshomane
and
the applicant told her that he had left Ms Boshomane at home but,
when he came back, she was not at home. Apparently,
the
deceased’s corpse was found about a week after the applicant’s
call to his mother.
[32]
The trial Judge said that the applicant denied having
telephoned his mother on 22 August 2006 and informed her that he had
fought
with, and injured, the deceased. The trial Judge pointed
out that under cross-examination the applicant said that he had told
his mother that he had quarrelled with the deceased. The trial
Judge then said:
“I have no doubt in my mind that the version of the accused is
false and same should be rejected. The accused is not
a
reliable witness and the Court cannot rely on his evidence.”
[7]
He pointed out that
the evidence of the applicant’s witness did not take the
applicant’s case any further. Thereafter,
the trial Judge
said:
“Besides the fact that Ms Manamela testified that the accused
told her that he had killed the deceased, the proven facts
in this
case invite an inference that the deceased was killed by the
accused. The said inference in my view is the only inference
that can be drawn from the facts of the case.”
[8]
The trial court then
went on to convict the applicant of Ms Boshomane’s murder.
[33]
It is remarkable that the trial court said nothing in its
judgment about the discrepancy between Ms Manamela’s evidence
in
court and the contents of her statement of 2 September 2006
to the police. In its judgment, the trial court also did
not
say which parts of Ms Manamela’s evidence in court the
applicant admitted and which ones he disputed nor did it say which
parts of Ms Manamela’s statement of 2 September 2006 the
applicant admitted and which ones he denied. The judgment
of
the trial court does not even say whether the defence or the Court
itself asked Ms Manamela why this critical part of her
evidence
was not in her statement and how she explained this conflict if she
did provide an explanation. The trial court
also did not take
into account the fact that, when Ms Manamela made her statement as at
2 September 2006, she was still in
a romantic relationship with
the applicant but, when she testified in court, the two had broken
up.
[34]
In one of the two instances Ms Manamela may have been
dishonest. If she was dishonest when she made the statement on
2 September
2006, she may have acted dishonestly in order to protect
her boyfriend. If she was dishonest when she gave evidence in
court,
she may have been vindictive against the applicant because
they had broken up. In either case it is necessary to know
whether
Ms Manamela was confronted with this conflict between her
evidence in court and the contents of her statement and to see what
explanation,
if any, she gave for it and whether her explanation was
an acceptable one.
[35]
In the absence of a transcript of the trial proceedings or any
reconstruction of the record of the trial proceedings, an appeal
court could not know whether Ms Manamela ever explained the
conflict and how she explained it. Without knowing whether
Ms
Manamela ever explained this conflict between her evidence in court
and her statement to the police, an appeal court would never
be in a
position to determine the appeal fairly. This is so because,
without the missing evidence, the appeal court would
not know whether
Ms Manamela’s evidence that the applicant told her that he
killed Ms Boshomane, that he said to her he intended
to throw the
corpse into a pit toilet and that she suggested that he throw it
where Ms Boshomane’s relatives could find the
corpse should be
believed.
[36]
For its conclusion that the accused was guilty of murder, the
trial court did not rely upon the statement by Ms Manamela in court
that at about midnight on the day on which the applicant had visited
her, the applicant returned to her and this time he was carrying
a
school bag which had a “white curtain inside” and the
“curtain” had blood stains. This evidence
is also
not in Ms Manamela’s statement of 2 September 2006
and, in context, it implicated the applicant in Ms Boshomane’s
murder. Again, in its judgment the trial court did not say
whether Ms Manamela was confronted with the conflict in this respect
between her evidence in court and her statement of 2 September 2006.
That was a glaring omission on the part of the trial court.
[37]
If the transcript of the trial proceedings was available, an
appeal court would have been able to establish whether Ms Manamela
was confronted with the conflict and whether she proffered an
explanation for it and whether the explanation was acceptable.
I do not think that an appeal court would be able to do justice to
the applicant’s appeal without knowing whether Ms Manamela
was
confronted with this conflict and what explanation, if any, she gave
for it. An appeal court would not be able to properly
evaluate
the trial court’s decision to prefer Ms Manamela’s
evidence to that of the applicant without knowing this.
It is
difficult to understand how the trial court made the finding to
prefer Ms Manamela’s evidence to that of the applicant
without
dealing with this obvious and material conflict between her evidence
and her statement. It is equally difficult to
understand how
the Full Court could conclude, as it did, that the applicant’s
appeal against his conviction could be properly
and fairly determined
in the absence of an adequate transcript of the trial proceedings or
a reconstructed record covering Ms Manamela’s
evidence.
