S v Barends

• Jurisdiction: South Africa
• Judge: Kgomo JP and Matlapeng AJ
• Judgment Date: 09 September 2016
• Citation: 2017 (1) SACR 193 (NCK)
• Docket Number: CA&R 104/09
• Hearing Date: 08 August 2016
• Counsel: D van Tonder for the appellant, instructed by Legal Aid South Africa, Kimberley. K Kgatwe for the state.
• Court: Northern Cape Division

Kgomo JP (Matlapeng AJ concurring):

[1] The appellant was, notwithstanding his plea of not guilty, convicted by the regional magistrate (Upington), Mr M Viewe, on 9 March 2007, that he had the direct intent of murdering the deceased, Mr Lebogang Solomon Lepodise, a 21-year-old man, on 6 May 2003. He was sentenced to serve eight years' imprisonment. Leave to appeal was B sought only in respect of the conviction and was granted by the presiding regional magistrate on 6 June 2007. The appellant was throughout represented by Mr Tobie Kotze, whereas Ms D Engelbrecht prosecuted the case.

The delay in prosecuting the appeal C

[2] The delay in prosecuting this appeal is ascribed to the fact that mechanical recordings/tapes/compact discs (CDs) went missing, and, when they were eventually traced and transcribed, certain portions of the evidence were either not mechanically recorded or the recordings could D not be retrieved or were inaudible. The defective portions of the record have now been reconstructed to the substantial satisfaction or sufficient consensus of the regional magistrate, the defence and the state. See the classic judgment of Olivier J (Lacock J and Williams J concurring) in S v Van Staden 2008 (2) SACR 626 (NC) and cases cited therein. E

[3] What could not be accomplished, though, was the reconstruction of the judgment as ordered by Mamosebo AJ (then) and Erasmus AJ on 8 June 2015, for that assignment to be completed by 31 July 2015. The appeal was postponed to 31 August 2015. Fast forward: on 30 May 2016 Olivier J sent a stern directive that the definitively reconstructed judgment reach the registrar of this court not later than 30 June 2016 F to serve before the court of appeal on 8 August 2016. Well, this has not happened, and the frustration persists.

[4] The regional magistrate explains as follows in paras 2 – 9 his inability to reconstruct the judgment: G

'2.

Op 'n stadium het ek my notas tesame met my geskrewe uitspraak aan die klerk van die hof oorhandig sodat dit getik kan word. Dit het egter in daardie proses verlore geraak en het ek dus nie meer my notas tot my beskikking nie.

3.

Vanwee die lang tydsverloop kan ek nie die detail van my uitspraak in herinnering roep nie, alhoewel die rekord van die getuienes nog beskibaar is. H

4.

Ek kan wel onthou dat daar 'n inspeksie ter plaatse gedoen was soos dit uit die record blyk.

5.

Die toneel was wel nie meer soos dit tydens die voorval daaruit gesien het nie maar wat ons kon wel waarneem waar die basiese structure (pale van die binne heining) was uit die merke wat ons kon sien op die grond. I

6.

Dit was 'n dubbel omheinde erf bestaande uit draad heinings en afsonderlike toegangshekke. Ek kan egter nie meer die toneel so helder oproep nie, alhoewel dit 'n groot deel uitgemaak het van my uitspraak waaran ek die beskuldigde se weergawe getoets het en ook uiteindelik verwerp het. J

Kgomo JP

7.

A Ek kan my wel herinner dat daar wel weersprekings was tussen die 3 staatsgetuies, maar vanweë die feit dat dit 'n bewegende toneel was het ek ook bevind dat dit nie wesenlike weersprekings was nie.

8.

Ten opsigte van die beskuldigde se verweer van noodweer dat die gemeenskap hom aangerand het, het ek dit as onwaarskynlikheid bevind aangesien dit nie sin maak dat die gemeenskap hom (die B beskuldigde) sou aanrand nie, terwyl die Oorledene (aldus die beskuldigde se weergawe) die aggressor was. Die getuies het aangedui dat die gemeenskap die beskuldigde met klippe bestook het na die aanranding deur die beskuldigde op die Oorledene, wat die mees waarskynlik was.

9.

Sedert die aansoek om verlof tot appèl toegestaan was, is die beskuldigde op borg vrygelaat en het dus nog nie begin om die C vonnis uit te dien nie.' [Emphasis added.]

[5] How the clerk of court could so easily, not for the first time in the same case, have lost an official document (the 'geskrewe uitspraak') D boggles the mind. There is a sick, very sick, malady emanating from the Upington District and Regional Courts. The Northern Cape Provincial Efficiency Enhancement Committee (NC/PEEC) is dealing with this problem and has urged disciplinary and/or criminal consequences.

