Nndwambi v Clerk of the Criminal Court, Thohoyandou Magistrate's Court and Others (539/2014) [2015] ZALMPTHC 8 (1 September 2015)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

(functioning as LIMPOPO LOCAL DIVISION, THOH6YANDOU)

Case number: 539/2014

Date: 1 September 2015

In the matter between:

MASHUDU MICHAEL NNDWAMBI.............................................................................APPLICANT

And

CLERK OF THE CRIMINAL COURT

THOHOYANDOU MAGISTRATE’S COURT...........................................................RESPONDENT

COURT MANAGER (CRIMINAL COURT)........................................................2nd RESPONDENT

DIRECTOR OF PUBLIC PROSECUTIONS

THOHOYANDOU....................................................................................................3rd RESPONDENT

MAGISTRATE J RAPHUDI...................................................................................4th RESPONDENT

DE KLERK (AJ)

[1] I was requested by the Applicant to furnish the reasons for the order granted by me, on 6 August 2015, in terms whereof I have dismissed the Applicant’s application in this matter.

The facts are as follows;

[2] The Applicant was on 14 March 2013 convicted in the Magistrate’s Court Thohoyandou on a charge of assault with the intention to do grievous bodily harm and was sentenced to a fine of R5 000.00 or 2- years imprisonment, wholly suspended for a period of five years on condition that he is not found guilty of assault during the period of suspension.

[3] The Applicant had been legally represented throughout the trial.

[4] The Applicant was not satisfied with his conviction and sentence and wished to appeal.

[5] The Applicant's erstwhile attorneys however failed to apply for leave to appeal.

[6] Consequently during or about May 2013 the Applicant approached his present attorneys of record.

[7] They inter alia advised the Applicant that they would need to obtain a transcript of the trial record in order to ascertain his prospects of success on appeal.

[8] A transcript of the.evidence was consequently requested from lAfrica

Transcribers.

[9] I Africa Transcribers could however not obtain the disc which recorded the evidence of the Complainant. In this regard lAfrica stated as follows: “On the cd that we received, there was no recording of the 2nd of March 2012 where Complainant Sharon Matambedzo was giving evidence. Instead, there are many cases, that doesn’t form part of this case.”

[10] The Applicant’s attorneys then requested the Clerk of the Court to reconstruct the missing part of the record, without success.

[11] Consequently during or about August 2014 the Applicant lodged this application.

[12] The Applicant seeks the following relief in the Notice of Motion:

“1. That the First and Second Respondents be ordered to give the Applicant’s attorneys the full or alternatively the missing transcript of the record of the criminal trial held at Thohoyandou Magistrate’s Court under Case Number A44/2012;

2. That the First Respondent be ordered to comply with the prayer one (1) within fifteen days of the granting of this order;

3. Alternatively, if the abovementioned transcript cannot be located both conviction and sentenced be set aside;

4. That the costs be awarded against the First Respondent, alternatively against any party who opposes this application;

5. Further and alternative relief;"

[13] On 10 October 2014 an order was granted by Legodi J in terms whereof the parties were directed to reconstruct the record within 30 days from the date of the order.

[14] The parties failed to comply with the order.

[15] On 6 August 2015 the Applicant contended that the Applicant’s conviction and sentence should be set aside.

Legal principles:

[16] The requirements for a final interdict are:

(a) A clear right;

Xb) An injury actually committed or raasonabiy_apprehended;. and . . (c) The absence of similar or adequate protection by any other ordinary remedy.

Clear right:

[17] Section 35 (3) (o) of the Constitution of the Republic of South Africa Act No, 108 of 1996 reads as follows:

“Every accused person has a right to a fair trial, which includes the right-

(o) of appeal to, or review, by a higher Court.

[18] In S v Thobakgaie and Others 1998 (1) SACR 703 (W) at 710 C it

was held that:

“When a party wishes to appeal after expiry of the limited time, he no longer has a “right” to appeal. The Court is dealing with the resuscitating of a right which perished ...

It will, however, for purposes of this judgment be accepted that the right to apply for condonation would also be a feature of an accused's ■ right to a fair trial.”

[19] In S v van Staden [2008] ZANCHC 45; 2008 (2) SACR 626 (NC) at 63Q it was held that the pre-requisites for such a right of appeal are:

“5.2.1 that such right is exercised with due diligence and that the rules and legislation regarding, inter alia, time limits are adhered to (see Steytler Constitutional Criminal Procedure: A Commentary on the Constitution of the Republic of South Africa, 1996 (1998) at 397; and S v Zondi 2003 (2) SACR 227 (W) at 241 b-c) and failure to do so may in some cases be viewed as an abandonment of the right to appeal. (See S v Carter 2007 (2) SACR 415 (SCA) at 421 c-d and S v ismaii (infra) at 5).

