S v Schoombee and Another

JurisdictionSouth Africa
Citation2017 (2) SACR 1 (CC)

S v Schoombee and Another
2017 (2) SACR 1 (CC)

2017 (2) SACR p1


Citation

2017 (2) SACR 1 (CC)

Case No

CCT 154/16
[2016] ZACC 50

Court

Constitutional Court

Judge

Nkabinde ACJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mbha AJ, Mhlantla J, Musi AJ and Zondo J

Heard

December 15, 2016

Judgment

December 15, 2016

Counsel

Counsel details not supplied.

Flynote : Sleutelwoorde

Appeal — Record — Lost, destroyed or incomplete — Where adjudication of appeal on imperfect record does not prejudice appellant, conviction need not be set aside solely on basis of error or omission in record or improper reconstruction process. C

Headnote : Kopnota

The applicants were convicted in the High Court of murder and were sentenced to life imprisonment. When they attempted to appeal, they discovered that the record of their trial proceedings had been lost. The registrar, however, gave them a record that had been reconstructed by the trial judge based on D his extensive notes. Despite their having not participated in the reconstruction, they chose to proceed on appeal. The full court dismissed the appeal and the Supreme Court of Appeal refused further leave to appeal. In the present proceedings, they sought direct access to challenge the sentence of the first applicant, and both conviction and sentence in respect of the second applicant, on the basis that the proceedings were fundamentally E flawed as the reconstructed record that served before the full court was inadequate. They contended that this amounted to a violation of their constitutional right to a fair trial.

Held, the court did not need to decide whether the applicants' decision to proceed with the appeal on the basis of the record as reconstructed F amounted to a waiver, because they had had a fair trial, including a fair appeal. Although the record of the trial was improperly and imperfectly reconstructed, it was still more than adequate to ensure that the applicants were able to exercise their constitutional right of appeal. The judge's notes were unusually full and detailed and contained a complete narrative of the evidence including the cross-examination (see [25]–[27]). G

2017 (2) SACR p2

Held, A further, that where adjudication of an appeal on an imperfect record did not prejudice the appellants, their convictions did not need to be set aside solely on the basis of an error or omission in the record or an improper reconstruction process (see [29]).

Held, further, that this, however, did not detract from the magnitude of the lapses that had taken place in reconstructing the record. The High Court failed to B ensure that the reconstruction process involved both parties, as was required of it. The loss of trial records was a widespread problem and raised serious concerns about endemic violations of the right to appeal. When reconstruction was necessary, the obligation lay not only on the appellant, but primarily on the court, to ensure that the process complied with the right to a fair trial. It was an obligation that had to be undertaken C scrupulously and meticulously in the interests of criminal accused as well as their victims (see [38]). The application for leave to appeal was dismissed.

Cases cited

Baloyi D v Member of the Executive Committee for Health and Social Development, Limpopo and Others 2016 (4) BCLR 443 (CC) ([2015] ZACC 39): considered

Lufuno Mphaphuli & Associates (Pty) Ltd v Andrews and Another 2009 (4) SA 529 (CC) (2009 (6) BCLR 527; [2009] ZACC 6): considered

S v Machaba and Another 2016 (1) SACR 1 (SCA) ([2015] ZASCA 60): E followed

Mohamed and Another v President of the Republic of South Africa and Others 2001 (2) SACR 66 (CC) (2001 (3) SA 893; 2001 (7) BCLR 685; [2001] ZACC 18): considered

Mohapi v Minister of Justice and Correctional Services and Others [2016] ZANWHC 5: considered

Road F Accident Fund v Mothupi 2000 (4) SA 38 (SCA) ([2000] ZASCA 27): considered

S v Chabedi 2005 (1) SACR 415 (SCA) ([2005] ZASCA 5): compared

S v Chokoe 2014 (2) SACR 612 (GP) ([2014] ZAGPPHC 515): considered

S v Davids [2013] ZAWCHC 72: considered

S v Gora and Another 2010 (1) SACR 159 (WCC) ([2009] ZAWCHC 145): G considered

S v Molaudzi 2014 (7) BCLR 785 (CC) ([2014] ZACC 15): considered

S v Ngidi [2010] ZAKZPHC 10: dictum in para [5] approved

S v Schoombee and Another [2013] ZANWHC 11: referred to

S v Schoombee NWM CC 83/06: referred to

S H v Sebothe and Others 2006 (2) SACR 1 (T): considered

S v Sibelelwana [2012] ZAWCHC 150: considered

S v Zenzile (2009 (2) SACR 407 (WCC) [2009] ZAWCHC 59): considered

S v Zuma and Others 1995 (1) SACR 568 (CC) (1995 (2) SA 642; 1995 (4) BCLR 401; [1995] ZACC 1): dictum in para [16] applied.

