Lemao v S (A270/09) [2009] ZAGPPHC 229 (31 March 2009)

Lemao v S (A270/09) [2009] ZAGPPHC 229 (31 March 2009)

The court held that the magistrate's response was inadequate and that the obligation to reconstruct the record does not rest solely on the presiding magistrate. The clerk of the court must take active steps to obtain the best secondary evidence of the missing portions, consulting all relevant parties, including the accused and the State. Advocate Seemela, as the former presiding officer, remains ethically obliged to assist. The reconstructed record must then be submitted to the reviewing judge for proper consideration.

Citation
[2009] ZAGPPHC 229
Parties
Appellant: Concley Phehane Lemao; Respondent: The State
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
31 March 2009
Case Number
A270/09
Procedural Posture
Review Application / Automatic Review After Conviction and Sentence
Outcome
Matter referred back for reconstruction of the record.
Judges
C Botha, S Potterhill
Legal Topics
Record Reconstruction, Automatic Review, Housebreaking, Assault With Intent to Do Grievous Bodily Harm
Criminal Law Civil Procedure Record Reconstruction Automatic Review Housebreaking Assault With Intent to Do Grievous Bodily Harm

Case Brief

Summary, issues, holding and outcome

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Parties

Concley Phehane Lemao

Appellant

The State

Respondent

Procedural Posture

Review Application / Automatic Review After Conviction and Sentence

Legal Issues

  1. 1 Whether the incomplete record of proceedings can be reconstructed for review purposes.
  2. 2 Who bears the obligation to reconstruct the record when the presiding magistrate is no longer employed by the Department of Justice.
  3. 3 Whether the accused and the State should be given an opportunity to contribute to the reconstruction of the record.

Ratio Decidendi

The court held that the magistrate's response was inadequate and that the obligation to reconstruct the record does not rest solely on the presiding magistrate. The clerk of the court must take active steps to obtain the best secondary evidence of the missing portions, consulting all relevant parties, including the accused and the State. Advocate Seemela, as the former presiding officer, remains ethically obliged to assist. The reconstructed record must then be submitted to the reviewing judge for proper consideration.

Court Disposition

Matter referred back for reconstruction of the record.

Orders

  • The matter is referred back to the clerk of the court, Praktiseer, with the instruction to obtain the best secondary evidence of the portion of the evidence that was not transcribed.
  • Thereafter, the reconstructed record must be submitted to the reviewing judge.