5.2.2 that the accused applies for leave to appeal within the prescribed period of 14 days after sentence (see s 309B (1)

(b) (i) of the Criminal Procedure Act 51 of 1977; and Shinga v The State and Another (Society of G Advocates (Pietermaritzburg Bar) Intervening as Amicus Curiae); S y O'Conneii and Others [2007] ZACC 3; 2007 (2) SACR 28 (CC) (2007 (4) SA 611; 2007 (5) BCLR 474)). .

5.2.3 that the accused advances ‘his reasons or grounds for complaining that he was wrongly convicted' (See $ v Zoncfi (supra) at 240 i-241b).

5.3.1 where an accused has failed to adhere to the prescriMd time. limit for the lodging on an application for leave to appeal, condonation would be required, the granting of which would then amount to leave to proceed with the late application for leave to appeal (See S 309B (1) (b) (ii) of the Criminal Procedure Acf).

5.3.2 where condonation is required, the reason for the failure to comply with the applicable rules or legislatibn need to be sufficiently

explained (see $ v Mohlathe 2000 (2) SACR 530 (SCA) at 535a; and SvDiJ Blasi 1996 (1) SACR 1 (A) at3f hy

[20] It is clear that the Applicant complied with this requirement.

An injury actually committed or reasonably apprehended:

[21] The State is burdened with the responsibility of keeping proper record of trial proceedings.

[22] If part of the record is missing both the Appellant and the State have a duty to try and reconstruct the record from secondary sources.

[23] The Court can only consider setting the conviction aside if it is impossible to reconstruct the record and the missing portion contains essential evidence. The hearing of an appeal wotild be rendered impossible.

[24] In S v Leslie 2000 (1) SACR 347 (W) it was held that: “The appeal of someone who was found guilty by a competent Court should succeed on grounds unrelated to cogency of evidence only if there is sufficient certainty that a just hearing of a valid appeal has been rendered impossible (S v Whitney supra at 456 F); S v 5 1995 (2) SACR 420 (T) at 424 /)/ of 3 v Malope 1991 (1) SACR 458 (B) at 440d) ... It is only when the appellant convinces the Court that the judicial process at the appellate stage cannot be exercised with adequate accuracy, that a Court can consider setting aside a duly recorded conviction. And before that is weighed there must be certainty that all efforts which hold promise of revealing what the evidence has been, have been duly attended to.”

[25] It can therefore not be said that there is sufficient certainty that all efforts which hold promise of revealing what the evidence has been have been duly attended to.

Remedy:

[26] When a litigant has obtained a Court Order requiring an opponent to do something and there is non-compliance, he can approach the Court j*gain for a further order declaring the non-compliant party in contempt of Court and for the imposition of a sanction which usually has the object of inducing the non-complier to fulfil the terms of the previous order.

Conclusion:

[27] The Applicant by way of a final interdict seeks an order setting aside his conviction and sentence based on the fact that the “parties11 have failed to reconstruct the missing part of the record as ordered by this Court on 10 October 2014, thereby frustrating his

constitutional right to appeal.

[28] As already stated the Court can only consider setting the conviction aside if it is impossible to reconstruct the missing portion of the record and same contains essential evidence.

[29] Although numerous requests .were made by the Applicant's attorneys before this application was lodged by the Applicant and notwithstanding the order by Legodi Jr no efforts were made to reconstruct the record. It can therefor not be said that it is impossible to produce at least a reconstruction of the record.

[30] To set aside the conviction and sentence is also not the only avenue open to the Applicant, The Applicant's remedy is to bring an application for the ''parties” committal for contempt of Court.

[30] The setting aside of the conviction and sentence under these circumstances would in my view not be in the interests of justice.

DE KLERK

ACTING JUDGE OF THE GAUTENG DIVISION HIGH COURT,

PRETORIA

APPLICANTS REPRESENTATIVES

ADVOCATE ; ADVOCATE MAKUYA U.B

INSTRUCTING ATTORNEY MUTHEVHULI FROM KERN

& DEKKER INCORPORATED

RESPONDENTS REPRESENTATIVES

ADVOCATE ;

INSTRUCTING ATTORNEY