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South Africa decisions
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S v Ngema (SOC 117/10, SOC 124/04) [2012] ZANWHC 12 (26 April 2012)
High Court special review of irregular criminal proceedings involving a missing record. Both sets of proceedings were set aside and the matter ordered to start de novo.
S v Baloyi and Another (1/11, 2/11) [2012] ZANWHC 2 (23 February 2012)
The reviewing court found that all reasonable attempts to reconstruct the missing records in both matters were made but proved unsuccessful. Without a reconstructed record, the court is unable to assess whether the proceedings in the lower court were conducted in accordance with justice. Accordingly, the proceedings in both matters must be set aside.
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S v Mcophele (307/06) [2006] ZAECHC 44; 2007 (1) SACR 34 (E) (8 September 2006)
The High Court found that the magistrate's attempt to reconstruct the record amounted only to a summary and evaluation of the evidence, not a true record of the proceedings. Without the actual record, the reviewing court cannot determine whether the proceedings were in accordance with justice. The use of police docket statements for reconstruction may be permissible, but in this case, no proper reconstruction occurred. The absence of a record is fatal, and the conviction and sentence must be set aside. The court also expressed grave concern over administrative failures that led to the delay i…
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