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[2013] ZAWCHC 72
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Davids v S (A571/12) [2013] ZAWCHC 72 (18 March 2013)
REPORTABLE
THE REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
WESTERN CAPE HIGH
COURT, CAPE TOWN
CASE NO: A571/12
In the matter between:
PIETER DAVIDS
........................................................................................
Appellant
Versus
THE STATE
...........................................................................................
Respondent
JUDGEMENT: 18 MARCH
2013
BOZALEK, J:
This is an appeal
against conviction and sentence following the appellant’s
conviction for murder on 20 July 2005 in the
Regional Court sitting
at Bredasdorp.
The appellant was
sentenced to 15 years imprisonment and a declaration was made that
he was unfit to possess a firearm. Within
two weeks of his
conviction and sentence the appellant directed a letter from prison
to the clerk of the court indicating that
he wished to appeal but
that he could not afford legal representation. The appellant
supplemented his notice of appeal with further
correspondence
setting out his grounds of appeal. What should have happened at this
point was that, in terms of s 67 of the Magistrates
Courts Rules,
the clerk of the court should have sent a copy of the appellant’s
application to the Director of Public Prosecutions
and a hearing
should have been arranged. Notwithstanding the appellant’s
efforts, however, his attempt to appeal languished
for seven years
until he obtained legal representation through the Legal Aid Board
in August 2012.
At that stage a further
formal application for leave to appeal was launched. It came before
a different regional magistrate on
22 August 2012 when it was
established that the record of the proceedings, which had been
mechanically recorded, was missing.
The application was postponed
for the record to be traced but on 5 October 2012 it was concluded
that the record could not be
found or reconstructed and the
appellant’s application for leave to appeal against his
conviction and sentence was granted
“
in (the) absence of
typed record”
.
On appeal the only
portion of the record available is the charge sheet with a record of
postponements and notes by the presiding
officer, a medico-legal
post-mortem report and a list of the appellant’s previous
convictions.
The clerk of the court
at the Somerset West Magistrates Court filed an affidavit indicating
the various steps taken to find the
record and indicating that the
search commenced as far as back as September 2006. No explanation is
given why the matter was
not brought before the regional magistrate
much earlier when the record could not be found or, indeed, why the
appellant had
not simply been requisitioned from prison to make his
application for leave to appeal. The office manager at the
Magistrate’s
Court in Bredasdorp confirms that a search for
the missing record was made but also does not explain why the matter
was allowed
to drift for more than five years without any decisive
action being taken.
The Court was advised by
the representative of the National Director of Public Prosecutions
that the codified instructions of
the Department of Justice and
Constitutional Development provide that the records of cases
disposed of after a trial may only
be destroyed after the expiration
of any imposed prison term. Thus the clerk of the court was obliged
to archive the records
in this matter for 15 years.
The history of this
appeal presents a most disturbing picture. For reasons which are not
clear, but appear to relate to the fact
that the tape recording of
the proceedings could not be traced, the appellant’s timeous
application for leave to appeal
was effectively ignored for five
years while he remained in prison. Having the record available was
not a prerequisite to hearing
the appellant’s application for
leave to appeal and, had this been dealt with expeditiously and been
successful, one has
little doubt that the record would either have
been found or would have been reconstructed with the assistance of
the presiding
magistrate’s notes and those of the other
parties involved. By the time the application was finally heard in
2012 the trial
magistrate had long since retired and, not
surprisingly, had no recollection of the matter.
The failure to process
the appellant’s application for leave to appeal amounted to a
miscarriage of justice. To make matters
worse the correspondence in
the appeal record reveals that there are several other instances of
missing records in the same courts.
In the circumstances I propose
to send a copy of this judgment to the Regional Director of the
Department of Justice and Constitutional
Development drawing his
attention to this serious problem.
Quite apart from the
unacceptable delay other difficulties reveal themselves in the
record. There is no indication that the magistrate
followed the
requirements for the reconstruction of the record as set out in
S
v Gora and Another
2010 (1) SACR 159
(WCC). That case underlined
that the reconstruction process is part and parcel of the fair trial
process and includes the following
elements: the accused must be
informed of the missing portion of the record, of the need to have
it reconstructed and of his
right to participate in the process. It
was further held that once it becomes apparent that the record of
the trial is lost,
the presiding officer should 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 and arrange a date for the parties to re-assemble in
an
open court in order to jointly undertake the proposed
reconstruction. From the record it would appear that neither the
appellant
nor the trial attorney nor the trial prosecutor, either
timeously or at all, were asked to make a contribution to
reconstruct
the record. Be that as it may, in the light of the seven
and a half year delay since the trial it is most improbable that
those
parties would be able to make any meaningful contribution to
reconstruct the record and thus a referral back to the magistrate’s
court for further reconstruction would not only be futile but would
add to the already excessive delay.
Given the loss of all
the recorded evidence it is clear that the record is inadequate for
a proper consideration of the appeal.
