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South Africa decisions
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Kekae v S (A282/17) [2024] ZAGPPHC 844 (26 August 2024)
The High Court set aside a rape and robbery conviction and sentence after key evidence was missing from the record and the appeal could not be fairly heard.
Tlhabakoe v S (CAF 04/2022) [2022] ZANWHC 59 (3 November 2022)
The North West High Court upheld an appeal where the trial record could not be reconstructed, setting aside the convictions and sentences and ordering release.
Moyeng v S (A264/17) [2021] ZAGPPHC 706; 2021 (2) SACR 538 (GP) (13 May 2021)
The appeal court found that the destruction of the trial record and court books by the court manager rendered it impossible to determine the propriety of the convictions and sentences. Both the appellant and respondent agreed that the absence of the record, coupled with the impossibility of reconstruction, prejudiced the appellant's right to a fair trial and appeal. The court held that the failure to preserve the record constituted a failure of justice, and that postponing the matter for further attempts at reconstruction would be futile and unjust. Accordingly, the only just course was to se…
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Nndwambi v Clerk of the Criminal Court, Thohoyandou Magistrate's Court and Others (539/2014) [2015] ZALMPTHC 8 (1 September 2015)
The court held that the applicant's constitutional right to appeal was not irreparably frustrated, as it had not been demonstrated that all reasonable efforts to reconstruct the missing portion of the record had been exhausted. Although the respondents failed to comply with the previous order to reconstruct the record, the applicant still had alternative remedies available, such as contempt proceedings against the non-compliant parties. The setting aside of the conviction and sentence is only justified if it is impossible to reconstruct the record and the missing portion contains essential ev…
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Davids v S (A571/12) [2013] ZAWCHC 72 (18 March 2013)
The High Court upheld an appeal where the trial record was missing, holding that the conviction and sentence could not stand and setting both aside.
Gora and Another v S (A131/09) [2009] ZAWCHC 145; 2010 (1) SACR 159 (WCC) (15 September 2009)
Criminal appeal on convictions for armed robbery, attempted murder and firearm possession; convictions were confirmed, but the missing sentencing record led to resentencing.
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