S v Van Staden

• Jurisdiction: South Africa
• Citation: 2008 (2) SACR 626 (NC)

S v Van Staden
2008 (2) SACR 626 (NC)

2008 (2) SACR p626

Citation	2008 (2) SACR 626 (NC)
Case No	105/2007
Court	Northern Cape Division
Judge	Lacock J, Williams J and Olivier J
Heard	March 18, 2008
Judgment	March 28, 2008
Counsel	Application for condonation and for leave to appeal struck from the roll.

Flynote : Sleutelwoorde

Appeal — Record — Record lost, destroyed or incomplete — Record impossible to reconstruct — Accused's right to fair trial, including right of appeal, not to be frustrated by State's failure to keep proper record of proceedings — H However, this right protectable only where accused complying with applicable rules and legislation, or able to furnish sufficient explanation for having failed to comply — Accordingly, fact that accused to blame for delay in prosecuting appeal relevant consideration in deciding whether or not unavailability of record leading to failure of justice and justifying setting aside of conviction or sentence.

I Appeal — Record — Record lost, destroyed or incomplete — Record impossible to reconstruct — Accused responsible for lengthy delay in prosecution of appeal — Fact of accused's completely inadequate explanation for delay militating against granting of condonation — Extremely unlikely that grounds of appeal advanced by accused would have shown such strong J prospects of success as to outweigh inadequacy of explanation for

2008 (2) SACR p627

delay — Not in interests of justice and of society if convicted person who A had caused, or contributed to, fact that no reconstruction of record available, should be entitled to have either conviction or sentence set aside.

Appeal — Record — Record lost, destroyed or incomplete — Record impossible to reconstruct — Accused responsible for lengthy delay in prosecuting B appeal and for fact that record not capable of reconstruction — Correct approach — Legally unsound to adopt approach that condonation should be refused on grounds that inadequacy of accused's explanation must outweigh any possible prospects of success on appeal — Impossible to consider such prospects — Had record been available, conceivably showing that accused having excellent prospects of success — Proper approach C in case where unavailability of record rendering it impossible to finalise application for condonation and/or for leave to appeal, being to determine whether accused to blame for situation and, if so, to what extent — Where accused substantially to blame, proper order being to strike matter from roll — Only where appearing that accused not to blame would setting aside of conviction or sentence possibly be justified. D

Headnote : Kopnota

The accused lodged an application for leave to appeal against a 15-year sentence for murder. It was discovered, however, that the record of the trial proceedings was missing, and could not be reconstructed. The magistrate submitted the case for special review.

Held, that the constitutional right of an accused to a fair trial included the right E of appeal. A conviction or sentence would be set aside if a valid and enforceable right of appeal was frustrated by the fact that the trial record was lost or incomplete and could not be reconstructed. The State was burdened with the responsibility of keeping a proper record of trial proceedings, and an accused's right to a fair trial - including the right of appeal - should not be frustrated by the State's failure to do so. However, F there was a protectable right of appeal only where the accused had complied with the applicable rules and legislation, or was able to furnish a sufficient explanation for having failed to comply. It would lead to an untenable delay in the finality of criminal proceedings if accused persons were allowed to blatantly disregard legal procedures and still claim that their right of appeal had been frustrated by the loss of a record. Accordingly, the fact that an G accused was to blame for the delay was a relevant consideration in deciding whether or not the unavailability of the record had led to a failure of justice justifying the setting aside of a conviction or sentence. (Paragraphs [3] and [5.1]-[9] at 629h and 630c-632a.)

Held, further, that the accused had been convicted and sentenced in February 2002, but had lodged a notice of appeal only in June 2005. Eleven months H later he had lodged an application for leave to appeal, followed by a further application in April 2007. The only reason advanced by the accused was 'gevangenis probleme' and 'gevangenis omstandighede'. He had been legally represented at trial and when he finally appeared before the magistrate to apply for condonation and for leave to appeal. The fact of the accused's completely inadequate explanation for the delay would in any I event have militated against the granting of condonation. Furthermore, even if the record or a reconstruction had been available, it was extremely unlikely that the grounds of appeal advanced by the accused would have shown such strong prospects of success as to outweigh the inadequacy of the explanation for the delay. It would also not be in the interests of justice and of society if a convicted person, who had caused, or contributed to, the J

2008 (2) SACR p628

A fact that not even a reconstruction of the record was available, should be entitled to have either conviction or sentence set aside. (Paragraphs [11]-[17] at 632g-634d.)

