S v Gora and Another

• Jurisdiction: South Africa
• Court: Western Cape High Court, Cape Town
• Judge: Yekison J and Kruger AJ
• Judgment Date: 15 September 2009
• Citation: 2010 (1) SACR 159 (WCC)
• Hearing Date: 28 August 2009
• Docket Number: A131/2009
• Counsel: R Garland for the appellants. M Sebelebele for the State.

Kruger AJ:

[1] The appellants, males, respectively 24 years and 28 years old at the C time of the offences, were charged with one count of armed robbery (ie robbery with aggravating circumstances), four counts of attempted murder and one count of the illegal possession of firearms, all allegedly committed on Sunday 5 October 2003, at or near Ottery, in the district of Wynberg, regional division of the Cape.

[2] Both appellants pleaded not guilty, but were on 4 March 2005 found D guilty by the regional court on all counts after a trial, and each was sentenced to an effective term of imprisonment of 23 years, as follows:

[2.1]

on count 1 (armed robbery): 15 years' imprisonment;

[2.2]

on counts 2 - 5 (attempted murder): five years' imprisonment on each count, all running concurrently; E

[2.3]

on count 6 (illegal possession of a firearm): three years' imprisonment.

[3] Leave was granted to the appellants to appeal against their conviction on the grounds that the learned magistrate erred: F

[3.1]

in not accepting the versions of the appellants as being reasonably possibly true; and

[3.2]

in accepting the State's version as being proved beyond a reasonable doubt.

[4] In respect of the first appellant the appeal against conviction was expressly abandoned by counsel acting on his behalf. G

[5] In respect of the second appellant the conviction on counts 1 - 5 only was criticised as being incorrect by his counsel.

[6] Leave to appeal against sentence was granted on the grounds that the learned magistrate erred: H

[6.1]

by overemphasising the interests of the community and under-emphasising the personal circumstances of the appellants;

[6.2]

by failing to take into account the element of mercy that should have been afforded to the appellants;

[6.3]

by failing to give due consideration to the personal circumstances I of the appellants;

[6.4]

by imposing an inappropriate sentence.

[7] It was further submitted on behalf of the appellants that there was a reasonable prospect that another court might under the circumstances come to another decision regarding an adequate sentence. J

Kruger AJ

Missing record A

[8] In terms of s 76(3)(a) of the Criminal Procedure Act 51 of 1977 the trial court 'shall keep a record of the proceedings, whether in writing or mechanical, or shall cause such record to be kept . . . '.

[9] Unfortunately, the record of the proceedings went missing, even B before the applications for leave to appeal were heard.

[10] In terms of s 35(3)(o) of the Constitution of the Republic of South Africa, 1996, the right of an accused person to a fair trial includes the right of appeal to a higher court.

C [11] Counsel on behalf of the appellants argued with reference to S v Fredericks 1992 (1) SACR 561 (C) that it is impossible to appeal effectively where there is no record. I agree with this submission.

[12] In the absence of a record of the proceedings it is therefore clear that there cannot be a fair trial at the appeal stage. In S v Zenzile (WCC case D No SS106/08), [*] a matter in which Yekiso J of this division had the duty in terms of s 52(3)(b) of the Criminal Law Amendment Act 105 of 1997 to ascertain whether the proceedings in the regional court had been held in accordance with justice, he concluded as follows after having reviewed certain authorities:

E 'A determination whether the proceedings were held in accordance with justice can only be made on the basis of a proper record of the proceedings, or, in those rare instances where the whole or portion of the record is missing, on the basis of a properly reconstructed record. Accuracy or the correctness of the record, particularly in instances where the record has had to be reconstructed, and where a conviction F could lead to imposition of a heavy sentence, such as life imprisonment, is of paramount importance.'

(At para 18.)

[13] According to the judgment in S v Zondi 2003 (2) SACR 227 (W) at 245c - d:

G 'Where the record of the proceeding in the court a quo is inadequate for a proper consideration of the appeal, both the State and the appellant have a duty to try and reconstruct the record from secondary sources.'

[14] In view of the aforesaid I consider that the 'fair trial' requirement will have been met if the parties successfully collaborated towards H properly reconstructing a sufficiently accurate record of the proceedings in order to allow the court of appeal to properly adjudicate upon the issues raised on appeal.

Requirements for a proper reconstruction of the missing record

I [15] In Zenzile supra the question that arose in the circumstances of that matter was, to what extent did the reconstruction process and the events subsequent thereto measure up to the accused's constitutional right to fairness of trial?

Kruger AJ

[16] According to Yekiso J, the reconstruction process is part and parcel A of the fair trial process and includes the following element -

'. . . the accused to have been informed of the missing portion of the record; of the need to have the missing portion of the record reconstructed; of his rights to participate in the reconstruction process; his right to legal representation in such a reconstruction process and the B right to have the reconstruction process interpreted for him should he require the services of an interpreter'.

(At para 19.)

[17] The reconstruction process must give effect to 'the accused's right C to a public trial before an ordinary court, his right to be present when being tried, as well as his right to challenge and adduce evidence' (at para 20).

[18] Yekiso J remarked as follows with regard to the duty of a presiding officer once it becomes apparent that the record is lost: D

'(D)irect 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; to arrange a date for the parties to reassemble, in an open court, in order to jointly undertake the proposed reconstruction; when the reconstruction is about to commence, the magistrate is to place it on record that the parties have reassembled for the purpose of E the proposed reconstruction; the parties are to express their views, on record, that each aspect of reconstruction accords with their recollection of the evidence tendered at trial; and ultimately to have such reconstruction transcribed in the normal way. Once this process has been followed, none of the parties can cry foul that his rights have been trampled on.' F

(At para 21.)

Reconstruction of the record in the present matter

[19] In this matter the following procedure was followed by the trial magistrate: G

[19.1]

The trial magistrate initially called all the parties (probably excluding the appellants) to his office and requested them to 'sit down and reconstruct the record'. At that stage the magistrate had already gotten hold of his trial notes and his written judgment. The appellants' trial attorney had resigned and the H new attorney could not be of assistance.

[19.2]

On 29 October 2008 the court was convened by the...