S v Barends

• Jurisdiction: South Africa
• Citation: 2017 (1) SACR 193 (NCK)

S v Barends
2017 (1) SACR 193 (NCK)

2017 (1) SACR p193

Citation	2017 (1) SACR 193 (NCK)
Case No	CA&R 104/09
Court	Northern Cape Division, Kimberley
Judge	Kgomo JP and Matlapeng AJ
Heard	August 8, 2016
Judgment	September 9, 2016
Counsel	D van Tonder for the appellant, instructed by Legal Aid South Africa, Kimberley.; K Kgatwe for the state.

Flynote : Sleutelwoorde

Trial — Record of proceedings — Lost, destroyed or incomplete — Record E reconstructed but no copy of judgment available — Court could, in giving directions for reconstruction, ask magistrate to simply give reasons for judgment.

Evidence — Trial-within-a-trial — When necessary — Not required when state witness deviates from written statement — Proper procedure set out. F

Headnote : Kopnota

In March 2007 the appellant was convicted in a regional magistrates' court of murdering the deceased, and sentenced to eight years' imprisonment. He was granted leave to appeal in June 2007. The mechanical recordings of G the trial went missing and, when they were eventually found, there were many defects which were subsequently reconstructed to the satisfaction of the regional magistrate. However, the judgment could not be reconstructed as the magistrate's handwritten notes had been sent for typing and were then mislaid. Because of the long delay, the magistrate could no longer remember the details of the case and his conclusions on the reliability of the H witnesses. The appeal was postponed on numerous occasions in order for the reconstruction of the record, and various judges had made orders in this regard.

Held, that it boggled the mind how the clerk of the court could so easily — and not for the first time in the same case — have lost an official document. There was a problem at the Upington District and Regional Courts, which I

2017 (1) SACR p194

A the Northern Cape Provincial Efficiency Enhancement Committees had dealt with, having urged disciplinary and/or criminal consequences. (Paragraph [5] at 196d.)

Held, further, that the directives by other members of the court concerning the reconstruction of the record should have rather incorporated an alternative, to the effect that, failing the reconstruction of the judgment, the magistrate, B 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. In such instances written reasons for judgment were only furnished on request. (Paragraph [6] at 196e–j.)

It appeared that, during the course of the trial, the court ordered, on the C application of the appellant's attorney, that a trial-within-a-trial be held as there was a conflict between the testimony of a state witness and his statement to the police.

Held, that the ruling that a trial-within-a-trial be held was irregular and unprocedural, as this was not a statement made by an accused person to a D police officer or a magistrate involving an admission or a confession, the admissibility of which was called into question as not having been made freely or voluntarily. What ought to have happened is that the defence should have cross-examined the witness on the discrepancy and then left it to the state to call the police officer who obtained the statement, as well as his interpreter. If the prosecutor did not do so, the defence could have called E them when it presented its case. (Paragraphs [35] and [37] at 207e–f and 207h–208a.)

The court proceeded to consider the appeal and, on the evidence available to it, dismissed it.

Annotations:

Cases cited

Reported cases

R v Dhlumayo and Another 1948 (2) SA 677 (A): dictum in paras [10 – [11] applied F

R v Patel 1959 (3) SA 121 (A): dictum at 123A – E applied

R v Van der Walt 1952 (4) SA 382 (A): referred to

S v Carter 2014 (1) SACR 517 (NCK): dicta in paras [3] – [4] applied

S v Mafaladiso en Andere 2003 (1) SACR 583 (SCA) ([2002] 4 All SA 74): considered

S v Mokela 2012 (1) SACR 431 (SCA) ([2011] ZASCA 166): dicta in paras [12] – [13] applied G

S v Van Staden 2008 (2) SACR 626 (NC): referred to

S v Van Wyk 2006 (2) SACR 22 (NC): referred to

Securiforce CC v Ruiters 2012 (4) SA 252 (NCK): considered

Shinga v The State and Another (Society of Advocates (Pietermaritzburg Bar) Intervening as Amicus Curiae); S v O'Connell and Others 2007 (2) SACR 28 (CC) (2007 (4) SA 611; 2007 (5) BCLR 474): considered. H

Case Information

D van Tonder for the appellant, instructed by Legal Aid South Africa, Kimberley.

K Kgatwe for the state. I

An appeal against a conviction in a regional court for murder.

Order

J The appeal fails and is dismissed.

2017 (1) SACR p195

Judgment

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

2017 (1) SACR p196

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...