S v Shabangu (290/2001) [2007] ZANWHC 74 (14 November 2007)

S v Shabangu (290/2001) [2007] ZANWHC 74 (14 November 2007)

The conviction must be set aside because the record of proceedings is missing and cannot be reconstructed, making it impossible for the court to determine whether the proceedings were just. The court declines to remit the matter for a hearing de novo in the absence of agreement between the parties, leaving it to the Director of Public Prosecutions to decide whether to institute a new prosecution.

Citation
[2007] ZANWHC 74
Parties
Applicant: The State; Accused: Jeffrey Shabangu
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
14 November 2007
Case Number
HR 290/2001
Procedural Posture
Criminal Review / Automatic Review After Conviction and Referral for Sentencing
Outcome
Conviction set aside; matter left to the discretion of the Director of Public Prosecutions regarding further prosecution.
Judges
MTR Mogoeng
Legal Topics
Rape, Automatic Review, Defective Record, Remittal for Retrial
Criminal Law Rape Automatic Review Defective Record Remittal for Retrial

Case Brief

Summary, issues, holding and outcome

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Parties

The State

Applicant

Jeffrey Shabangu

Accused

Procedural Posture

Criminal Review / Automatic Review After Conviction and Referral for Sentencing

Legal Issues

  1. 1 Whether the conviction can stand in the absence of a transcribed or reconstructed record of proceedings.
  2. 2 Whether the matter should be remitted for a hearing de novo or the conviction simply set aside.

Ratio Decidendi

The conviction must be set aside because the record of proceedings is missing and cannot be reconstructed, making it impossible for the court to determine whether the proceedings were just. The court declines to remit the matter for a hearing de novo in the absence of agreement between the parties, leaving it to the Director of Public Prosecutions to decide whether to institute a new prosecution.

Court Disposition

Conviction set aside; matter left to the discretion of the Director of Public Prosecutions regarding further prosecution.

Orders

  • The conviction is set aside.