S v Mariti (269/08) [2008] ZAFSHC 130 (27 November 2008)

S v Mariti (269/08) [2008] ZAFSHC 130 (27 November 2008)

The High Court found that the record forwarded for review was incomplete, lacking the magistrate's judgment and any evidence relating to count 2. Efforts to reconstruct the record failed, as neither the magistrate nor the prosecutor retained notes or could recall the proceedings. The delay in forwarding and attempting to reconstruct the record was unacceptable and prejudicial to the accused. Referring the matter back for recalling witnesses would effectively amount to a new trial, which is not permissible in these circumstances. The interests of justice require that the conviction and sentence be set aside due to the absence of a complete record and the resultant prejudice to the accused.

Citation
[2008] ZAFSHC 130
Parties
Applicant: The State; Respondent: Khotso Vincent Mariti
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
27 November 2008
Case Number
269/08
Procedural Posture
Criminal Review / Automatic Review Under Section 302 and 304 of the Criminal Procedure Act
Outcome
Conviction and sentence set aside due to incomplete record and inability to reconstruct proceedings.
Judges
M B Molemela, K J Moloi
Legal Topics
Review Proceedings, Incomplete Record, Magistrates Court Duties, Prejudice to Accused
Criminal Law Civil Procedure Review Proceedings Incomplete Record Magistrates Court Duties Prejudice to Accused

Case Brief

Summary, issues, holding and outcome

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Parties

The State

Applicant

Khotso Vincent Mariti

Respondent

Procedural Posture

Criminal Review / Automatic Review Under Section 302 and 304 of the Criminal Procedure Act

Legal Issues

  1. 1 Whether the incomplete record forwarded for review renders the conviction and sentence unsustainable.
  2. 2 Whether it is appropriate to refer the matter back for reconstruction or recalling of witnesses.
  3. 3 Whether the interests of justice are served by setting aside the conviction and sentence in light of the missing record.

Ratio Decidendi

The High Court found that the record forwarded for review was incomplete, lacking the magistrate's judgment and any evidence relating to count 2. Efforts to reconstruct the record failed, as neither the magistrate nor the prosecutor retained notes or could recall the proceedings. The delay in forwarding and attempting to reconstruct the record was unacceptable and prejudicial to the accused. Referring the matter back for recalling witnesses would effectively amount to a new trial, which is not permissible in these circumstances. The interests of justice require that the conviction and sentence be set aside due to the absence of a complete record and the resultant prejudice to the accused.

Court Disposition

Conviction and sentence set aside due to incomplete record and inability to reconstruct proceedings.

Orders

  • The conviction and sentence are set aside.
  • The registrar of this court is to serve a copy of this order on the Head of SAPS Criminal Record Centre in Pretoria.