The Full Court said that the trial court had not relied solely on Ms
Manamela’s evidence to justify its conviction
of the applicant
of the murder but on the totality of the evidence before the Court.
However, what the Full Court failed
to appreciate is that Ms
Manamela’s evidence was the decisive evidence which led to the
trial court convicting the applicant.
There is no doubt that,
without Ms Manamela’s evidence in court, the trial court could
not have convicted the applicant.
[38]
The failure of the State to furnish an adequate record of the
trial proceedings or a record that reflects Ms Manamela’s full
evidence before the trial court in circumstances in which the missing
evidence cannot be reconstructed has the effect of rendering
the
applicant’s right to a fair appeal nugatory or illusory.
Even before the advent of our constitutional democracy,
the law was
that, in such a case, the conviction and sentence or the entire trial
proceedings had to be set aside. In
S v Joubert
[9]
the then Appellate Division of the Supreme Court said:
“If during a trial anything happens which results in prejudice
to an accused of such a nature that there has been a failure
of
justice, the conviction cannot stand. It seems to me that if
something happens, affecting the appeal, as happened in this
case,
which makes a just hearing of the appeal impossible, through no fault
on the part of the appellant, then likewise the appellant
is
prejudiced, and there may be a failure of justice. If this
failure cannot be rectified, as in this case, it seems to me
that the
conviction cannot stand, because it cannot be said that there had not
been a failure of justice.”
[10]
[39]
As to when it can be said that an incomplete record will
result in the infringement of an accused’s right to a fair
appeal,
in
S v Chabedi
[11]
the Supreme Court of Appeal said:
“[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.”
[12]
This passage was
quoted with approval by this Court in
Schoombee
.
[13]
[40]
In the present case the Full Court did not have before it a
record on the basis of which it could fairly assess whether the trial
court’s conviction of the applicant was correct. The
trial record available to the Full Court was simply not adequate
for
a proper consideration of the applicant’s appeal.
Therefore, the applicant’s right of appeal was frustrated
by
the fact that material evidence was missing from the record.
Conclusion
[41]
In the light of all the above I conclude that the Full Court
was wrong to hold that the applicant’s right to a fair appeal
entrenched in section 35(3) of the Constitution had not been
infringed by the State’s failure to ensure that an adequate
record of his trial proceedings was available for his appeal.
In my view, his right to a fair appeal has been so compromised
that
his appeal could not be fairly determined. That being the case,
the proper remedy is to set aside the trial proceedings
in their
entirety.
Should we convict
the applicant of assault?
[42]
I have read the judgment by my Colleague, Cameron J (second
judgment), in which he concludes that the applicant should be
convicted
of assault as a competent verdict for murder. For
reasons I set out below, I am unable to agree that the applicant may
be
convicted or should be convicted of assault as a competent verdict
in the present case.
[43]
Assault is a competent verdict for murder only if there is a
link between the assault and the charge of murder. The second
judgment accepts that the charge of murder and that of assault were
based on separate incidents. The assault relied upon
is alleged
to have taken place on 20 August 2006. There is no basis in the
record for this latter statement. That there
must be a link
between the factual basis of the main count and the competent verdict
means that the assault must at least have
been part of the
actus
reus
on which the charge of murder was based. In this case
the cause of Ms Boshomane’s death is unknown. If we do
not know the cause of the deceased’s death, we cannot know what
verdict would be competent to the charge of murder.
[44]
If the two are separate incidents and assault is not part of
the conduct on which the charge of murder was based, then one cannot
speak of convicting the accused of assault as a competent verdict for
the charge of murder. In that case, if there is enough
evidence
to prove assault, the accused may be convicted of assault as a
stand alone count and not as a competent verdict for
the charge
of murder. An example may help to explain this. Last year
X physically assaulted Y but Y did not die and
this year X put some
substance in Y’s food and, after some time, Y died. If X
is charged with the murder of Y on the
basis that the substance he
put in Y’s food was poison and that poison killed Y but later
it is found that that substance
was not poison and could not have
killed Y, X cannot be convicted of assault as a competent verdict for
murder. He may be
convicted of that assault as a separate
count. These are two separate incidents. There is no link
between the assault
of last year and the charge of murder.
[45]
Lastly, it seems to me that the State will be entitled to
recharge the applicant with the murder of Ms Boshomane after we have
handed
down this judgment setting aside the trial proceedings.