Held, further, regarding the possibility of the matter being rescinded, that if this route was followed the conviction would have to be set aside even though only the sentence had been appealed against, because without the part of B the record dealing with the conviction it would be impossible to deal with the issue of sentence. It would also be necessary for the prosecutor to present evidence on the merits and, even though the State witnesses were still available, the lapse of such a long time since the trial would undoubtedly prejudice these witnesses. Had there been an acceptable explanation for the delay, and therefore for the resultant impossibility of reconstructing C the record, however, the position may have been different. (Paragraphs [22]-[26] at 635j-636g.)

Held, further, that it would be legally unsound to adopt the approach that condonation should be refused on the grounds that the inadequacy of the accused's explanation must outweigh any possible prospects of success on appeal. The fact was that such prospects could not be considered, and D could not therefore be regarded as insignificant or even be compared to any other factor. Had the record been available it could conceivably have shown that the accused had excellent prospects of success with both the application for leave to appeal and the appeal itself. The proper approach in a case where the unavailability of at least a reconstructed record made it impossible to finalise an application for condonation and/or for leave to appeal, E would be to determine whether the accused was to blame for the situation and, if so, to what extent. Should it appear that the accused was substantially to blame, the proper order would be to strike the matter from the roll, on the basis that it could not be properly entertained without the record and that the accused was to blame for the lack thereof. Only where it appeared that the accused was not to blame would the setting aside of a conviction or F sentence possibly be justified. (Paragraphs [32]-[39] at 637i-639c.)

Application for condonation and for leave to appeal struck from the roll.

Annotations:

Cases cited

Reported cases

Makhudu v Director of Public Prosecutions2001 (1) SACR 495 (SCA): referred to G

S v Appel2004 (2) SACR 360 (E): referred to

S v Carter2007 (2) SACR 415 (SCA): referred to

S v Collier1976 (2) SA 378 (C): referred to

S v Di Blasi1996 (1) SACR 1 (A): referred to

S v Fredericks1992 (1) SACR 561 (C): referred to H

S v Heslop2007 (1) SACR 461 (SCA) (2007 (4) SA 38; [2007] 4 All SA 955): referred to

S v Joubert1991 (1) SA 119 (A): dictum at 126E - I applied

S v K1991 (2) SACR 190 (B): referred to

S v Legote en 'n Ander1999 (1) SACR 269 (O): referred to

S v Lesala and Another2002 (2) SACR 8 (O): referred to I

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

S v Mantsha2006 (2) SACR 4 (C): considered

S v Masuka and Others1985 (3) SA 908 (A): referred to

S v Mcophele2007 (1) SACR 34 (E): referred to

S v Miggel2007 (1) SACR 675 (C): referred to

S v Mohlathe2000 (2) SACR 530 (SCA): referred to J

2008 (2) SACR p629

S v Ndlovu1978 (3) SA 533 (T): referred to A

S v Ntantiso and Others1997 (2) SACR 302 (E) ([1997] 3 All SA 576): referred to

S v Quali1989 (2) SA 581 (E): referred to

S v S1995 (2) SACR 420 (T): referred to

S v Sebothe and Others2006 (2) SACR 1 (T): dictum in para [8] applied

S v Shiteni 1978 (4) SA 156 (SWA): considered B

S v Talenyane2006 (2) SACR 153 (O): referred to

S v Thobakgale and Others1998 (1) SACR 703 (W): dictum at 710c applied

S v Zondi2003 (2) SACR 227 (W): referred to

Sanderson v Attorney-General, Eastern Cape1998 (1) SACR 227 (CC) (1998 (2) SA 38; 1997 (12) BCLR 1675): dictum at 244h - 245a applied C

Shinga v The State and Another (Society of Advocates (Pietermaritzburg Bar) Intervening as Amicus Curiae); S v O'Connell and Others2007 (2) SACR 28 (CC) (2007 (4) SA 611; 2007 (5) BCLR 474): referred to.

Unreported cases

S v Ismail (NCD case No K/S 20/2001, 9 February 2007): dictum D at 4 applied

S v Moya (NCD case No 68/07): referred to.

Case Information

Special review. The facts and issues appear from the judgment of Olivier J, in which Lacock J and Williams J concurred. E

Cur adv vult.

Postea (March 28).

Judgment

Olivier J:

[1] The accused was convicted on a charge of murder (to which he had pleaded guilty) and sentenced to 15 years'...