S v Khosa (A 224/14) [2014] ZAGPPHC 398 (28 March 2014)
- Citation
- [2014] ZAGPPHC 398
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- North Gauteng High Court, Pretoria
- Panel
- A A Louw, N Janse Van Nieuwenhuizen
- Case number
- A 224/14
More details
- Court
- North Gauteng High Court, Pretoria
- Panel
- A A Louw, N Janse Van Nieuwenhuizen
- Case number
- A 224/14
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that, since the record of the complainant's evidence was preserved and the remainder of the record was destroyed by fire, justice required that only the evidence led after the complainant's testimony be set aside. The complainant's evidence would stand, and the trial should proceed from that point. This approach ensures fairness to both parties and avoids unnecessary repetition of testimony, while remedying the procedural defect caused by the loss of the record.
Court disposition
Evidence led after the complainant's testimony is set aside; the complainant's evidence stands; the case is referred back to the magistrate to proceed with the trial.
Orders
- Any evidence led after that of the complainant is set aside.
- The evidence of the complainant will stand.
- The case is referred back to acting magistrate Munyai to proceed with the trial.
02
Material facts
Parties
The State
ApplicantLesley Khosa
Respondent03
Procedural history
Posture
Review Application / Special Review Following Destruction of Record
04
Questions and positions
Legal issues
- 01
Should evidence led after the complainant's testimony be set aside due to the destruction of the record?
- 02
Is it necessary for the complainant to testify again?
- 03
How should the trial proceed in light of the missing record?
Party arguments
- Applicant
- The acting magistrate submitted under oath that the record of the part-heard matter was destroyed by fire, making reconstruction impossible. The available record shows the complainant completed her testimony, and the case was remanded. The request is for an order regarding further evidence for which the record is unavailable.
- Respondent
- No formal argument from the respondent is recorded in the judgment. The matter was placed before the court for review due to the destruction of the record, with the focus on procedural fairness and the integrity of the complainant's evidence.
05
Court’s reasoning
Legal principles
- 01
General principles of criminal procedure and fair trial
Where the record of proceedings is destroyed and cannot be reconstructed, only the evidence for which a record exists should stand, and any subsequent evidence should be set aside to ensure a fair trial.
- 02
Judicial discretion in review proceedings
It is not necessary for a witness to testify again if their evidence is preserved and uncontested by the destruction of the record.
06
Ratio, limits and disposition
Ratio decidendi
The court found that, since the record of the complainant's evidence was preserved and the remainder of the record was destroyed by fire, justice required that only the evidence led after the complainant's testimony be set aside. The complainant's evidence would stand, and the trial should proceed from that point. This approach ensures fairness to both parties and avoids unnecessary repetition of testimony, while remedying the procedural defect caused by the loss of the record.
Obiter and limits
- There is no reason for the complainant to testify again, as her evidence is preserved.
- The destruction of court records by fire presents unique challenges to the administration of justice, requiring pragmatic solutions.
Court disposition
Evidence led after the complainant's testimony is set aside; the complainant's evidence stands; the case is referred back to the magistrate to proceed with the trial.
- Any evidence led after that of the complainant is set aside.
- The evidence of the complainant will stand.
- The case is referred back to acting magistrate Munyai to proceed with the trial.
Source and reliance status
North Gauteng High Court, Pretoria
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 Gauteng High Court, Pretoria
Judgment
SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
A 224/14
Date: 28 March 2014
Not reportable
Not of interest to other judges
Magistrate's Court POLOKWANE
Case number:DC1011/2012
High Court reference number: 192/2014
THE
STATE VERSUS LESLEY KHOSA
REVIEW
JUDGMENT
A A Louw J
[1] This case has been placed before me in the nature of a special review.
[2] Acting magistrate NR Munyai states under oath that the entire record of this part-heard matter was destroyed by fire when the Polokwane Magistrates court building was destroyed by fire, ft is further stated that the reconstruction of the entire record is now impossible.
[3] From the part of the record that is available it appears that the charge is one of sexual assault. The complainant, Ms R[...], has testified and the transcription of her evidence is in the documents placed before me. It appears that she completed her testimony and that the case was then remanded.
[4] My understanding is therefore that the request before me is to make an order regarding further evidence that was led and in respect of which the record is not available.
[5] There is no reason for the complainant to testify again.
[6] I am therefore of the view that justice will be done if it is declared that only the evidence that was led after that of the
complainant be set aside. This will in effect mean that the complainant’s evidence will stand and that the case will have
to proceed from that point onwards.
[7] I therefore make the following order:
1. Any evidence led after that of the complainant is set aside.
2. The evidence of the complainant will stand.
3. The case is referred back to acting magistrate Munyai to proceed with the trial.
A.A. Louw
Judge of the High Court
I agree.
N.
JANSE VAN NIEUWENHUIZEN
Case-aware research
Ask AI about this case
The judgment and available research above are public. New questions open in a separate private conversation grounded in this case.