In these circumstances it is
inevitable that the appellant’s conviction and sentence must
be set aside. See
S v Chabedi
2005 (1) SACR 415
(SCA) at para
[5]. Indeed, there was no dispute between counsel that such a step
must follow. However, counsel for the respondent
submitted that the
regional magistrate should rather have sent the matter on review in
terms of
s 304
(4) of the
Criminal Procedure Act 51 of 1977
and that
it was improper for her to have granted the application for leave to
appeal on the sole ground that the record of evidence
which led to
the conviction, including the judgment and reasons for sentence, was
not available. In these circumstances, as was
pointed out in
S v
Mantsha
2009 (1) SACR 414
(SCA), it can hardly be said that the
appellant is being granted leave to appeal on the merits since a
consideration thereof
is impossible in the absence of a record. (At
para [14] and [15]).
Respondent’s
counsel submitted further that the failure to process the
appellant’s leave to appeal application by
the Department of
Justice constituted a failure of justice which warranted the matter
being sent to this Court as a review in
terms of
s 304
(4) of Act 51
of 1977. Respondent’s counsel makes the further disturbing
submission that there are “
hundreds of similar cases”
of lost or destroyed records which are in the process of becoming
appeals to this Court following, or in anticipation of, similar
decisions by magistrates confronted by applications for leave to
appeal. Against this background respondent’s counsel requested
that the Court should provide clarity to the magistrates courts as
to whether matters such as these should be treated as appeals
or
reviews.
In my view it would not
be desirable for this Court to prescribe a uniform course of conduct
in matters involving missing records
since the circumstances of each
case may vary widely. There may be matters in which only a portion
of the record is missing,
which portion is arguably not material to
the appeal. In others there may be a dispute as to whether the
reconstructed record
is adequate for the purposes of an appeal in
which case the arguments of counsel for both parties could be of
great assistance
to the Court. In this regard it must be borne in
mind that where a matter is remitted by way of review the Court will
generally
only have the benefit of the magistrate’s views
although, of course, exercising its powers in terms of s 304(3), the
Court
may direct a question of law or fact to be argued by the
Director of Public Prosecutions and by such other counsel as the
Court
may appoint. A further factor to be taken into account is that
by and large the appeal roll of the High Court should be reserved
for cases where there is an acceptable record of the proceedings and
the appeal can be considered on its merits as opposed to
cases, such
as the present, where the record is so patently defective that the
conviction and sentence cannot be sustained in
the face of a
proposed appeal.
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. In a matter such as the present given the almost complete
absence of the record of proceedings the magistrate
could not have
been faulted for remitting the matter for review in terms of s 304
(4) of Act 51 of 1977 rather than granting
leave to appeal. Remittal
on review should, of course, only be taken once the magistrate has,
in the manner described in S v
Gora, taken all necessary steps to
attempt to reconstruct the record.
As mentioned, I consider
that it would be inappropriate to prescribe to magistrates when, in
cases involving missing records and
where leave to appeal is sought,
they should exercise their power to rather send a matter on review.
Not only would this tend
to fetter the discretion which magistrates
enjoy in this regard but any guideline would be so general as to
have limited benefit.
Suffice it to say that when all appropriate
steps have been taken to reconstruct the record but it is
irredeemably defective
for the purposes of an appeal, magistrates
should consider using the crisper and probably more expeditious
procedure of sending
the case on review in terms of s 304 (4) of Act
51 of 1977.
In the present case, the
matter having come before the Court as an appeal, I can see no point
in now treating it as a review rather
than simply upholding the
appeal and setting aside the conviction and sentence.
Finally, respondent’s
counsel submitted that the Court should make an order in terms of s
324 (c) of Act 51 of 1977 to the
effect that a fresh prosecution of
the appellant can be instituted by the State after consideration of
all the relevant factors
including the appellant’s date of
incarceration and when he would have qualified for release on
parole. The relevant section
provides that where a conviction and
sentence have been set aside on appeal on the grounds of a technical
irregularity or defect
in the procedure, proceedings may be
re-instituted in respect of the same offence as if the appellant had
not previously been
arraigned, tried and convicted. However, s 324
does not envisage a prior order or declaration by the court of
appeal that there
has been a technical irregularity or defect and
therefore I see no warrant for making such an order as a necessary
prerequisite
to the State reinstituting prosecution. It is for the
Director of Public Prosecutions or his/her delegee to form a view on
the
matter and take a decision on whether to re-institute
proceedings or not.
In the result I consider
that the following order should be made:
The appeal against
conviction and sentence is upheld;
The appellant’s
conviction for murder and sentence of 15 years imprisonment are set
aside as well as the declaration in
terms of s 103 of Act 60 of 2000
that he is unfit to possess a firearm.
_________________________
L J
BOZALEK
JUDGE OF THE HIGH
COURT
I agree.
__________________________
N BOQWANA
ACTING JUDGE OF THE
HIGH COURT
For the Applicant:
Adv KJ Klopper
As
instructed by: Legal Aid Board
For
the Respondent: Adv LJ Badenhorst
As
Instructed by: Director of Public Prosecutions