However, if we convict the applicant of assault as a competent
verdict
for murder, the State would be precluded from recharging the
applicant with murder. I think we should not close that door.
Once this judgment has been handed down, it will be incumbent upon
the National Prosecuting Authority to consider and decide whether
the
applicant should be recharged with murder.
Order
[46]
The following order is made:
1. Leave to appeal is granted.
2. The appeal against the decision of the Full Court of the
Gauteng Division of the High Court is upheld.
3. The order of the Full Court of the Gauteng Division of the High
Court is set aside and replaced with the following:
“(a)
The trial proceedings relating to the appellant as well as the
conviction and sentence of the appellant by the trial
court are
hereby set aside.
(b)
The appellant must be released from prison immediately.”
4. The Registrar of this Court is directed immediately to take steps
to ensure that this judgment is delivered to the Head of the
Kgosi Mampuru II Central Correctional Centre, Pretoria.
CAMERON J (Mbha AJ
concurring):
[47]
Our sad duty in this case is to
vacate Mr Phakane’s conviction of murdering Ms Boshomane,
his girlfriend, on the ground
that the trial court record before the
Full Court, which heard his appeal and dismissed it, was
materially incomplete and
that his constitutional right to an appeal
was thus violated. The first judgment, by Zondo J,
explains why we are obliged
to do that. I concur in the outcome
acquitting Mr Phakane of murder. But I do not agree that
this means Mr Phakane
can walk away free of any conviction.
In my view, Mr Phakane must be convicted on a charge of assault
as a competent
conviction on the main charge of murder.
[48]
Mr Phakane must be acquitted of
murder because the evidence available to the Full Court in the record
before it did not prove
beyond a
reasonable doubt
that he committed the
crime alleged.
[14]
But the fact that the evidence was not sufficient to prove
that Mr Phakane murdered Ms Boshomane does not mean that he
should
walk away scot-free. He should be convicted of the
charge of assaulting Ms Boshomane that was a competent verdict
on
the murder charge of which we now acquit him.
[15]
[49]
At his trial before Seriti J, Mr
Phakane faced two separate charges – one of assault and a main
charge of murder. The
two charges related to two separate sets
of events. The assault charge related to incidents occurring
between 16 and 20 August 2006.
Mr Phakane
stood accused on this charge of a sustained series of assaults on
Ms Boshomane. The murder charge was based
on allegations
involving a particular incident of assault, which culminated on or
about 20 August 2006, when Ms Boshomane
was brutally
killed.
[50]
The trial court acquitted Mr Phakane
of the separate, preceding, charge of assault – but it
convicted him on the main charge
of murder. On this, he was
granted leave to appeal to the Full Court. Before that Court,
the only issues were his conviction
of murder and the sentence
imposed for that conviction.
[51]
Though a portion of the trial record
was lost, the Full Court was provided with the evidence
of Ms
Paulina Motheba,
[16]
Mr Elias Bango,
[17]
and Mr Johannes Kgone
.
[18]
Of particular importance, the Full Court had before it the evidence
of Mrs Martha Phakane, Mr Phakane’s mother.
She
testified that he had said to her
that “she must come
back home as he has fought with his girlfriend and he has injured
her. She asked him how he injured
her and she further told him
that if he has injured her he must take her to the hospital or to the
clinic”
.
[19]
The trial court rightly accepted Mrs Phakane’s evidence.
It was of impeccable pedigree and reliability.
The trial
court drew the compelling inference that this assault – the
assault that culminated in Ms Boshomane’s
death –
was of a different nature from previous assaults.
[20]
[52]
Evidence available to the Full Court also indicates
that Mr Phakane was seen assaulting Ms Boshomane, that he accused her
of cheating
on him and referred to her demeaningly as a prostitute,
that he threw a stone at her, and that he threatened to kill her.
The
evidence also establishes that Ms Boshomane was last seen
sometime on 20 August 2006 and that her body was found in a veld
on 31 August 2006.
[53]
Before the Full Court, Mr Phakane
disputed his conviction on the murder charge. But he himself
conceded that, were his appeal
against that charge to succeed, a
conviction of assault would be competent on the charge of murder.
Molefe J for the Full
Court records Mr Phakane’s concession
thus:
“
It
is argued by appellant’s counsel that the remaining evidence of
the state witnesses only serves to prove that the appellant
had
assaulted the deceased with a belt. This evidence of assault
was admitted by the appellant but only justified a conviction
on the
competent verdict of assault.”
