S v Mooketsi (CA 31/10) [2013] ZANWHC 22 (1 March 2013)

S v Mooketsi (CA 31/10) [2013] ZANWHC 22 (1 March 2013)

The court held that the mere assertion by the presiding magistrate that reconstruction of the record would be difficult is insufficient unless supported by sworn evidence or affidavits. There was no evidence before the court that reconstruction was impossible. Therefore, the matter must be remitted to the clerk of the Regional Court, Taung, for reconstruction of the record using the best secondary evidence available. The process must include obtaining notes from the presiding officer, interpreter, stenographer, and legal representatives, as well as affidavits from officials regarding the loss or impossibility of reconstruction. The reconstructed record must be submitted to the appellant...

Citation
[2013] ZANWHC 22
Parties
Appellant: Keabetswe Piet Mooketsi; Respondent: The State
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
1 March 2013
Case Number
CA 31/10
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence; Remittal for Record Reconstruction
Outcome
Matter remitted for reconstruction of the record on the best secondary evidence available before the appeal can proceed.
Judges
Hendricks, Kgoele
Legal Topics
Record Reconstruction, Appeal Procedure, Secondary Evidence
Criminal Law Civil Procedure Record Reconstruction Appeal Procedure Secondary Evidence

Case Brief

Summary, issues, holding and outcome

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Parties

Keabetswe Piet Mooketsi

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence; Remittal for Record Reconstruction

Legal Issues

  1. 1 Whether the record of proceedings can be reconstructed on the best secondary evidence available.
  2. 2 Whether the absence of an affidavit from the presiding magistrate or other officials precludes reconstruction of the record.
  3. 3 Whether the matter should be remitted for reconstruction of the record before the appeal can proceed.

Ratio Decidendi

The court held that the mere assertion by the presiding magistrate that reconstruction of the record would be difficult is insufficient unless supported by sworn evidence or affidavits. There was no evidence before the court that reconstruction was impossible. Therefore, the matter must be remitted to the clerk of the Regional Court, Taung, for reconstruction of the record using the best secondary evidence available. The process must include obtaining notes from the presiding officer, interpreter, stenographer, and legal representatives, as well as affidavits from officials regarding the loss or impossibility of reconstruction. The reconstructed record must be submitted to the appellant...

Court Disposition

Matter remitted for reconstruction of the record on the best secondary evidence available before the appeal can proceed.

Orders

  • The matter is remitted to the clerk of the Regional Court, Taung for reconstruction of the record on the best secondary evidence available.
  • Notes of the presiding officer must be obtained to assist in reconstructing the record.