S v Shangase

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Henriques J, Poyo Dlwati JP and Ploos Van Amstel J
• Judgment Date: 27 January 2023
• Citation: 2023 JDR 0254 (KZP)
• Docket Number: AR400/2019
• Hearing Date: 27 January 2023
• Court: KwaZulu-Natal Division, Pietermaritzburg

Henriques J (Poyo Dlwati JP and Ploos Van Amstel J concurring)

Introduction:

[1]

The appellant and his co-accused, who were legally represented, were convicted of murder and housebreaking with the intent to rob and robbery with aggravating circumstances on 24 June 2010 in the KwaZulu-Natal High Court, Durban before McLaren J. On 28 June 2010, the appellant was sentenced to 25 years' imprisonment for murder and 15 years' imprisonment for the latter offence. The sentence of 15 years' imprisonment was ordered to run concurrently with the sentence of 25 years' imprisonment imposed for murder, resulting in an effective term of imprisonment of 25 years. In April 2015, the appellant successfully applied for leave to appeal his conviction and sentence before D Pillay J. It is this appeal which serves before us.

[2]

At the time of hearing the application for leave to appeal, the record was incomplete and only consisted of the judgment and sentence of the court a quo. There was no record of the evidence of the witnesses. Since being granted leave to appeal, the appellant has unsuccessfully attempted to have the record transcribed. After several attempts, an affidavit was deposed to by a Registrar, H Bridgelal, (criminal section) of the Office of the Chief Justice, Durban which indicated that despite several attempts, the record of the proceedings could not be retrieved from the court machine or the server as it was part of the "crash" system of recordings. Consequently, a transcript of the court proceedings could not be obtained.

[3]

Subsequently, an attempt was made to reconstruct the record pursuant to an order issued on 31 July 2020. McLaren J was asked to reconstruct the record from his notes and bench books together with the representative of the respondent and the appellant's legal representative.

[4]

McLaren J subsequently submitted a memorandum in which he indicated that he was unable to assist in the reconstruction of the record as he was not provided

2023 JDR 0254 p3

Henriques J (Poyo Dlwati JP and Ploos Van Amstel J concurring)

with his bench books which could not be located. The prosecutor, in addition, could not assist as her notes were incomplete as well as that of the defence counsel. It was subsequently confirmed by a representative of the Director of Public Prosecutions that the record could not be reconstructed.

The current record on appeal:

[5]

At present before us, the appeal record consists of the judgment on conviction and sentence, the indictment, the summary of substantial facts, certain of the exhibits and the application for leave to appeal.

The circumstances which gave rise to the convictions and sentences:

[6]

In respect of the charges preferred, the deceased died on 15 April 2009 as a result of a home invasion. The respondent led evidence to prove that the appellant and others had planned to commit a robbery and hired a vehicle to take them to the deceased's home. The appellant and the other assailants were armed with firearms and knives in order to carry out the robbery and the deceased, who was with his family in the house, was robbed and stabbed. The deceased subsequently succumbed to the injuries he sustained during the course of the robbery. It is common cause that the appellant was convicted on the basis of a confession he had made to one Captain Eva.

Issue on appeal:

[7]

The issue on appeal is whether the appeal record which serves before us is sufficient for a determination of the appeal.

Legal Position:

[8]

There are a number of decisions which deal with the sufficiency of an appeal record. In Phakane v S [2017] ZACC 44; 2018 (1) SACR 300; 2018 (4) BCLR 438...