Staff reporter
Bloemfontein – Following a series of publications in which we reported how at least 18 cases of convicted criminals won their appeals based on the state’s failure and poor or rather lack of record keeping, another convicted rapist won his appeal on 6 February 2023, and the blame this time goes to the regional magistrate.
The case involved Themba Blom who was convicted of rape in 2014 and sentenced to 20 years of direct imprisonment.
According to the appeal Judge, the regional magistrate in Ventersburg failed to guide the Themba Blom, which led to unfair justice.
Blom according to Judge Loubser also struggled to be assisted with preparing an application for leave to appeal which he finally did in 2022 July by another regional magistrate.
According to court papers, Blom who was 23 at the time had sex with his brother’s wife and in his version it was consensual, however, the complaint version was different and Blom failed to address the material matters in his cross-examination of the complainant and the presiding officer did not help the accused and ordered the NPA to determine whether Blom should be tried de novo before another magistrate.
This is not the first time a judge refers a matter back to the NPA, a convicted rapist who was charged with raping a 3-year-old won his appeal after the state failed to provide court records, and the matter was referred to NPA for a decision, we asked NPA and we still waiting to hear if the now 13 years rape victim will have to go throw the same trauma.
With National Prosecuting Authority (NPA) and Justice Ministry opting to be non-responsive, Step UP SA News found a 2020 Judgment by judges Daffue and Loubser after MK Nkhale was convicted and sentenced to 20 years for alleged robbery in 2014.
His appeal was upheld after the state failed to provide court records just like 18 other cases in Frankfort/Hilbron area.
COURT CLERKS UNDER FIRE
The DCRS Clerk (CRT Clerk) stated as follows, and I quote the full statement dated 1 August 2019 verbatim:
“I Vuyiswa Ntetha with a personal number 22572520 declare as follows on the 23rd February 2018 I was working in Ventersburg as a CRT Clerk. I tested the machine and listen to the recording whether its audible as my daily routine and proceeded to enter cases for the day.
There was an application for leave to appeal case number SHVB 22/2017 which was recorded from the appearances to finalization. Since 2007 working as a DCRS Clerk (CRT Clerk) I have been doing my daily routine as expected of me. They have never complained about the cases I’ve recorded as I’m doing my job to satisfaction.
When Ms. Wolmarans (Supervisor) informed me about this case, I enquired from the Ventersburg Court Manager Mr. Mohlakwana, He explained to me that since the CRT Machine was installed there was no server Only now this month (July 2019) the server was installed. I was not made aware of this We were not supposed to use the machine while there’s, no backup (server).”
On receipt of the appellant’s petition, the Senior Administration Officer of the Magistrate’s office in Welkom addressed a letter to the court a quo on 15 July 2019 and similar letters dated 12 August 2019 to the prosecutor, Mr. R Lekhetho and Legal Aid attorney, Mr. Fourie to assist with the incomplete record.
I quote:
“I have searched the case on the CMM with the case number, date, name of the accused, Presiding Officer, the name of the Court Clerk and Prosecutor but I cannot find it as well. I even engaged Mr. Mohlakoana the Office Manager of Ventersburg MC for assistance and he only provided me with the recordings of the attached transcripts.”
The transcripts referred to are those mentioned supra.
The Regional Magistrate wrote on 2 August 2019 and inter alia stated the following:
“I have searched my cupboard and office several times but cannot find these notes. I am unable to reconstruct this as I do not have any notes for this case.
I find it strange that on more than one occasion cases with missing record/s are also cases that I cannot find to reconstruct. I have requested the Head of Security to improve access control in this office.
I, unfortunately, cannot assist. I hereby request the Senior Admin Officer to request the attorney Mr. Fourie from LASA Kroonstad and the Prosecutor Mr. Lekhetho to assist in compiling the record with their notes.”
The Head of Legal Aid, Kroonstad Office responded as follows:
“We are unable to assist with reconstructing the record herein. We searched for our practitioners’ closed files from the archives to no avail. And the practitioner is unable to recall what transpired in the trial.”
The prosecutor also indicated the following in a letter dated 10 October 2019 which he alleged to be an affidavit. I quote verbatim:
“I have searched for my notes but without success.
I, therefore, am unable to assist with the reconstructions of those proceedings.”
The status quo remained the same since the removal of the appeal from the roll on 15 July 2020. This caused Adv Kruger of the Bloemfontein Justice Centre to place an email in the court file which was inter alia forwarded to a certain SH Olivier of the Department of Justice on 15 September 2020.
I quote her:
“I have perused the documents as supplied and it should suffice. The record can therefore be returned to the High Court. I would suggest that the clerk of the court type a cover letter explaining that the record cannot be re-constructed and as such, the record is returned. This should be placed at the front of the record. That will ensure that all the parties involved are made aware of such.
