Khanye v S (A118/2021) [2022] ZAFSHC 36 (28 February 2022)

Khanye v S (A118/2021) [2022] ZAFSHC 36 (28 February 2022)

The court found that the absence of a complete and reconstructable trial record made it impossible to properly consider the appeal. This situation prejudiced the appellant's right to a fair appeal and constituted a failure of justice. The court held that, in such circumstances, both the conviction and sentence must be set aside, as the appellant's constitutional and procedural rights had been rendered nugatory. The respondent conceded this position, and the court was satisfied that no alternative remedy was available given the passage of time and destruction of records.

Citation
[2022] ZAFSHC 36
Parties
Appellant: Fanie Johannes Khanye; Respondent: The State
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
28 February 2022
Case Number
A118/2021
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence
Outcome
Appeal upheld; conviction and sentence set aside.
Judges
Naidoo, Chesiwe
Legal Topics
Fair Trial Rights, Incomplete Record on Appeal, Failure of Justice, Conviction and Sentence Set Aside
Criminal Law Civil Procedure Fair Trial Rights Incomplete Record on Appeal Failure of Justice Conviction and Sentence Set Aside

Case Brief

Summary, issues, holding and outcome

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Parties

Fanie Johannes Khanye

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence

Legal Issues

  1. 1 Whether the absence of a complete trial record renders a fair appeal impossible.
  2. 2 Whether the conviction and sentence can stand in the absence of a reconstructable record.
  3. 3 Whether the appellant's fair trial and appeal rights have been violated.

Ratio Decidendi

The court found that the absence of a complete and reconstructable trial record made it impossible to properly consider the appeal. This situation prejudiced the appellant's right to a fair appeal and constituted a failure of justice. The court held that, in such circumstances, both the conviction and sentence must be set aside, as the appellant's constitutional and procedural rights had been rendered nugatory. The respondent conceded this position, and the court was satisfied that no alternative remedy was available given the passage of time and destruction of records.

Court Disposition

Appeal upheld; conviction and sentence set aside.

Orders

  • The appeal is upheld.
  • The conviction and sentence imposed on the appellant are set aside.