Judge sets aside a conviction of a convicted rapist after state loses records of proceedings

16 days of activism against gender-based violence (GBV), is bad news for one family, in the Free State province.

This follows the judgment handed down by Free State Hugh Court by Judge Loubser on 17 November 2022 where conviction and sentence were set aside after the appeal was upheld.

According to court papers, Neo Mofokeng was found guilty of raping a 3-year-old girl in the Frankfort Regional Court on 7 February 2012, and on 12 June 2012, he was sentenced to life imprisonment for the crime he committed.

Judge Loubser said without a court of proceedings the court found itself in a position where the appeal could not be considered.

“He now appeals against his conviction and the sentence imposed, but this Court finds itself in a position where the appeal cannot be considered since the record of proceedings in the Court a quo is not available.

In his Notice of Appeal, Neo Mofokeng contends that the State failed to prove its case beyond a reasonable doubt and that his version should have been accepted as being reasonably possibly true. He further contends that the Court a quo failed to consider the evidence in a balanced manner, which failure resulted in his conviction. It, therefore, follows that this Court needs to be furnished with the record of proceedings to enable us to consider the grounds of appeal as far as it relates to the conviction, as a starting point at least.

Unfortunately, this cannot be done. The only documents we have before us, comprise the J15 form in the Court a quo, a copy of the charge sheet, a copy of the J88 medical report relating to the child complainant, documents concerning the collection of forensic evidence for DNA purposes, and a victim impact report by a probation officer.

The record of the procedure itself, and more particularly of the evidence presented before conviction, is absent.”

While the court was unable to get proceedings at least an affidavit was provided that’s according to Judge Loubser but that was not enough.

“An affidavit by Petunia Esterhuizen, an administrative officer at the Magistrate’s Court, Heilbron, was placed at our disposal to explain the absence of the record of proceedings.

In the affidavit, she states the following:

She is the official responsible to ensure that transcripts are prepared and records are completed before an appeal is enrolled. In this case, the full transcripts could not be prepared, because the recordings could not be traced.

They were probably destroyed in a fire at the Heilbron Court on 16 February 2015. The presiding officer in the Court a quo has since retired, and he does not have his trial notes anymore. The legal representative of the Appellant at the trial and the prosecution were also unable to assist with any trial notes. In the premises, Ms. Esterhuizen advised that it is not possible to reconstruct the trial proceedings.”

Without a record of proceedings, the judge had no option but to uphold the appeal on technicalities.

“It appears from the authorities that in similar circumstances, where the records of proceedings were not available and could not be reconstructed, the appeals by those affected were upheld and the convictions and sentences set aside.”

If the appeal is upheld, conviction and sentence set aside Judge explains what that means.

“However, it does not mean that the Appellant will simply be entitled to an acquittal. Section 324 (c) of the Criminal Procedure Act[5] provides that whenever a conviction and sentence are set aside by the court of appeal on the ground that there has been any technical irregularity or defect in the procedure, proceedings in respect of the same offense to which the conviction and sentence referred, may again be instituted on the original charge, suitably amended where necessary, or upon any other charge as if the accused had not previously been arraigned, tried and convicted, provided that no judge or assessor before whom the original trial took place, shall take part in such proceedings.

The absence of any record of proceedings qualifies as a technical irregularity or defect in the procedure. The provisions of Section 324 (c) are therefore applicable.”

In Handing judgment Judge Loubser said:

“In the premises, the following orders are made:

1. The appeal is upheld.
2. The conviction and sentence of the Appellant are set aside.
3. The matter is referred to the Director of Public Prosecutions, Free State, for consideration in terms of Section 324(c) of the Criminal Procedure Act 51 of 1977.”

A lawyer who spoke on condition of anonymity explained what this judgment means.

“It’s a retrial – will the victim who was 3 years old still remember what happened 10 years ago?

They must recharge him, get a witness and decide if he is guilty or not.

Start with the victim if she still has the energy to go and testify/if not chances are the case will be dismissed, secondly how did the records disappear?

Was this case reported in the law reports?”

Phaladi Shuping, spokesperson for National Prosecuting Authority said this matter is receiving attention.

“The office is aware of the matter you are referring to, and it is receiving attention.

We are unfortunately unable to disclose any information pertaining to the matter as we are following due process.”

A 13 year old will now relive the ordeal thanks yo the state. What a way to start 16 days of GBV in 2022 for this family.

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