I will also inform the DPP, upon arranging a date for the hearing of the appeal, that the record cannot be re-constructed and that it must be enrolled.”
I would have expected all relevant parties, but the Regional Magistrate in particular, to keep their notes and ensure that they are properly preserved and stored. The legal practitioners should keep notes as it happens frequently that matters are part-heard or have to be taken over by a new legal representative for different reasons, such as illness, retirement, or even death. Their notes are important to assist the presiding officer to reconstruct a missing or incomplete record. Magistrates’ obligations in this regard are evident as will be explained in detail infra.
This was especially the case in this matter insofar as it was clear that the appellant was dissatisfied with the convictions and sentences. He applied for leave to appeal relatively shortly after the finalization of the trial.
What is most disturbing is the fact that the stenographer – also known as the DCRS or CRT clerk – did not do his/her most basic duties: either switch on the machine and test the machine and all the microphones before the start of proceedings or listen back to the recordings from time to time, i.e. during tea time, lunchtime or immediately after the day’s proceedings. If that was the case, he/she would have picked up early on the very first day of the proceedings – 1 September 2017 – that nothing was recorded. Then the matter would still be fresh in the minds of everybody and their notes intact. Reconstruction would have been easy to do. The same applies to the second trial date, 8 September 2017.
The excuse that no server was installed in Ventersburg where the trial was conducted is just too lame to accept. I would have thought that backups are made daily by making use of memory sticks or CDs.
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. We are living in the digital era, the so-called Fourth Revolution, but it is often forgotten that the human element can never be ignored.
Machines and sophisticated equipment must be operated by people and if the operators do not possess the necessary skills, the best equipment in the world become useless. I shall make some suggestions infra. I deemed it necessary to give this history in light of the following:
17.1 There is a duty on a presiding officer to keep a record of the proceedings.
[1] I agree with Thulare AJ,
[2] commenting as follows:
“The court clerk is the recorder of the court proceedings, the clerk of the court is the custodian of court records and the trial magistrate is the constructor of court records through presiding over court proceedings. On the general consideration of all the factors herein discussed, I find myself unable to find that the duty to reconstruct a record lies with the clerk of the court. In my view, the duty to reconstruct lies with the trial magistrate.”
The Judge President of this division warned presiding officers in a PEEC meeting on 27 March 2019 as follows:
“The Chairperson indicated that he has a list of Magistrates who allow incomplete and unchecked records to be submitted to the High Court. A Magistrate whose name appears on that list will not be allowed to act in the High Court as a Judge, and such information will be made use of when such a person applies to be appointed as a Judge. He urged Mr. Mathews to inform the Regional Court Magistrates about this.”
I was provided with an extract of the file in petition number 10/2018, RC 04/2016, where Judge President Musi requested a reconstruction of the court record. The same prosecutor was involved and his written explanation read about word for word the same as in this case.
The same Regional Magistrate in the case had the following to say:
“The notes I have for cases that have been finalized in RCP Welkom are in a state of disarray;
How that has happened is unbeknown to me.
I therefore will not be able to reconstruct any of those cases because of the possibility of relevant evidence missing or important parts of the same being mixed up with other cases.
I have tried to put them together but still believe that it is far too risky to reconstruct the entire proceedings as is required in this matter.
This may result in the tragedy of justice.”
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.
The Constitutional Court held as follows in A V Schoombee & Another and I prefer to quote quite extensively:
“It is long established in our criminal jurisprudence that an accused’s right to a fair trial encompasses the right to appeal.
An adequate record of trial court proceedings is a key component of this right. When a record ‘is inadequate for a proper consideration of an appeal, it will, as a rule, lead to the conviction and sentence being set aside.”
If a trial record goes missing, the presiding court may seek to reconstruct the record. The reconstruction itself is ‘part and parcel of the fair trial process’.
Courts have identified different procedures for a proper reconstruction, but have all stressed the importance of engaging both the accused and the state in the process.
The practical methodology has differed. Some courts have required the presiding judicial officer to invite the parties to reconstruct a record in open court. Others have required the clerk of the court to reconstruct a record based on affidavits from parties and witnesses present at trial and then obtain a confirmatory affidavit from the accused. This would reflect the accused’s position on the reconstructed record. In addition, a report from the presiding judicial officer is often required.
The obligation to conduct a reconstruction does not fall entirely on the court. The convicted accused shares the duty. When a trial record is inadequate, ‘both the State and the appellant must try and reconstruct the record’. While the trial court is required to furnish a copy of the record, the appellant or his/her legal representative ‘carries the final responsibility to ensure that the appeal record is in order’.
