Phakane v S (CCT61/16) [2017] ZACC 44; 2018 (1) SACR 300 (CC); 2018 (4) BCLR 438 (CC) (5 December 2017)

Phakane v S (CCT61/16) [2017] ZACC 44; 2018 (1) SACR 300 (CC); 2018 (4) BCLR 438 (CC) (5 December 2017)

The Constitutional Court held that the failure of the State to provide a complete record of the trial proceedings, specifically the absence of the transcript of the main state witness, rendered the applicant's right to a fair appeal illusory. The Full Court could not fairly determine the appeal without the missing evidence, particularly given the decisive role of the witness whose evidence was not available for scrutiny. The applicant's conviction and sentence were set aside, and the trial proceedings were declared invalid. The majority declined to enter a competent verdict of assault, finding insufficient linkage between the assault and the murder charge, and left open the possibility of...

Citation
[2017] ZACC 44
Parties
Applicant: Klaas Lesetja Phakane; Respondent: The State
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
5 December 2017
Case Number
CCT 61/16
Procedural Posture
Leave to Appeal / Appeal From Full Court of the High Court, Gauteng Division, Pretoria
Outcome
Leave to appeal granted; appeal upheld; conviction and sentence set aside; applicant to be released from prison immediately.
Judges
Nkabinde, Cameron, Froneman, Jafta, Khampepe, Mbha, Musi, Madlanga, Mhlantla, Zondo
Legal Topics
Right to Fair Trial, Incomplete Trial Record, Competent Verdicts, Section 35 Constitution, Appeal Procedure
Criminal Law Constitutional Law Right to Fair Trial Incomplete Trial Record Competent Verdicts Section 35 Constitution Appeal Procedure

Case Brief

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Parties

Klaas Lesetja Phakane

Applicant

The State

Respondent

Procedural Posture

Leave to Appeal / Appeal From Full Court of the High Court, Gauteng Division, Pretoria

Legal Issues

  1. 1 Whether the failure to provide a complete trial record for appeal infringed the accused's right to a fair trial and appeal under section 35(3) of the Constitution.
  2. 2 Whether the conviction and sentence can stand in the absence of a complete record, particularly the evidence of the main state witness.
  3. 3 Whether a competent verdict of assault should be entered on the murder charge.

Ratio Decidendi

The Constitutional Court held that the failure of the State to provide a complete record of the trial proceedings, specifically the absence of the transcript of the main state witness, rendered the applicant's right to a fair appeal illusory. The Full Court could not fairly determine the appeal without the missing evidence, particularly given the decisive role of the witness whose evidence was not available for scrutiny. The applicant's conviction and sentence were set aside, and the trial proceedings were declared invalid. The majority declined to enter a competent verdict of assault, finding insufficient linkage between the assault and the murder charge, and left open the possibility of...

Court Disposition

Leave to appeal granted; appeal upheld; conviction and sentence set aside; applicant to be released from prison immediately.

Orders

  • Leave to appeal is granted.
  • The appeal against the decision of the Full Court of the Gauteng Division of the High Court is upheld.