S v Ntopane and Another (A742/2006) [2009] ZAGPPHC 3 (10 March 2009)

S v Ntopane and Another (A742/2006) [2009] ZAGPPHC 3 (10 March 2009)

The court held that although the general principle is to set aside conviction and sentence where the record is incapable of reconstruction, this does not apply where the appellant's own delay in noting the appeal is the primary cause of the inability to reconstruct the record. In this case, the appellant noted his appeal three years after conviction and sentence, which led to the loss of vital reconstruction material. The court found that the appellant should not benefit from a situation largely of his own making and, accordingly, struck the appeal off the roll without considering the condonation application or prospects of success.

Citation
[2009] ZAGPPHC 3
Parties
Appellant: Thabo Donald Ntopane; Appellant: Simon Ntikwane Morokane; Respondent: The State
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
10 March 2009
Case Number
A742/2006
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence
Outcome
Appeal of the first appellant removed from the roll; appeal of the second appellant struck off the roll.
Judges
T M Makgoka, F G Preller
Legal Topics
Incomplete Record on Appeal, Condonation for Late Appeal, Right of Appeal, Reconstruction of Record
Criminal Law Civil Procedure Incomplete Record on Appeal Condonation for Late Appeal Right of Appeal Reconstruction of Record

Case Brief

Summary, issues, holding and outcome

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Parties

Thabo Donald Ntopane

Appellant

Simon Ntikwane Morokane

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence

Legal Issues

  1. 1 Whether the appeal should be entertained where the record is incomplete and incapable of reconstruction.
  2. 2 Whether the delay in noting the appeal, attributable to the appellant, affects the right to have conviction and sentence set aside.
  3. 3 Whether condonation for late noting of appeal should be granted.

Ratio Decidendi

The court held that although the general principle is to set aside conviction and sentence where the record is incapable of reconstruction, this does not apply where the appellant's own delay in noting the appeal is the primary cause of the inability to reconstruct the record. In this case, the appellant noted his appeal three years after conviction and sentence, which led to the loss of vital reconstruction material. The court found that the appellant should not benefit from a situation largely of his own making and, accordingly, struck the appeal off the roll without considering the condonation application or prospects of success.

Court Disposition

Appeal of the first appellant removed from the roll; appeal of the second appellant struck off the roll.

Orders

  • The appeal of the first appellant is removed from the roll.
  • The appeal of the second appellant is struck off the roll.