S v PHAKANE 2018 (1) SACR 300 (CC)

Appeal — Record — Lost, destroyed or incomplete — Effect of on appeal — Transcript of evidence of crucial witness not on record and unclear whether conflict between police statement and evidence in court ever put to witness or clarified — No indication in judgment of this — Record not adequate for proper assessment of appeal — Proceedings set aside.


The applicant, a prisoner serving a sentence of 20 years’ imprisonment for his conviction in the High Court on a charge of murdering his girlfriend, brought an application for leave to appeal against his conviction, the full court having dismissed his appeal to it. He contended that the court a quo had erred in finding that the appeal could be determined, despite the absence from the record of the transcript of the evidence of a crucial witness for the state. The court held that the issue raised by the applicant was an important one, there were reasonable prospects of success and that leave had to be granted. The court accordingly considered the written submissions provided by the parties at its request.

Held, that, in the absence of a transcript of the trial proceedings or any reconstruction of the record of the trial proceedings, a court could not know whether the witness, whose evidence was crucial, had ever explained the conflict between her evidence in court and her statement to the police. In the trial court’s judgment there was no mention of whether the witness had been confronted with the conflict and this was a glaring omission on the part of the court. (See [35] – [36].)

Held, further, that in the present case the full court did not have before it a record on which it could fairly assess whether the trial court’s conviction of the applicant was correct. His right of appeal was frustrated by the fact that material evidence was missing from the record. It was so compromised that his appeal could not be fairly determined, and the proper remedy was to set aside the trial proceedings in their entirety. (See [40] – [41].)

Held, per Cameron J (Mbha AJ concurring), that the proper remedy would be to convict the applicant of the offence of assault, a competent verdict on a charge of murder, as such conviction was justified by the evidence available to the court. The fact that this might close the door to the state reinstituting the murder charge was not a serious consideration; that was an unlikely prospect given the time that had elapsed since the murder. (See [57] – [58].)

Held, per Froneman J, that justice to the deceased and her family demanded that a retrial should be ordered. (See [62].)


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