Melgis v S (A446/09) [2010] ZAWCHC 518 (29 October 2010)

Melgis v S (A446/09) [2010] ZAWCHC 518 (29 October 2010)

The court found that the missing evidence of the complainant was material to the charges of indecent assault, rape, and assault with intent to do grievous bodily harm. Without a complete record, the appellant was prejudiced and a fair appeal was impossible, amounting to a failure of justice. The convictions and sentences for indecent assault and assault with intent to do grievous bodily harm were set aside. However, the common cause facts established that the appellant had sexual intercourse with the complainant, who was under 16 years of age, and was therefore guilty of statutory rape under section 14(1)(a) of the Sexual Offences Act 23 of 1957. The appellant was convicted on two counts...

Citation
[2010] ZAWCHC 518
Parties
Appellant: Len Melgis; Respondent: The State
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
29 October 2010
Case Number
A446/09
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence
Outcome
Appeal partly upheld. Convictions and sentences for indecent assault and assault with intent to do grievous bodily harm set aside. Conviction for rape substituted with two counts of statutory rape; appellant sentenced to four years imprisonment on each count, sentences to run consecutively from 24 July 2001.
Judges
Brusser, Louw
Legal Topics
Lost Trial Record, Failure of Justice, Statutory Rape, Sexual Offences Act, Constitutional Right to Fair Trial
Criminal Law Constitutional Law Lost Trial Record Failure of Justice Statutory Rape Sexual Offences Act Constitutional Right to Fair Trial

Case Brief

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Parties

Len Melgis

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence

Legal Issues

  1. 1 Whether the incomplete trial record prejudiced the appellant and rendered a fair appeal impossible.
  2. 2 Whether the convictions for indecent assault and assault with intent to do grievous bodily harm can stand in light of the missing evidence.
  3. 3 Whether the appellant should be convicted of statutory rape based on common cause facts.

Ratio Decidendi

The court found that the missing evidence of the complainant was material to the charges of indecent assault, rape, and assault with intent to do grievous bodily harm. Without a complete record, the appellant was prejudiced and a fair appeal was impossible, amounting to a failure of justice. The convictions and sentences for indecent assault and assault with intent to do grievous bodily harm were set aside. However, the common cause facts established that the appellant had sexual intercourse with the complainant, who was under 16 years of age, and was therefore guilty of statutory rape under section 14(1)(a) of the Sexual Offences Act 23 of 1957. The appellant was convicted on two counts...

Court Disposition

Appeal partly upheld. Convictions and sentences for indecent assault and assault with intent to do grievous bodily harm set aside. Conviction for rape substituted with two counts of statutory rape; appellant sentenced to four years imprisonment on each count, sentences to run consecutively from 24 July 2001.

Orders

  • The appeals against the conviction on the counts of indecent assault and assault with the intent to do grievous bodily harm succeed and the convictions and sentences on those counts are set aside.
  • The conviction on two counts of rape is set aside and the appellant is convicted on two counts of contravening section 14(1)(a) of Act 23 of 1957.