Kekae v S (A282/17) [2024] ZAGPPHC 844 (26 August 2024)

Kekae v S (A282/17) [2024] ZAGPPHC 844 (26 August 2024)

The court found that the absence of the complainants' evidence and other key witnesses from the trial record made it impossible to reconstruct the proceedings or to conduct a fair appeal. The appellant's constitutional right to a fair trial and appeal, as enshrined in section 35(3)(o) of the Constitution, was rendered illusory. The court relied on established precedent that where material parts of the record are missing and cannot be reconstructed, the conviction and sentence must be set aside. The appellant had suffered prejudice due to the delay and the impossibility of a just hearing. Accordingly, the trial proceedings, conviction, and sentence were set aside, and the appellant was...

Citation
[2024] ZAGPPHC 844
Parties
Appellant: Mpho Lucas Kekae; Respondent: The State
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
26 August 2024
Case Number
A282/17
Procedural Posture
Criminal Appeal / Full Bench Hearing on Appeal After Failed Record Reconstruction
Outcome
Appeal granted; conviction and sentence set aside; appellant to be released immediately.
Judges
Khumalo, Motha
Legal Topics
Missing Trial Record, Right of Appeal, Fair Trial, Condonation, Setting Aside Conviction
Criminal Law Civil Procedure Missing Trial Record Right of Appeal Fair Trial Condonation Setting Aside Conviction

Case Brief

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Parties

Mpho Lucas Kekae

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Full Bench Hearing on Appeal After Failed Record Reconstruction

Legal Issues

  1. 1 Whether the absence of the complainants' evidence and other material witnesses renders the trial record inadequate for appeal.
  2. 2 Whether the appellant's right to a fair trial and appeal has been infringed due to the missing record.
  3. 3 Whether the conviction and sentence should be set aside in light of the irreparable loss of material evidence.

Ratio Decidendi

The court found that the absence of the complainants' evidence and other key witnesses from the trial record made it impossible to reconstruct the proceedings or to conduct a fair appeal. The appellant's constitutional right to a fair trial and appeal, as enshrined in section 35(3)(o) of the Constitution, was rendered illusory. The court relied on established precedent that where material parts of the record are missing and cannot be reconstructed, the conviction and sentence must be set aside. The appellant had suffered prejudice due to the delay and the impossibility of a just hearing. Accordingly, the trial proceedings, conviction, and sentence were set aside, and the appellant was...

Court Disposition

Appeal granted; conviction and sentence set aside; appellant to be released immediately.

Orders

  • Appeal is granted.
  • The order of the Full Court of the Gauteng Division of the High Court is set aside and replaced with: (a) The trial proceedings relating to the appellant as well as the conviction and sentence of the appellant by the trial court are hereby set aside. (b) The appellant must be released from prison immediately.