Van der Merwe v S (A627/2011) [2015] ZAGPPHC 1107 (4 June 2015)

Van der Merwe v S (A627/2011) [2015] ZAGPPHC 1107 (4 June 2015)

The appeal court found that the reconstructed record was so deficient, particularly regarding the evidence of the key state witness, that a fair adjudication of the appeal was impossible. The defects were material and irreparable, necessitating the setting aside of all convictions and sentences. Regarding the contempt of court conviction, the court held that the second appellant had provided a reasonable and acceptable explanation for her absence, supported by medical certificates and an affidavit. The trial court erred in rejecting this evidence and in finding her guilty of contempt. Both the convictions and the contempt finding were set aside, and the appellants were acquitted on all...

Citation
[2015] ZAGPPHC 1107
Parties
Appellant: Magdalena Adriana Van der Merwe; Appellant: Phenster Production CC; Respondent: The State
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
4 June 2015
Case Number
A627/2011
Procedural Posture
Criminal Appeal / Appeal Against Convictions and Contempt of Court Finding
Outcome
Appeal upheld; all convictions and sentences set aside; appellants acquitted on all counts, including contempt of court.
Judges
Kubushi, Tsatsi
Legal Topics
Corruption Act, Contempt of Court, Record Reconstruction, Criminal Procedure Act, Fair Trial Rights
Criminal Law Civil Procedure Corruption Act Contempt of Court Record Reconstruction Criminal Procedure Act Fair Trial Rights

Case Brief

Summary, issues, holding and outcome

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Parties

Magdalena Adriana Van der Merwe

Appellant

Phenster Production CC

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Convictions and Contempt of Court Finding

Legal Issues

  1. 1 Whether the reconstructed trial record was sufficient for a fair adjudication of the appeal.
  2. 2 Whether the convictions for active corruption and fraud could stand in light of the incomplete record.
  3. 3 Whether the conviction for contempt of court was justified given the medical evidence presented.

Ratio Decidendi

The appeal court found that the reconstructed record was so deficient, particularly regarding the evidence of the key state witness, that a fair adjudication of the appeal was impossible. The defects were material and irreparable, necessitating the setting aside of all convictions and sentences. Regarding the contempt of court conviction, the court held that the second appellant had provided a reasonable and acceptable explanation for her absence, supported by medical certificates and an affidavit. The trial court erred in rejecting this evidence and in finding her guilty of contempt. Both the convictions and the contempt finding were set aside, and the appellants were acquitted on all...

Court Disposition

Appeal upheld; all convictions and sentences set aside; appellants acquitted on all counts, including contempt of court.

Orders

  • The first and second appellants' appeal against all convictions succeeds.
  • The order of the trial court is set aside and substituted with: 'The first and second accused are found not guilty on all counts and are discharged.'