Phelembe v S (A98/2022) [2022] ZAFSHC 337 (25 November 2022)

Phelembe v S (A98/2022) [2022] ZAFSHC 337 (25 November 2022)

The appeal court found that the absence of any trial record rendered it impossible to adjudicate the appeal on its merits. The record forms the basis for rehearing and, without it, the convictions and sentences cannot be sustained. The court noted the widespread and systemic problem of missing or incomplete records in criminal appeals and emphasized the need for urgent reform in record-keeping. The State conceded that the appeal should succeed, and the court had no alternative but to set aside the convictions and sentences and acquit the appellant on both counts.

Citation
[2022] ZAFSHC 337
Parties
Appellant: Evans Uncle Phelembe; Respondent: The State
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
25 November 2022
Case Number
A98/2022
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence From Regional Court
Outcome
Appeal upheld; convictions and sentences set aside; appellant acquitted on both counts.
Judges
JP Daffue, JJ Mhlambi
Legal Topics
Incomplete Record, Appeal Procedure, Condonation, Record Reconstruction
Criminal Law Civil Procedure Incomplete Record Appeal Procedure Condonation Record Reconstruction

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 6 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Evans Uncle Phelembe

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence From Regional Court

Legal Issues

  1. 1 Whether the appeal can be adjudicated in the absence of a complete trial record.
  2. 2 Whether the convictions and sentences should stand given the lack of a record.
  3. 3 Whether condonation for late application for leave to appeal should be granted.

Ratio Decidendi

The appeal court found that the absence of any trial record rendered it impossible to adjudicate the appeal on its merits. The record forms the basis for rehearing and, without it, the convictions and sentences cannot be sustained. The court noted the widespread and systemic problem of missing or incomplete records in criminal appeals and emphasized the need for urgent reform in record-keeping. The State conceded that the appeal should succeed, and the court had no alternative but to set aside the convictions and sentences and acquit the appellant on both counts.

Court Disposition

Appeal upheld; convictions and sentences set aside; appellant acquitted on both counts.

Orders

  • The appellant’s appeal against his convictions and sentences is upheld.
  • The order of the court a quo is set aside and substituted with: ‘The accused is acquitted on both counts of robbery with aggravating circumstances.’