[6]With hindsight our colleagues' directive to the regional magistrate E should have incorporated an alternative, to the effect that, failing the reconstruction of the judgment, the magistrate, based on the record, simply give reasons for his conviction. This would not be dissimilar to a district magistrate whose records were in manuscript, but who gave an unwritten ex tempore judgment, which was not mechanically recorded. They only furnished written reasons/judgment upon request. See F Securiforce CC v Ruiters 2012 (4) SA 252 (NCK) (Kgomo JP, Pakati AJ (then) concurring). In para 22 thereof the following is said:

'I hasten to make the following observation. When a losing party asks for reasons for the court's finding, what is in fact being called for is a judgment. A proper judgment at that. I appreciate that magistrates have G to contend with heavy court rolls and that they work under tremendous pressure. See S v Steyn 2001 (1) SA 1146 (CC) (2001 (1) SACR 25; 2001 (1) BCLR 52) at 1155F – 1159D (paras 13 – 21). The aforesaid difficulties notwithstanding, a better judgment should have been produced — particularly if regard is had to the wide-ranging and comprehensive argument that was presented by the legal representatives before H the presiding magistrate as reflected in the transcribed record. Of note is what the applicable rule 51(1) provides:

"(1) Upon a request in writing by any party within 10 days after judgment and before noting an appeal the judicial officer shall within 15 days hand to the registrar or clerk of the court I a judgment in writing which shall become part of the record showing —

(a)

the facts he or she found to be proved; and

(b)

his or her reasons for judgment.'"

This situation no longer obtains in criminal cases in this province J because all judgments are mechanically recorded.

Kgomo JP

[7] The appellant was entitled to expeditious justice, which did not come A his way. He should no longer be held in anxious suspension. Our authority for the route envisaged is to be found in the following cases where no judgments were available or given for a variety of reasons:

[7.1]

In S v Mokela 2012 (1) SACR 431 (SCA) ([2011] ZASCA 166) paras 12 – 13 Bosielo JA stated: B

'I find it necessary to emphasise the importance of judicial officers giving reasons for their decisions. This is important and critical in engendering and maintaining the confidence of the public in the judicial system. People need to know that courts do not act arbitrarily, but base their decisions on rational grounds. Of even C greater significance is that it is only fair to every accused person to know the reasons why a court has taken a particular decision, particularly where such a decision has adverse consequences for such an accused person. The giving of reasons becomes even more critical, if not obligatory, where one judicial officer interferes with an D order or ruling made by another judicial officer. To my mind this underpins the important principle of fairness to the parties. I find it unjudicial for a judicial officer to interfere with an order made by another court, particularly where such an order is based on the exercise of a discretion, without giving any reasons therefor. In E Strategic Liquor Services v Mvumbi NO and Others 2010 (2) SA 92 (CC) (2009 (10) BCLR 1046) para 15 the Constitutional Court, whilst dealing with a failure by a judicial officer to give reasons for a judicial decision, stated that:

"Failure to supply them will usually be a grave lapse F of duty, a breach of litigants' rights, and an impediment to the appeal process.

See also Botes and Another v Nedbank Ltd 1983 (3) SA 27 (A) at 28.

Regarding the duty of judicial officers to give reasons for G their decisions, it is instructive to have regard to what the Right Honourable Sir Harry Gibbs, GCMG, AC, KBE, the former Chief Justice of the High Court of Australia, stated in the 1993 (67A) Australian Law Journal 494 where he said at 494:

"The citizens of a modern democracy — at any rate in H Australia — are not prepared to accept a decision simply because it has been pronounced, but rather are inclined to question and criticise any exercise of authority, judicial or otherwise. In such a society it is of particular importance that the parties to I litigation — and the public — should be convinced that justice has been done, or at least that an honest, careful and conscientious effort has been made to do justice, in any particular case, and that the delivery of reasons is part of the process which has that end in view. . . ." J

Kgomo JP

A See also Mphahlele v First National Bank of SA Ltd 1999 (2) SA 667 (CC) (1999 (3) BCLR 253) para 12; Commissioner, South African Revenue Service v Sprigg Investment 117 CC t/a Global Investment 2011 (4) SA 551 (SCA) paras 28 – 30.'

[7.2]

B In S v Carter 2014 (1) SACR 517 (NCK) paras 3 – 4, this court (Kgomo JP et Mamosebo AJ (then)) stated:

'The less said about the judgment of the regional magistrate, the better. The judgment does not provide any factual background. There is no critical assessment of why the acts of the appellant constituted attempted rape, C and not rape for which he was charged. No authority is cited for the drastic deviation from the original charge. There is no explanation for rejecting the complainant's evidence that she was sexually penetrated. The appellant did not testify, nor did he call any witness. The impact of the appellant's choices to remain silent in the face of D implicatory evidence is not dealt with. The magistrate, and indeed the magistracy, may do well to look at the following judgments in...