Case Information

An application for direct access to the Constitutional Court for leave to I appeal against the dismissal of an appeal by the full court of the North West Division, Mahikeng, against convictions and sentences imposed in the High Court.

Order

The J application for leave to appeal is dismissed.

2017 (2) SACR p3

Judgment

The court:

Introduction

[1] This case concerns a lost record of a criminal trial. The applicants, Mr Phillip Daniël Schoombee and Mr Frederick Johannes Massyn, were convicted of murder in the North West High Court, Mahikeng B (High Court), on 2 March 2007. They were both sentenced to life imprisonment and are currently serving their sentences. The trial court (Hendricks J) on 4 August 2011 refused leave to appeal, but on petition the Supreme Court of Appeal (the SCA) on 1 March 2012 granted them leave to appeal to the full court of the High Court.

[2] When the applicants sought to appeal, they discovered, after much C searching, that the record of their trial proceedings had been lost. Instead, the registrar of the High Court provided them with a 'reconstructed' record. This had been prepared by the trial judge on the basis of the notes he had taken during the proceedings. After some hesitation, the applicants proceeded to appeal on this record. The first applicant, D who at the close of the state's case had changed his plea of not guilty to guilty, appealed only against his life sentence. The second applicant appealed against his convictions of murder and of assault as well as his life sentence. The full court dismissed both their appeals on 7 February 2013. [1] The SCA on 17 May 2013 refused further leave to appeal. E

[3] Before this court the applicants seek direct access to challenge a different aspect of the proceedings. The applicants do not press the challenges to the evidence and sentence they raised before the full court. Instead, more radically, they now say the criminal process against them was fundamentally flawed, and the first applicant's sentence and the F second applicant's convictions and sentence must be set aside. This is because the reconstructed record that served before the full court was inadequate. This, they say, was a violation of their constitutional right to a fair trial. [2] Established jurisprudence indicates that, without a trial record, there can be no appeal — and with no appeal, there can be no fair trial. On this basis they now come before us. G

[4] The application was lodged in this court on 6 July 2016. The Director of Public Prosecutions for the High Court (the DPP) did not file opposing papers. The court on 10 August 2016 directed him to respond to specific questions about the course of the proceedings and the lost record. [3] He did so. In addition, the court requested further information H from the applicants' attorneys. This included the guilty plea the first applicant submitted to the trial court in terms of s 112(2) of the

2017 (2) SACR p4

The Court

Criminal A Procedure Act [4] when the state closed its case, as well as both applicants' application for leave to appeal to the trial court. The court also obtained the full version of the trial judge's reconstruction of the trial proceedings. With this in hand, the court has now decided the application without written submissions or oral argument.

Background B

[5] On the night of 3 to 4 October 2004 a terrible assault took place in the vicinity of Paladium and Leyds Streets, Rustenburg. The assailants were white. Those they assaulted were black. One of those assaulted died a cruel death. He was Mr Molatlhegi Motshegwa. [5] The person assaulted C was Mr Jacob Mokwakwa.

[6] The full court describes the events in detail. [6] In short, the applicants encountered two men walking home from a bar. An altercation ensued. The first applicant's guilty plea avers that the deceased threatened to stab the second applicant. The applicants then chased the deceased in a D bakkie. The second applicant, the passenger, exited the vehicle. He threatened and struck the deceased. The first applicant, the driver, then ran him over — not once, but twice, the second time by reversing over his prostrate body.

[7] Both applicants were charged with murder. The second applicant E was additionally charged with assault with intent to commit grievous bodily harm for the attack on Mr Mokwakwa.

2017 (2) SACR p5

The Court

[8] In 2008, from prison, the applicants instructed their counsel to A obtain the record of the trial proceedings in order to apply for leave to appeal. Some time later, in 2009, counsel informed them that the record appeared to be missing. The applicants, assisted by the first applicant's sister, then sent several letters to the registrar of the High Court requesting a copy of the record. On 8 March 2010, the applicants B received a letter from the transcription company. This informed them that the record would be available — but at a cost of R5230. The applicants paid this fee. They were told that a copy of the record would be available within 10 days. This promise proved futile. Despite follow-up...