[21]
[54]
Here, there is more than enough evidence to prove beyond a
reasonable doubt that Mr Phakane assaulted Ms Boshomane on or around
20 August 2006. We should
convict Mr
Phakane, now, of assault as a competent verdict on the murder charge
for which we must acquit him. That would not
be to convict him
of the charge of assault for alleged actions between 16 and 20 August
2006 of which the trial court acquitted
him. It would be to
convict him, separately, of assault on the murder charge.
Indeed,
that the trial court acquitted Mr Phakane on the
separate charge of assault is irrelevant to determining his guilt of
assault
on the separate charge of murder, of which assault is a
competent verdict.
[55]
The purpose of the competent verdict is to provide the state
with the ability to prosecute an individual for a lower level crime
–
which the evidence establishes – in the event that the more
serious crime cannot be proven beyond reasonable doubt.
[22]
[56]
In this instance, the evidence before the Full Court proves
beyond reasonable doubt that Mr Phakane assaulted Ms Boshomane on or
about 20 August 2006. There is strong circumstantial evidence –
namely, the fact that this was the last time that she
was seen –
to indicate that the assault was related to her murder. Zondo
J’s argument requiring a direct link
is misplaced.
[23]
Any stronger link between the assault and the murder would have
allowed the Full Court to properly uphold the murder charge.
[57]
Given the facts the trial court
accepted, and the portions of the record available to the Full Court
and to us on appeal, a competent
verdict of assault on the charge of
murder should be entered.
[58]
It may be true that, if we were to
do this, the State would not be able to re-institute the murder
charge against Mr Phakane.
But the prospect of that happening,
so many years after the murder, is small, especially since Mr Phakane
has already spent more
than eight years in prison, and the location
and wellbeing of the potential witnesses against him, should he ever
be re-charged,
must be very uncertain.
[59]
This hardly reduces the sadness of
this case. Even if we were to convict Mr Phakane of assault,
any sentence we imposed for
it would be far less than he has already
served on the murder conviction, which we must now set aside.
His time already served
in prison means that he must be released
anyway. A competent conviction of assault would make no
practical difference to
Mr Phakane. And it would bring no
justice to his victim, Ms Boshomane, nor to her mother and her loved
ones.
[60]
The only difference is that the
conviction of assault would be entered in and reflected on Mr
Phakane’s criminal record.
It would be known and recorded
that he grievously wronged Ms Boshomane. And that the justice
system held him to account at
least on that. Some small
justice, in this way, may have emerged from what duty requires us to
do today.
FRONEMAN
J (concurring):
[61]
I have read the judgments of Zondo J and Cameron J. It
seems to me that the crucial issue here is whether the missing
evidence
taints the record entirely – with the result that the
appeal must succeed but that a retrial might be possible – or
only partly, in which case a competent verdict of assault is still
possible on the remaining part of the record. This is
an
evaluative assessment, open to reasonable disagreement.
[62]
I tend towards the view that the missing evidence is crucial
to the determination of the applicant’s guilt or innocence on
all the charges. Zondo J accepts that this does not mean that a
retrial is not possible, but elects not to order that the
matter be
remitted to the trial court. I fail to see why this should not
be done. Justice to the deceased and her family
demands it.
If circumstances have changed to the extent that further prosecution
has become practically unrealistic or impossible,
then that can be
dealt with appropriately in the High Court. But that should not
be assumed by us.
[63]
I thus concur in granting leave and upholding the
appeal, but would also order that the matter be remitted to the High
Court for
an investigation into whether a retrial should proceed.
For the Applicant: M
Malowa and C Mavundla instructed by Pretoria Law Society of Advocates
For the Respondent:
AJ Rossouw and DWM Broughton instructed by the Office of the Director
of Public Prosecutions
[1]
S v Phakane
, unreported judgment of the Circuit Local Division
for the Northern Circuit District, Polokwane, Case No CC26/07 (14
October 2009)
(Trial Court judgment) at 3-4.
[2]
Id at 2 (lines 24-5) and 3 (lines 1-20).
[3]
Id at 12.
[4]
Phakane v S,
unreported judgment of the High Court of South
Africa, Gauteng Division, Pretoria, Case No A186/2013 (3 November
2014) (Full
Court judgment) at para 15.
[5]
Trial Court judgment above n 1 at 11 (lines 24-5) and 12 (lines
1–2).
[6]
Id at 13 (lines 3-7).
[7]
Id (lines 13-4).
[8]
Id (lines 18-20).
[9]
S v Joubert
[1990] ZASCA 113; 1991 (1) SA 119 (A).
