Phiri v S (CA 55/2015) [2024] ZANWHC 185 (11 July 2024)
- Citation
- [2024] ZANWHC 185
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- North West High Court, Mafikeng
- Panel
- J T Djaje, T Masike
- Case number
- CA 55/2015
More details
- Court
- North West High Court, Mafikeng
- Panel
- J T Djaje, T Masike
- Case number
- CA 55/2015
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the record of proceedings was incomplete, specifically missing the appellant's evidence and the testimony of a key state witness. Without these portions, the court is unable to consider the merits of the appeal. The appellant failed to provide any explanation for the missing record or demonstrate efforts to reconstruct it. As a result, the appeal cannot proceed and must be removed from the roll until a complete record or a satisfactory explanation is provided.
Court disposition
Appeal removed from the roll due to incomplete record. Appellant ordered to file complete record or explanation.
Orders
- The appeal is removed from the roll due to incomplete record.
- The appellant is ordered to file the complete record or an explanation why the complete record could not be filed.
02
Material facts
Parties
Tebogo Michael Phiri
Appellant Counsel: Adv KekanaThe State
Respondent Counsel: Adv Rasakanya03
Procedural history
Posture
Criminal Appeal / Appeal Removed From Roll Due to Incomplete Record
04
Questions and positions
Legal issues
- 01
Whether the appeal can be heard in the absence of a complete record of proceedings.
- 02
Whether the appellant has provided an adequate explanation for the missing portions of the record.
Party arguments
- Applicant
- The appellant seeks to appeal both conviction and sentence for rape, relying on his automatic right of appeal. No explanation was provided regarding the missing portions of the record or steps taken to obtain or reconstruct it.
- Respondent
- The respondent did not provide substantive argument, as the record remains incomplete and the appellant has not explained the absence or attempted reconstruction of the missing evidence.
05
Court’s reasoning
Legal principles
- 01
S v Chabedi 2005 (1) SACR 415 (SCA)
An appeal cannot be properly adjudicated without a complete record of the proceedings, especially where the appellant's version is missing.
- 02
Criminal Law Amendment Act 105 of 1997
Section 51(1) of the Criminal Law Amendment Act 105 of 1997 prescribes minimum sentences for certain offences, including rape committed more than once.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the record of proceedings was incomplete, specifically missing the appellant's evidence and the testimony of a key state witness. Without these portions, the court is unable to consider the merits of the appeal. The appellant failed to provide any explanation for the missing record or demonstrate efforts to reconstruct it. As a result, the appeal cannot proceed and must be removed from the roll until a complete record or a satisfactory explanation is provided.
Obiter and limits
- The court notes the importance of a complete record in ensuring the fairness of appellate proceedings.
- Appellants must take active steps to secure or reconstruct missing records to avoid unnecessary delays in the administration of justice.
Court disposition
Appeal removed from the roll due to incomplete record. Appellant ordered to file complete record or explanation.
- The appeal is removed from the roll due to incomplete record.
- The appellant is ordered to file the complete record or an explanation why the complete record could not be filed.
Source and reliance status
North West High Court, Mafikeng
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
North West High Court, Mafikeng
Judgment
IN
THE HIGH COURT OF SOUTH AFRICA
NORTH WEST PROVINCIAL DIVISION, MAHIKENG
CASE NO: CA 55/2015
Reportable: YES / NO
Circulate to Judges: YES / NO
Circulate to Magistrates: YES / NO
Circulate to Regional Magistrates: YES / NO
In the matter between:
TEBOGO
MICHAEL PHIRI
APPELLANT
AND
THE
STATE
RESPONDENT
CRIMINAL
APPEAL
DJAJE AJP; MASIKE AJ
Heard: 18 June 2024
Delivered: This judgment is handed down electronically by circulation to the parties through their legal representatives’ email addresses.
The date for the hand-down is deemed to be 11 JULY 2024
ORDER
The following order is made: -
1. The appeal is removed from the roll due to incomplete record.
2. The appellant is ordered to file the complete record or an explanation why the complete record could not be filed.
JUDGMENT
DJAJE
AJP
[1] The appellant was convicted of rape by the Regional Court in Garankuwa and sentenced to life imprisonment. In the charge sheet it was alleged that the complainant was raped more than once and hence the reference to the applicability of section 51(1) of the Criminal Law Amendment Act 105 of 1997 read with Part 1 of Schedule 2. He now appeals against both conviction and sentence exercising his automatic right of appeal.
[2] This appeal was previously struck off the roll due to incomplete record of proceedings. It has now been re-enrolled, and the record is still incomplete. The missing portions of the record are the appellant’s entire evidence including cross examination. The evidence of one state witness who was with the appellant and the complainant on the day of the incident is also missing from the record. There was no explanation from the appellant what steps were taken to obtain the complete the record or if the record could be reconstructed. This court is not able to deal with the appeal when the version of the appellant is not part of the record. The appeal should be removed from the roll and the appellant file the complete record for consideration of the matter.
Order
[3] Consequently, the following order is made: -
3. The appeal is removed from the roll due to incomplete record.
4. The appellant is ordered to file the complete record or an explanation why the complete record could not be filed.
J
T DJAJE
ACTING
JUDGE PRESIDENT
NORTH WEST DIVISION; MAHIKENG
I agree
T
MASIKE
ACTING
JUDGE OF THE HIGH COURT
NORTH WEST DIVISION, MAHIKENG
APPEARANCES
DATE OF HEARING: 18 JUNE 2024
DATE OF JUDGMENT: 11 JULY 2024
COUNSEL FOR THE APPELLANTS:
ADV
KEKANA
COUNSEL FOR THE RESPONDENT:
ADV
RASAKANYA
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