S v Lehaba and Another [2023] ZAGPPHC 339; A59/2019 (25 May 2023)

S v Lehaba and Another [2023] ZAGPPHC 339; A59/2019 (25 May 2023)

The court found that the trial record was incomplete and that the reconstruction procedure was not properly followed. Crucial and material parts of the evidence in chief and cross-examination were missing, which encroached upon the appellants' right to a fair hearing on appeal. The discrepancies and omissions in the...

Source-derived case information.

Citation
[2023] ZAGPPHC 339
Parties
Appellant: Tshepo Lehaba; Appellant: Thabo Mofekeng; Respondent: The State
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
25 May 2023
Case Number
A59/2019
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence After Leave Granted by High Court
Outcome
Appeal upheld; conviction and sentence set aside.
Judges
Sethusha-Shongwe, Tolmay
Legal Topics
Right to Fair Trial, Record Reconstruction, Appeal Procedure, Conviction and Sentence, Section 35 Constitution
Criminal Law Civil Procedure Right to Fair Trial Record Reconstruction Appeal Procedure Conviction and Sentence Section 35 Constitution

Source-derived case record

Summary, issues, holding and outcome

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Parties

Tshepo Lehaba

Appellant

Thabo Mofekeng

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence After Leave Granted by High Court

Legal Issues

  1. 1 Whether the appellants' right to a fair trial was infringed due to the incomplete trial record.
  2. 2 Whether the reconstruction procedure of the trial record was properly followed.
  3. 3 Whether the conviction and sentence can stand in light of the inadequate record.

Ratio Decidendi

The court found that the trial record was incomplete and that the reconstruction procedure was not properly followed. Crucial and material parts of the evidence in chief and cross-examination were missing, which encroached upon the appellants' right to a fair hearing on appeal. The discrepancies and omissions in the record were vital and fatal to the proper adjudication of the appeal. Referring the matter back for further reconstruction would be futile, as the magistrate's notes were lost, the prosecutor's notes were unavailable, and the prosecutor had resigned. The only remedy to protect the appellants' constitutional rights was to set aside the conviction and sentence.

Court Disposition

Appeal upheld; conviction and sentence set aside.

Orders

  • The appeal is upheld.
  • The conviction and sentence are set aside.