S v Joubert (221/89) [1990] ZASCA 113; 1991 (1) SA 119 (AD); [1991] 1 All SA 290 (A) (28 September 1990)

S v Joubert (221/89) [1990] ZASCA 113; 1991 (1) SA 119 (AD); [1991] 1 All SA 290 (A) (28 September 1990)

The Supreme Court of Appeal found that the reconstruction order was not properly complied with, as the appellant and his legal representatives were not afforded the opportunity to participate in reconstructing the lost trial record. The reconstructed record was incomplete and did not reflect all material aspects of the trial. This failure prejudiced the appellant and amounted to a failure of justice, as he was deprived of his right to a fair appeal through no fault of his own. In such circumstances, where the record cannot be properly reconstructed and a just hearing of the appeal is impossible, the only remedy is to set aside the conviction and sentence.

Citation
[1990] ZASCA 113
Parties
Appellant: Daniel J J Joubert; Respondent: The State
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
28 September 1990
Case Number
221/89
Procedural Posture
Criminal Appeal / Appeal From Regional Court Conviction and Sentence; Reconstruction of Lost Record
Outcome
Appeal upheld; convictions and sentences set aside due to failure of justice arising from inability to reconstruct the trial record.
Judges
Joubert, Smalberger, Milne, Kumleben, Nienaber
Legal Topics
Lost Trial Record, Failure of Justice, Reconstruction of Record, Automatic Review, Audi Alteram Partem
Criminal Law Civil Procedure Lost Trial Record Failure of Justice Reconstruction of Record Automatic Review Audi Alteram Partem

Case Brief

Summary, issues, holding and outcome

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Parties

Daniel J J Joubert

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal From Regional Court Conviction and Sentence; Reconstruction of Lost Record

Legal Issues

  1. 1 Whether the failure to comply with the reconstruction order regarding the lost trial record constituted an irregularity justifying the setting aside of the conviction and sentence.
  2. 2 Whether the appellant was prejudiced by the inability to reconstruct the trial record, resulting in a failure of justice.

Ratio Decidendi

The Supreme Court of Appeal found that the reconstruction order was not properly complied with, as the appellant and his legal representatives were not afforded the opportunity to participate in reconstructing the lost trial record. The reconstructed record was incomplete and did not reflect all material aspects of the trial. This failure prejudiced the appellant and amounted to a failure of justice, as he was deprived of his right to a fair appeal through no fault of his own. In such circumstances, where the record cannot be properly reconstructed and a just hearing of the appeal is impossible, the only remedy is to set aside the conviction and sentence.

Court Disposition

Appeal upheld; convictions and sentences set aside due to failure of justice arising from inability to reconstruct the trial record.

Orders

  • The convictions of the appellant in the regional court, together with the sentences imposed, are set aside.