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12 practice notes
  • 2018 index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...125S v Sangweni 2017 JDR 1208 (GP) ...................................................... 386S v Schoombee 2017 (2) SACR 1 (CC) ................................................ 405S v Seedat 2015 (2) SACR 612 (GP) .................................................... 101, 107S v Seedat 2017 ......
  • 2017 index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...125S v Sangweni 2017 JDR 1208 (GP) ...................................................... 386S v Schoombee 2017 (2) SACR 1 (CC) ................................................ 405S v Seedat 2015 (2) SACR 612 (GP) .................................................... 101, 107S v Seedat 2017 ......
  • S v Taeke
    • South Africa
    • Invalid date
    ...ZASCA 60): dicta in paras [4] – [5] applied S v Phakane 2018 (1) SACR 300 (CC): dictum in para [39] applied S v Schoombee and Another 2017 (2) SACR 1 (CC) (2017 (5) BCLR 572; [2016] ZACC 50): S v Sebothe and Others 2006 (2) SACR 1 (T): referred to S v Zondi 2003 (2) SACR 227 (W): applied Ts......
  • S v Taeke
    • South Africa
    • Gauteng Division, Pretoria
    • 18 August 2021
    ... ... In Tshivhase Royal Council and Another v Tshivhase and Another; Tshivhase and Another v Tshivhase and Another 1992 (4) SA 852 (A) ([1992] ZASCA 185) at 859E – F Nestadt JA said that: ... [22] In S v Schoombee and Another  2017 (2) SACR 1 (CC) (2017 (5) BCLR 572; [2016] ZACC 50) it was held that, where a trial record has gone missing, the trial court ought ... ...
  • Request a trial to view additional results
9 cases
  • S v Taeke
    • South Africa
    • Invalid date
    ...ZASCA 60): dicta in paras [4] – [5] applied S v Phakane 2018 (1) SACR 300 (CC): dictum in para [39] applied S v Schoombee and Another 2017 (2) SACR 1 (CC) (2017 (5) BCLR 572; [2016] ZACC 50): S v Sebothe and Others 2006 (2) SACR 1 (T): referred to S v Zondi 2003 (2) SACR 227 (W): applied Ts......
  • S v Taeke
    • South Africa
    • Gauteng Division, Pretoria
    • 18 August 2021
    ... ... In Tshivhase Royal Council and Another v Tshivhase and Another; Tshivhase and Another v Tshivhase and Another 1992 (4) SA 852 (A) ([1992] ZASCA 185) at 859E – F Nestadt JA said that: ... [22] In S v Schoombee and Another  2017 (2) SACR 1 (CC) (2017 (5) BCLR 572; [2016] ZACC 50) it was held that, where a trial record has gone missing, the trial court ought ... ...
  • S v Khanye
    • South Africa
    • Free State Division, Bloemfontein
    • 28 February 2022
    ...the nature of the defects in the particular record and on the nature of the issues to be decided on appeal." [See also S v Schoombee 2017 (2) SACR 1 (CC); S v Nkhahle 2021 (1) SACR 336 [10] As I indicated earlier in this judgment, there is almost nothing before this court upon which a deter......
  • Ndara v Weir Investments (Pty) Ltd
    • South Africa
    • Eastern Cape Division
    • 1 October 2019
    ...that the right of appeal is part of an accused's fair trial rights. Reference was made to the judgment in Schoombee and Another v S 2017 (2) SACR 1 (CC) where the following was said at paragraph 19 (footnotes "It is long established in our criminal jurisprudence that an accused's right to a......
  • Request a trial to view additional results
3 books & journal articles
  • 2018 index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...125S v Sangweni 2017 JDR 1208 (GP) ...................................................... 386S v Schoombee 2017 (2) SACR 1 (CC) ................................................ 405S v Seedat 2015 (2) SACR 612 (GP) .................................................... 101, 107S v Seedat 2017 ......
  • 2017 index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...125S v Sangweni 2017 JDR 1208 (GP) ...................................................... 386S v Schoombee 2017 (2) SACR 1 (CC) ................................................ 405S v Seedat 2015 (2) SACR 612 (GP) .................................................... 101, 107S v Seedat 2017 ......
  • Recent Case: Criminal procedure
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 24 May 2019
    ...of the evidence tendered at trial; and ultimately to have such reconstruction transcribed in the normal way.’ In S v Schoombee 2017 (2) SACR 1 (CC) the applicants to the Constitutional Cour t were convicted of murder and sentenced to life imprisonment. In their at tempt to lodge an appeal, ......

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