S v Taeke

• Jurisdiction: South Africa
• Citation: 2022 (1) SACR 436 (GP)

S v Taeke
2022 (1) SACR 436 (GP)

2022 (1) SACR p436

Citation	2022 (1) SACR 436 (GP)
Case No	A 224/2020
Court	Gauteng Division, Pretoria
Judge	Khumalo J and Matthys AJ
Heard	August 18, 2021
Judgment	August 18, 2021
Counsel	MB Kgakgara for the appellant, instructed by Pretoria Justice Centre.; L Williams for the respondent.

Flynote : Sleutelwoorde

Appeal — Record — Lost, destroyed or incomplete record — Reconstruction of — Collaborative effort to be undertaken scrupulously and meticulously.

Headnote : Kopnota

The appellant appealed against convictions in a regional magistrates' court in 2014 for murder and robbery and sentences of life imprisonment and 15 years' imprisonment, respectively. On 11 December 2020 a directive was issued for heads of argument to be filed by 19 February 2021. These were filed on 18 March 2021 without an application for condonation. The appellant contended on appeal that the record of the proceedings was incomplete, that they had not been a proper reconstruction of the record and that the notes of the magistrate could not be referred to as a reconstructed record. The appellant and the other accused had not been involved in the reconstruction of the record. He contended that the state was the custodian of the trial records and had the duty to provide a record to the court of appeal.

Held, that all parties were to participate in the reconstruction process, which was a collaborative effort. Therefore, there was no merit in the appellant's view that the state bore the exclusive responsibility towards reconstruction of the trial record. When reconstruction was necessary, the obligation lay not only on the appellant, but primarily also on the court, to ensure that the process

2022 (1) SACR p437

complied with the right to a fair trial. It was an obligation that had to be undertaken scrupulously and meticulously in the interests of the accused, as well as the victims. (See [23] – [26].)

Held, further, that, considering the effect that striking of the matter would have on the administration of justice, and for the matter to reach finality, it was necessary that a directive be issued in terms of which the matter was to be dealt. (See [33].) The court accordingly provided a schedule to be followed by the relevant role players in order to ensure a speedy finalisation of the matter.

Cases cited

Erasmus v Absa Bank Ltd and Others GP A/982/13: referred to

Grootboom v National Prosecuting Authority2014 (2) SA 68 (CC); 2014 (1) BCLR 65 (CC); [2013] ZACC 37): dictum in para [23] applied

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

Mulaudzi v Old Mutual Life Assurance Co (South Africa) Ltd and Others2017 (6) SA 90 (SCA) ([2017] ZASCA 88) : dictum in para [26] applied

S v Chabedi2005 (1) SACR 415 (SCA) ([2005] ZASCA 5): dictum in para [5] applied

S v Gora and Another2010 (1) SACR 159 (WCC) ([2009] ZAWCHC 145): applied

S v Leslie2000 (1) SACR 347 (W): referred to

S v Machaba and Another2016 (1) SACR 1 (SCA) ([2015] 2 All SA 552; [2015] ZASCA 60): dicta in paras [4] – [5] applied

S v Phakane2018 (1) SACR 300 (CC): dictum in para [39] applied

S v Schoombee and Another2017 (2) SACR 1 (CC) (2017 (5) BCLR 572; [2016] ZACC 50): applied

S v Sebothe and Others2006 (2) SACR 1 (T): referred to

S v Zondi2003 (2) SACR 227 (W): applied

Tshivhase Royal Council and Another v Tshivhase and Another; Tshivhase and Another v Tshivhase and Another1992 (4) SA 852 (A) ([1992] ZASCA 185): dictum at 859E – F applied

Uitenhage Transitional Local Council v South African Revenue Service2004 (1) SA 292 (SCA) ([2003] 4 All SA 37; [2003] ZASCA 76): dictum in para [6] applied.

Case Information

MB Kgakgara for the appellant, instructed by Pretoria Justice Centre.

L Williams for the respondent.

An appeal from convictions and sentences in a regional magistrates' court for murder and robbery with aggravating circumstances.

