S v Monnakgotla and Another (134/2003) [2003] ZANWHC 41 (31 July 2003)
- Citation
- [2003] ZANWHC 41
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- North West High Court, Mafikeng
- Panel
- R.D. Hendricks
- Case number
- 134/2003
More details
- Court
- North West High Court, Mafikeng
- Panel
- R.D. Hendricks
- Case number
- 134/2003
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the record of the part-heard trial had disappeared and could not be reconstructed despite attempts by the court, defence, and State. The missing record contained material evidence, including testimony from expert witnesses and extensive cross-examination, which was essential for a fair adjudication. In line with established legal principles, where reconstruction is impossible and the lost evidence is material, the proceedings must be set aside to protect the integrity of the trial process. The court ordered that the proceedings be set aside and the matter be heard de novo.
Court disposition
Proceedings set aside; matter to be heard de novo.
Orders
- The proceedings in the case of The State v Monnakgotla and Another Case No. A55/2002, Itsoseng are set aside.
- The matter must be heard de novo.
02
Material facts
Parties
The State
ApplicantMonnakgotla
RespondentAnother
Respondent03
Procedural history
Posture
Review Application / Special Review Under Section 304(4) of the Criminal Procedure Act
04
Questions and positions
Legal issues
- 01
Whether the proceedings should be set aside due to the missing record.
- 02
Whether reconstruction of the record is possible and sufficient for a fair hearing.
- 03
Whether the part-heard trial can continue in the absence of material evidence.
Party arguments
- Applicant
- The State, together with the defence and the court, attempted to reconstruct the missing record but found it impossible due to the length and complexity of the evidence, including expert witnesses and extensive cross-examination. The inability to recollect the proceedings rendered reconstruction unfeasible.
- Respondent
- The respondents relied on the Magistrate's memorandum, which confirmed that reconstruction was not possible and that the missing record contained material evidence essential for adjudication. They argued that the proceedings should be set aside and the matter heard afresh to ensure fairness.
05
Court’s reasoning
Legal principles
- 01
Du Toit et al, Commentary On The Criminal Procedure Act, Service 26, 2001, p. 28-30
Where it is impossible to reconstruct a missing record and the lost portion contains evidence of material importance to the adjudication of an appeal, the appeal ought to succeed and the conviction and sentence set aside.
- 02
S v Catsoulis 1974 (4) SA 371 (T)
If the record or portions thereof get lost before conviction, there is no reason to declare the part-heard trial a nullity, but the proceedings may be set aside if reconstruction is impossible.
- 03
S v Williams 1982 (4) SA 363 (C); S v Fredericks 1992 (1) SACR 561 (C)
The same principle applies to automatic reviews where reconstruction is impossible.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the record of the part-heard trial had disappeared and could not be reconstructed despite attempts by the court, defence, and State. The missing record contained material evidence, including testimony from expert witnesses and extensive cross-examination, which was essential for a fair adjudication. In line with established legal principles, where reconstruction is impossible and the lost evidence is material, the proceedings must be set aside to protect the integrity of the trial process. The court ordered that the proceedings be set aside and the matter be heard de novo.
Obiter and limits
- The court noted that, although the matter was still part-heard, the impossibility of reconstructing the record justified setting aside the proceedings.
- Reference was made to the principle that lost records before conviction do not automatically render the trial a nullity, but fairness may require a fresh hearing.
Court disposition
Proceedings set aside; matter to be heard de novo.
- The proceedings in the case of The State v Monnakgotla and Another Case No. A55/2002, Itsoseng are set aside.
- The matter must be heard de novo.
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
CA NO. 134/2003
IN
THE HIGH COURT OF SOUTH AFRICA
(BOPHUTHATSWANA PROVINCIAL DIVISION)
In the matter between:
THE STATE
VS
MONNAKGOTLA
AND ANOTHER
REVIEW JUDGMENT
HENDRICKS AJ:
This is a matter which came before me as a special review in terms of Section 304(4) of the Criminal Prosedure Act, Act 51 of 1977. It appears from the memorandum written by the Magistrate, that the record of proceedings in this part-heard matter disappeared without a trace.
The normal procedure would be to direct that the record be reconstructed on the best secondary evidence available.
See:- S v Leslie 200 (1) SACR 347 (WLD)
S v Malope 1991 (1) SACR 458 (B).
However, the Magistrate states the following:-
âThe Court, defence and the State tried to reconstruct the record but it is difficult as the record was long, as four state witnesses, two of whom were expert witnesses were called. There was also a lengthy cross-examination by the defence to each witness and same cannot be recollectedâ.
Du Toit et al in their work entitled Commentary On The Criminal Procedure Act, states on page 28-30 of Service 26, 2001 the following;- â Where it is impossible to reconstruct a missing record and the lost portion contains evidence which is of material importance to the adjudication of an appeal, the appeal ought to succeed and the conviction and sentence set aside. (S v Collier 1976 (2) SA 378 (c); S v Marais 1966 (2) SA 514 (T) 517 A-B)â. The same applies also to automatic reviews:- S v Williams 1982 (4) SA 363 (C) S v Fredericks 1992 (1) SACR 561 (C). Although the present matter is still part-heard and although it is stated in S v Catsoulis 1974 (4) SA 371 (T) that, if the record or portions thereof get lost before the conviction, there is no reason to declare the part-heard trial a nullity, I am of the view that the part-heard trial proceedings in this matter should be set aside, if regard is had to what the Magistrate stated in his memorandum. In the premises, I make the following order:- The proceedings in the case of The State v Monnakgotla and Another Case No. A55/2002, Itsoseng is hereby set aside. The matter must be heard de novo. R.D. HENDRICKS
ACTING JUDGE OF THE
HIGH COURT DATED: 31 JULY 2003
Du Toit et al in their work entitled Commentary On The Criminal Procedure Act, states on page 28-30 of Service 26, 2001 the following;-
â Where it is impossible to reconstruct a missing record and the lost portion contains evidence which is of material importance to the adjudication of an appeal, the appeal ought to succeed and the conviction and sentence set aside. (S v Collier 1976 (2) SA 378 (c); S v Marais 1966 (2) SA 514 (T) 517 A-B)â.
The same applies also to automatic reviews:-
S v Williams 1982 (4) SA 363 (C)
S v Fredericks 1992 (1) SACR 561 (C).
Although the present matter is still part-heard and although it is stated in
S v Catsoulis 1974 (4) SA 371 (T) that, if the record or portions thereof get lost before the conviction, there is no reason to declare the part-heard trial a nullity, I am of the view that the part-heard trial proceedings in this matter should be set aside, if regard is had to what the Magistrate stated in his memorandum.
In the premises, I make the following order:-
The proceedings in the case of The State v Monnakgotla and Another Case No. A55/2002, Itsoseng is hereby set aside.
The matter must be heard de novo.
R.D. HENDRICKS
ACTING JUDGE OF THE
HIGH COURT
DATED: 31 JULY 2003
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