South Africa Case Law

Muravha v Minister of Police (179/2022)

Muravha v Minister of Police (179/2022) [2024] ZASCA 11; 2024 (4) SA 84 (SCA) (30 January 2024)

Court

Supreme Court of Appeal

Case number

179/2022

Judges

Mocumie, Carelse, Hughes, Goosen, Tokota

The Supreme Court of Appeal held that the absence of the trial record rendered it impossible for the full court to properly adjudicate the appeal, particularly where factual findings and credibility assessments were disputed. The attempts to reconstruct the record were inadequate, and both parties failed in their duty to preserve or reconstruct the record. The full court erred in assuming that the facts were not in dispute and in deciding the appeal without the record. The appellant was denied his constitutional right to a fair trial and appeal. Consequently, the only just remedy was to remit…

Source excerpt

• Lost Trial Record
• Reconstruction Of Record
• Fair Trial Right
• Misdirection On Facts
• Remittal For Rehearing

Opperman v S (A570/2013)

Opperman v S (A570/2013) [2016] ZAGPJHC 304 (27 May 2016)

Court

South Gauteng High Court, Johannesburg

Case number

A570/2013

Judges

L T Modiba, R Keightely

The High Court set aside Opperman’s conviction and sentence after finding his trial record was lost, irretrievable, and his appeal rights were prejudiced through no fault of his own.

• Right To Fair Trial
• Lost Trial Record
• Condonation For Late Appeal
• Appeal Procedure
• Record Reconstruction
• Constitutional Rights

Mogorosi v S (410/10)

Mogorosi v S (410/10) [2010] ZASCA 147 (29 November 2010)

Court

Supreme Court of Appeal

Case number

410/10

Judges

Ponnan, Cachalia, Leach

The Supreme Court of Appeal dismissed an appeal against refusal of condonation for a seven-year-late criminal appeal where the record was missing.

• Condonation For Late Appeal
• Lost Trial Record
• Prospects Of Success
• Judicial Discretion
• Condonation-for-late-appeal
• Lost-trial-record

Melgis v S (A446/09)

Melgis v S (A446/09) [2010] ZAWCHC 518 (29 October 2010)

Court

Western Cape High Court, Cape Town

Case number

A446/09

Judges

Brusser, Louw

The High Court set aside convictions tied to an incomplete trial record, but substituted two rape convictions with two counts of statutory rape and imposed fresh sentences.

• Lost Trial Record
• Failure Of Justice
• Statutory Rape
• Sexual Offences Act
• Constitutional Right To Fair Trial
• Criminal-appeal

Sithonga v S (A727/2007)

Sithonga v S (A727/2007) [2008] ZAWCHC 172 (11 April 2008)

Court

Western Cape High Court, Cape Town

Case number

A727/2007

Judges

Louw, Zondi

The court found that the entire record of the appellant's trial had been lost and could not be reconstructed despite diligent efforts by court officials and the parties involved. Without the record, the appellant is unable to exercise his constitutional right to have his conviction and sentence reconsidered on appeal. The only remedy in such circumstances is to set aside both the conviction and sentence, as the right to a fair trial includes the right to appeal. The State conceded that this was the appropriate order.

Source excerpt

• Right To Fair Trial
• Lost Trial Record
• Appeal Procedure

S v Mofokeng (993/2005)

S v Mofokeng (993/2005) [2005] ZAFSHC 129 (11 August 2005)

Court

Free State High Court, Bloemfontein

Case number

993/2005

Judges

J.Y. Claasen, A. Kruger

The court set aside the proceedings against an accused up to separation of trials after the trial record and judicial notes could not be reconstructed.

• Lost Trial Record
• Separation Of Trials
• Retrial
• Criminal Procedure Act
• Lost-trial-record
• Separation-of-trials

S v Joubert (221/89)

S v Joubert (221/89) [1990] ZASCA 113; 1991 (1) SA 119 (AD); [1991] 1 All SA 290 (A) (28 September 1990)

Court

Supreme Court of Appeal

Case number

221/89

Judges

Joubert, Smalberger, Milne, Kumleben, Nienaber

The Supreme Court of Appeal found that the reconstruction order was not properly complied with, as the appellant and his legal representatives were not afforded the opportunity to participate in reconstructing the lost trial record. The reconstructed record was incomplete and did not reflect all material aspects of the trial. This failure prejudiced the appellant and amounted to a failure of justice, as he was deprived of his right to a fair appeal through no fault of his own. In such circumstances, where the record cannot be properly reconstructed and a just hearing of the appeal is impossib…

Source excerpt

• Lost Trial Record
• Failure Of Justice
• Reconstruction Of Record
• Automatic Review
• Audi Alteram Partem