Order

1.

The appeal is struck from the roll.

2.

Provided that the appeal be pursued by the appellant, within 20 days from the date of this order a date be arranged by the parties through the office of the clerk of the trial court, to meet in an open court for purposes of jointly undertaking the reconstruction process, to be attended by the presiding officer of the impugned proceedings at the Benoni Regional Court, the appellant, assisted by his legal representative, and the state, represented by the prosecutor.

2022 (1) SACR p438

3.

At the meeting the presiding officer is to place on record the fact that the meeting is for the purpose of reconstruction of the record, prior to the commencement of the reconstruction process.

4.

All parties are to express their views (and the views are to be recorded) regarding whether to their recollection each aspect of reconstruction accords with the evidence tendered during the trial; and

5.

all the parties state their views, including the appellant and his legal representative, on the reconstructed record as per documents filed by the magistrate and, if not accepted, indicate in detail what has been erroneously omitted or added and, if agreed, such to be added or omitted as per the outcome of the discussion, inputs and/or interpretation.

6.

The record is also to be reconstructed to the extent necessary and capable of reconstruction.

7.

The state, that is, the respondent herein, shall bring this order to the attention of the clerk of the trial court within 10 ordinary days from the date of this order.

8.

The clerk of the trial court is to bring the contents of this order to the attention of the officer who presided over the trial proceedings in the trial court at the Benoni Regional Court, and of the president of the court, within 10 ordinary days from the date of receipt of this order.

9.

The officer who presided over the trial proceedings of the trial court shall fix a date or dates for the reconstruction proceedings, not later than 15 ordinary days from the date of receipt of this order, as envisaged by para 2 of this order, including inviting the appellant and his previous and current legal representatives, the prosecutor and applicable interpreter to attend court, in order to jointly undertake a reconstruction of the record.

10.

The reconstruction proceedings envisaged in terms of this order shall be recorded.

11.

Alternatively, where a meeting of all the parties is not feasible the appellant and the other parties can submit their input on the reconstructed record by way of an affidavit, which is to be within 10 days of receipt of the notice informing them of the missing part of the proceedings in the reconstructed record.

12.

The clerk of the trial court shall ensure that the reconstructed record is transcribed within 30 ordinary days of the date of the completion of the reconstruction proceedings.

13.

Upon receipt of the transcribed record, the clerk of the trial court shall provide a copy of the record to the appellant's legal representative currently on record within 15 ordinary days from date of receipt thereof, for purposes of enrolment of the appeal.

Judgment

Khumalo J (Matthys AJ concurring):

Introduction

[1] Taeke Nkute, the appellant, was on 31 January 2014 convicted by the Benoni Regional Court (the trial court) on two counts, namely

2022 (1) SACR p439

Khumalo J (Matthys AJ concurring)

robbery with aggravating circumstances and murder. On 11 February 2014 he was sentenced to 15 years' and life imprisonment on the respective counts. With leave granted by the court a quo on 29 May 2014 he is appealing against both convictions and sentences. He nevertheless in terms of s 309(1)(a) of the Criminal Procedure Act 51 of 1977 (the CPA) had an automatic right to appeal against the conviction and the life-imprisonment sentence that were imposed on the murder charge.

[2] On 11 December 2020 the parties were informed of 19 April 2021 being the set-down date for the hearing of the appeal, and a directive issued for the heads of argument to be filed on or before 19 February 2021. On 15 March 2021 the respondent filed a notice for the striking of the appellant's appeal from the roll, on the basis of appellant's failure to adhere to the directive and rules of court, in that he had failed to file his heads of argument on the specified date. On 18 March 2021 the appellant's heads of argument were filed without an application for condonation for non-compliance, or a response to the respondent's notice for the matter to be struck from the roll.

[3] The appellant is granted legal assistance by Legal Aid South Africa.

[4] It is common cause that the record is incomplete. According to the appellant, the plea proceedings and the entire evidence of the state witnesses are missing. This has resulted in the...