S v CHOKOE 2014 (2) SACR 612 (GP)

Trial — Record — Record lost, destroyed or incomplete — Procedure to be followed in reconstruction — In partly heard matters trial court not functus officio — Where secondary evidence unobtainable owing to failure of recording evidence, witnesses could be recalled to give evidence again — Thereafter trial to continue in normal way.

The present matter was one in which the proceedings in the magistrates’ court had not been completed but it was sent on special review as the record had been lost in a fire that had engulfed the magistrates’ court on 19 October 2012, destroying 6400 case records. All that was available in the present matter was the incomplete notes by the defence attorney, a portion of the transcription, and a charge-sheet with a record of postponement.

Held, that before embarking upon a special review process the clerk of the court had to attempt any reconstruction of the record and in the present case there was no indication that that had been done.

Held, further, that the court had to try its best to reconstruct the record. The reconstructed record from the best available secondary evidence then had to be placed before all parties. For partly heard matters, the trial court was not functus officio. Where secondary evidence could not be obtained owing to the failure of the mechanically recorded evidence, all the witnesses could be recalled to give evidence once again. Thereafter the trial had to continue in the normal way. Ordered accordingly.