[10]
Id at 126 (quoting
S v Marais
1966 (2) SA 514
(T) at 517).
[11]
S v Chabedi
[2005] ZASCA 5; 2005 (1) SACR 415 (SCA).
[12]
Id at paras 5-6.
[13]
Schoombee v S
[2016] ZACC 50
;
2017 (2) SACR 1
(CC);
2017 (5)
BCLR 572
(CC) at para 28.
[14]
Though the issue in this Court and in the Full Court was the
sufficiency of evidence available on appeal, questions arose about
the sufficiency of the evidence at trial. The first judgment
observes that the trial court relied heavily on Ms Manamela’s
evidence without saying anything about the discrepancy between her
statement to the police and her testimony. In the Trial
Court
judgment above n 1 at 12, Seriti J noted: “Her evidence in
court differs from the statement she made to the police,
so her
evidence must be approached with caution.” Molefe
J quoted this in the Full Court judgment above n 4
at para 18.
[15]
Section 258
of the
Criminal Procedure Act 51 of 1977
reads:
“If the evidence on a charge of murder or attempted murder
does not prove the offence of murder or, as the case may be,
attempted murder, but—
(a) the offence of culpable homicide;
(b) the offence of assault with intent to do grievous bodily harm;
(c) the offence of robbery;
(d) in a case relating to a child, the offence of exposing an
infant, whether under a statute or at common law, or the offence
of
disposing of the body of a child, in contravention of section 113 of
the General Law Amendment Act [46 of 1935], with intent
to conceal
the fact of its birth;
(e) the offence of common assault;
(f) the offence of public violence; or
(g) the offence of pointing a fire-arm, air-gun or air-pistol in
contravention of any law,
the accused may be found guilty of the offence so proved.”
[16]
Ms Motheba testified, Trial Court judgment above n 1 at 4-5, that—
“on Saturday
16 August 2006 she was at the church where she met the deceased.
Deceased ha[d] informed her that accused
ha[d] assaulted her
after falsely accusing her of infecting him with venereal disease.
Deceased had a scar but cannot say
that is where she was
assaulted. Whilst talking to the deceased the accused emerged,
chased the deceased threw a stone
at her and she ran away but
fortunately that stone did not [strike] the deceased. A week
later she learnt that the deceased
ha[d] passed away. On
various occasions deceased told her that accused was assaulting
her.”
[17]
Mr Bango testified, id at 5, that “on 19 August 2006 he
visited accused at his parental home. He found the accused
and
the deceased quarrelling”. Upon application by the
State, the Court declared him a hostile witness on the ground
that
in his statement to the police he stated that he saw the accused
assaulting the deceased. “He tried to stop
the accused
from assaulting the deceased. He failed and accused continued
to assault[] the deceased and he left them”.
[18]
Mr Kgone testified, id at 7, that on a particular day – the
date of which he could not recall – he saw the accused
and his
girlfriend arguing. The Court noted:
“He
approached them, asked the accused what was the problem and accused
told him that his girlfriend was cheating on him
and he Phakane, the
accused, wanted to assault the girlfriend. . . .
He further testified that the
accused told him that he was
going to kill [his] girlfriend and he again reprimanded the
accused.”
[19]
Id.
[20]
Seriti J, id at 11, found: “The evidence of Mrs Phakane, in my
view, indicates that the accused had seriously injured the
deceased
and that is the reason why he requested his mother to come back
home.” Molefe J, Full Court judgment above n 4
at para 19,
aptly noted:
“It is common
cause that the appellant assaulted the deceased on many occasions.
I do not see any reason why the appellant
would have called
his mother to report that he injured the deceased if he only
assaulted her with a belt and did not injure her,
according to his
testimony. The appellant was the last person who was seen
arguing with the deceased and the two had a
history of violence
between them.”
[21]
Full Court judgment above n 4 at para 17.
[22]
Joubert (ed)
Criminal Procedure Handbook
10 ed (Juta & Co
Ltd, Cape Town 2011) at 302:
“It is
possible that the evidence might fall short of proving the crime
charged, but nevertheless succeeds in proving beyond
reasonable
doubt the commission of some other offence not specifically
formulated as an alternative charge . . . to the charge
in the
indictment or charge-sheet, as the case may be. This type of
situation is governed by the statutory rules pertaining
to so-called
competent verdicts, that is, the unexpressed or latent or implied
charges which only surface once the crime charged
is not proved but
some other crime, which is normally lesser than or akin to the crime
charged, is proved.”
[23]
See [43] to [44].