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…

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

Mokoena v S (A36/2022 ; RC195/15)

Mokoena v S (A36/2022 ; RC195/15) [2023] ZAGPJHC 523 (19 May 2023)

Court

South Gauteng High Court, Johannesburg

Case number

A36/2022

Judges

PJ Johnson, T Thupaatlase

The High Court set aside a robbery conviction and sentence after finding the record incomplete, the State evidence contradictory, and the appellant’s version possibly true.

• Robbery With Aggravating Circumstances
• Appeal Procedure
• Reconstruction Of Record
• Credibility Of Witnesses
• Criminal-law
• Robbery-with-aggravating-circumstances

Tlhabakoe v S (CAF 04/2022)

Tlhabakoe v S (CAF 04/2022) [2022] ZANWHC 59 (3 November 2022)

Court

North West High Court, Mafikeng

Case number

CAF 04/2022

Judges

Hendricks, Mongale, Reddy

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.

• Right To Fair Trial
• Missing Trial Record
• Appeal Procedure
• Condonation
• Reconstruction Of Record
• Criminal-appeal

Ngqulunga v S (2021/A102)

Ngqulunga v S (2021/A102) [2022] ZAGPJHC 547 (9 August 2022)

Court

South Gauteng High Court, Johannesburg

Case number

2021/A102

Judges

Dlamini, Matsemela

The court found that the defects in the record were substantial, with the entire evidence in chief and cross-examination of the complainant missing, as well as the absence of the appellant's evidence. The magistrate's judgment was brief and did not adequately summarize the evidence. Attempts to reconstruct the record were unsuccessful due to the unavailability of key participants. Given the passage of twelve years since conviction and the impossibility of meaningful reconstruction, the record was deemed wholly inadequate for proper consideration of the appeal. Consequently, the conviction and…

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• Incomplete Record On Appeal
• Conviction And Sentence
• Reconstruction Of Record
• Robbery With Aggravating Circumstances
• Attempted Murder
• Unlawful Possession Of Firearm

Moyeng v S (A264/17)

Moyeng v S (A264/17) [2021] ZAGPPHC 706; 2021 (2) SACR 538 (GP) (13 May 2021)

Court

North Gauteng High Court, Pretoria

Case number

A264/17

Judges

PM Mabuse, TV Raikane

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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• Right Of Appeal
• Missing Trial Record
• Fair Trial Rights
• Reconstruction Of Record

Mogale City Local Municipality v IMATU obo Moreki and Others (JR1611/16)

Mogale City Local Municipality v IMATU obo Moreki and Others (JR1611/16) [2020] ZALCJHB 12 (29 January 2020)

Court

Labour Court Johannesburg

Case number

JR1611/16

Judge

C Mogane

The court found that the missing portions of the arbitration record were material to the determination of the review application. The applicant took all reasonable steps to reconstruct the record, but was thwarted by circumstances beyond its control, including the unavailability and eventual departure of the commissioner. The respondent's criticisms regarding the applicant's diligence were unfounded, as the applicant consistently attempted to facilitate reconstruction and kept the respondent informed. The inability to reconstruct the record was not due to the applicant's fault. In such circum…

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• Review Of Arbitration Award
• Dismissal For Lack Of Prosecution
• Remittal For De Novo Hearing
• Reconstruction Of Record
• Section 158 Application

S v Mentoor (C946/2018)

S v Mentoor (C946/2018) [2019] ZAWCHC 139; 2020 (1) SACR 104 (WCC) (28 October 2019)

Court

Western Cape High Court, Cape Town

Case number

C946/2018

Judges

R.C.A. Henney, M.I. Samela

The High Court found that the Magistrate erred in reconstructing the record of the plea proceedings without proper certification and by informally confirming the reconstructed record with the accused. The Magistrate further erred by questioning and convicting the accused twice on the same charge under section 112(1)(b) of the Criminal Procedure Act, which is not permitted unless the original proceedings have been set aside. The accused's denial of knowledge of unlawfulness during the second questioning meant that an essential element of the offence was not admitted, and the proceedings should…

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• Reconstruction Of Record
• Double Jeopardy
• Section 112 1 B Procedure
• Conviction And Sentence
• Powers Of Magistrate
• Review Proceedings

S v Okafor and Others (R155/2019, 1121/15)

S v Okafor and Others (R155/2019, 1121/15) [2019] ZAFSHC 212 (17 October 2019)

Court

Free State High Court, Bloemfontein

Case number

R155/2019, 1121/15

Judges

Naidoo, Ramlal

The court held that the reconstructed record was substantially accurate and sufficient for the trial to continue. The alleged prejudice to accused 1 and 3, arising from missing submissions by their previous attorney, could be cured by recalling witnesses to verify the reconstructed evidence and allowing the accused to make the relevant submissions. The magistrate retains the duty to ensure a proper record and is not functus officio. There is no legal basis to set aside the proceedings and order a de novo trial in a part-heard matter where the record can be reconstructed and verified. Setting…

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• Reconstruction Of Record
• Fair Trial Rights
• Trial Within A Trial
• Procedural Irregularity

S.N.N v Shai and Another (55481/13)

S.N.N v Shai and Another (55481/13) [2018] ZAGPPHC 467 (4 May 2018)

Court

North Gauteng High Court, Pretoria

Case number

55481/13

Judge

MMP Mdalana-Mayisela

The High Court postponed a review application sine die, ordering reconstruction of the missing record and requiring a magistrate to furnish reasons for a divorce order.

• Review Of Magistrate Decision
• Failure To Furnish Reasons
• Reconstruction Of Record
• Divorce Proceedings
• Review-of-magistrate-decision
• Failure-to-furnish-reasons

NEHAWU obo Netshivubgululu v General Public Service Sectoral Bargaining Council and Others (JR1020/15)

NEHAWU obo Netshivubgululu v General Public Service Sectoral Bargaining Council and Others (JR1020/15) [2017] ZALCJHB 372 (10 October 2017)

Court

Labour Court Johannesburg

Case number

JR1020/15

Judge

Schensema

The Labour Court refused condonation and dismissed leave to appeal after finding the explanation for late filing incomplete and prospects of success poor.

• Condonation For Late Filing
• Leave To Appeal
• Reconstruction Of Record
• Prospects Of Success
• Condonation
• Leave-to-appeal