S v Chabedi

• Jurisdiction: South Africa
• Judge: Brand JA, Nugent JA and Cloete JA
• Judgment Date: 03 March 2005
• Hearing Date: 16 February 2005
• Docket Number: 497/04
• Citation: 2005 (1) SACR 415 (SCA)
• Court: Supreme Court of Appeal
• Counsel: R J Nkhahle for the appellant. No appearance for the State (heads of argument having been prepared by C E Britz).

Brand JA:

[1] This appeal has its origin in the magistrate's court for H the district of Roodepoort. The appellant was charged with a form of theft colloquially known as shoplifting in that she allegedly stole two roll-on deodorants with a joint value of R15,78 from the Highgate Pick 'n Pay. Despite her plea of not guilty, she was convicted as charged and sentenced to a fine of R600 with an alternative of three months' imprisonment. I

[2] Her appeal to the Johannesburg High Court against both conviction and sentence was dismissed by Fleming DJP (Satchwell J concurring). The further appeal to this Court, again directed against both conviction and sentence, is with the leave of the Court a quo (Satchwell J and Shakenovsky AJ). J

Brand JA

[3] At the hearing of the matter in this Court there was no A appearance for the State, though heads of argument were duly filed on its behalf. The reason for this rather unusual state of affairs, so we were told, was that the advocate in the office of the Johannesburg Director of Public Prosecutions who had been instructed to represent the State did not receive any notice of the date on which the appeal would be heard. It appears, however, that a registered letter B containing such notice had been sent to the office of the Director of Public Prosecutions in Johannesburg by the Registrar of this Court in accordance with the provisions of Rule 13 and it was not returned. In addition, we were informed that the appellant, who is unemployed, had travelled from Johannesburg at her own expense to attend the hearing of her appeal and that she was anxious that the matter should be C finalised. In these circumstances we held that the State's request for a postponement, conveyed to us by telephone, should be refused.

[4] Though the appellant conducted her own defence before the magistrate, she was represented by counsel both in this Court and in D the Court a quo. Whilst different counsel appeared for her in this Court, he essentially adopted the same line of attack as his predecessor in the Court a quo. This line of attack was concerned more with the condition of the record of the proceedings in the trial court than with the merits of the appellant's conviction by that court. E

[5] On appeal, the record of the proceedings in the trial court is of cardinal importance. After all, that record forms the whole basis of the rehearing by the Court of appeal. If the record is inadequate for a proper consideration of the appeal, it will, as a rule, lead to the conviction and sentence being set aside. However, the requirement F 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. As has been pointed out in previous cases, records of proceedings are often still kept by hand, in which event a verbatim record is impossible...