“Something needs to be done urgently, Judge Daffue puts the STATE on the knife edge as more and more convicted criminals are set free

Following our article dated 30 November 2022 in which a convicted rapist was set free on appeal because the state could not provide records of proceedings, things took a turn for the worst when a judge revealed that there are over 18 cases of criminals released on appeals because of the state, yes the state crucial evidence.

BACKGROUND

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.”

Step UP SA News has another judgment by Judge Daffue and just like Judge Loubser he is appalled.

In this case, Evans’ Uncle Phelembe appealed against his conviction and sentencing.

On 4 February 2016, he was convicted and sentenced on two counts of robbery with aggravating circumstances and sentenced to eight years imprisonment in respect of each count.

Just like the abovementioned case:

a. none of the trial records in this matter could be traced;
b. a call was logged to Helpdesk, but no recording was found to be converted from the Digital Court Recording System (DCRS) to the Court Recording Transcription (CRT);
c. enquiries made to the presiding officer were not helpful in that he had retired by that time and did not have any trial notes anymore;
d. the legal representative who appeared for the appellant on behalf of Legal Aid SA did not work for Legal Aid SA anymore and no trial notes or file could be found;
e. the prosecutor did not have any trial notes and was not able to assist with the reconstruction of the record.
There is more, according to this report a total of 18 appeals from the Heilbron, Villiers, and Frankfort courts were affected as a result of incomplete records. In the one case, that of Bongani Elliot Mnguni, the same note was made as in the case of the present appellant.
Judge Daffue went for the chin:
“It is apparent that a serious problem is not only experienced in the Regional Court sitting in Heilbron, the neighboring towns Frankfort and Villiers but throughout the country.
In Mnguni VS my colleague Reinders and I dealt with the appeal of Mr. Mnguni. Judgment was delivered in that matter on 29 November 2021. In that case, we were able to adjudicate the appeal on the merits notwithstanding an incomplete record which distinguishes that matter from this case. As in this case, Ms. Esterhuizen also deposed to an affidavit in that case to explain the problems experienced in Heilbron.
In S v Nkhahle my colleague Loubser and I were also confronted with an incomplete appeal record due to the mechanical recording of proceedings being defective. In that case, a reconstruction of the record was impossible due to a lack of notes being kept by all relevant parties to the criminal trial. I wish to reiterate what I said then:
It becomes more and more prevalent, from my own experience dealing with reviews and appeals in this division, but also reading judgments from other divisions, that courts of appeal are confronted with missing and/or incomplete records. Something needs to be done urgently.’
I continued as follows:
‘The only comment I allow myself to make in this regard is that it would be a travesty of justice if more and more convicted criminals are allowed to walk free because of incomplete or lost records. Regional magistrates deal with serious criminal cases and may even impose life imprisonment. Record-keeping should be prioritized.’
Also, in S v Sekoto a conviction and sentence were set aside due to an incomplete record.
I am not the only judge in this country that experiences these kinds of problems. The Constitutional Court has held as long ago as 2016 in S v Schoombee and Another ‘that the loss of trial court records is a widespread problem’. Something has to be done sooner than later.
I made certain suggestions on record-keeping and custody of records in Nkhahle which I do not intend to repeat. It is time that everyone concerned in the judicial system should take cognizance of this serious problem and follow the suggestions in Nkhahle.

Mr. Strauss, who appeared on behalf of the State, conceded that the appellant’s appeal against his convictions and sentences should succeed in the circumstances. This court has no other option than to issue such an order. The record is not only inadequate for proper consideration of the appeal but there is no record at all. In S v Chabedi the Supreme Court of Appeal confirmed the well-known principle that the record of proceedings in the trial court is of cardinal importance insofar as it forms the whole basis of the rehearing by the court of appeal.

I again raise my concern about granting applications for condonation as of right to convicted criminals. Section 309B(1)(b) of the Criminal Procedure Act 51 of 1977 (CPA), dealing with appeals from the lower courts, stipulates that a convicted person shall apply for leave to appeal within 14 days after passing of sentence or within the such extended period the court may allow on good cause shown. In this case, the appellant was convicted and sentenced on 4 February 2016. On his version, he only applied in October 2017 to Legal Aid SA for assistance with an application for leave to appeal, to wit 20 months after the finalization of his case in the Regional Court.

Hereafter the appellant was informed of the problems experienced with incomplete records. If the application for leave to appeal was made on the same day or within the time stipulated by the CPA, the notes of the presiding officer, the prosecutor, and the Legal Aid attorney would still be available to assist with the compilation of a proper record. Also, on assumption that the proceedings were properly recorded, the recording would hopefully be available as well to ensure that the record could be transcribed.

The following order is granted:
The appellant’s appeal against his convictions and sentences is upheld.

The order of the court a quo is set aside and substituted with the following:
‘The accused is acquitted on both counts of robbery with aggravating circumstances.’

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 on the matter as we are following due process.”

We have requested a meeting on camera with Magistrates to among others discuss cases.

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