At the same time, a reviewing court is obliged to ensure that an accused is guaranteed the right to a fair trial, including an adequate record on appeal, particularly where an irregularity is apparent.
38 …The loss of trial court records is a widespread problem. It raises serious concerns about endemic violations of the right to appeal.
Reconstruction should not be the norm in providing appellants with their trial records. But when reconstruction is necessary, the obligation lies not only on the appellant but indeed primarily on the court to ensure that this process complies with the right to a fair trial. It is an obligation that must be undertaken scrupulously and meticulously in the interests of criminal accused as well as their victims.” (emphasis added)
This warning by the full Constitutional Court – a unanimous decision by 10 Judges – cannot be over-emphasized and my observations herein are in line therewith. In that case, the trial judge kept detailed notes of the proceedings, but when the record had to be reconstructed he did not ask for any inputs from the legal representatives of the parties.
This left the door open for the appellant’s legal representative to change tact when the Constitutional Court was approached by relying on an insufficiently transparent record insofar as the parties did not jointly undertake the reconstruction. The criticism was considered as is clear from the quotation, but the court found against the appellant. Significantly, no directives were forthcoming from the Constitutional Court as to how the problem of improper record-keeping should be addressed.
In S v Phakane the Constitutional Court stated the following:
“The failure of the state to furnish an adequate record of the trial proceedings or a record that reflects Ms. Manamela’s full evidence before the trial court, in circumstances in which the missing evidence cannot be reconstructed, has the effect of rendering the applicant’s right to a fair appeal nugatory or illusory. Even before the advent of our constitutional democracy, the law was that, in such a case, the conviction and sentence or the entire trial proceedings had to be set aside.”
Again, as in Schoombee, no directives were issued in an attempt to prevent the numerous problems experienced with missing or incomplete records.
Froneman J agreed with the majority that the appeal ought to succeed, but suggested in his minority judgment “that the matter be referred to the High Court for an investigation into whether a retrial should proceed.”
In my view, a retrial, in that case, would probably be a waste of time insofar as the murder has been committed in 2006, 12 years earlier.
In S v Van Staden the full court dealt with a similar situation as in the case and held that it is “a matter of simple logic that, had the accused taken timeous steps to appeal, a reconstruction of the record would in all I likelihood have been possible.”
The court also dealt with s 7 of the Magistrate’s Court Act about the preservation and custody of records and when they may be destroyed.
I respectfully agree with the court that abuse of the process by accused persons may cause a travesty of justice and that it is in the public interest to ensure that litigation is brought to finality as soon as possible.
It is perhaps time for courts to approach applications for condonation more strictly instead of granting such applications as a matter of course.
LOST RECORDS
As mentioned, the transcribed record does not contain the plea proceedings, any rulings made and the evidence led at the hearing.
The proceedings of 25 August 2017, when the matter was postponed to 1 September 2017, have been recorded. However, there is no transcription of the proceedings of 1 September 2017 although the proceedings were allegedly mechanically recorded according to the court a quo’s handwritten notes.
The matter was postponed to 8 September 2017 according to the handwritten notes and on that day (and not 9 September 2017 as the transcription reflects) judgment was delivered and the previous convictions were proved against Mr. Morake. The court a quo was addressed on sentence on that day where after the sentences were imposed. There is also no transcription of the application for leave to appeal proceedings in the court a quo.
SUGGESTIONS ABOUT RECORD-KEEPING AND CUSTODY OF RECORDS
In years gone by magistrates did the recordings themselves by having tape recorders on their benches and inserting tapes to record the trial proceedings, properly identifying the various tapes and making sure that the tapes were safeguarded for future reference.
I recall from experience that magistrates also kept their handwritten notes for some time to ensure that transcribed records could be amended or supplemented when the need arose, and have reason to believe that it is still the case in respect of most of them.
It appears as if the Regional Magistrate wants to convey that somebody has stolen the particular notes of the case kept in her custody in her office. If this is accepted, it is a serious reflection on security and the matter should be investigated.
Adv Botha of the DPP’s office in Bloemfontein informed the court from the bar that his office has a system in place in terms whereof the records and notes of all criminal cases dealt with by that office are systematically stored and preserved. The fact of the matter is that prosecutors are supposed to keep notes primarily to assist when the need arises as mentioned supra, but also to assist the presiding officer to reconstruct a record if so required.
I am glad to hear from Mr. Reyneke that the office of Legal Aid SA in Bloemfontein keeps records for five years and that their notes could be retrieved at any given time. This is also the case at the Kroonstad office, although the initial search for the relevant file was unsuccessful.
The missing record in the case is not an isolated incident. Similar failures should be prevented as far as possible and it is suggested that the following be adhered to by the relevant role players:
- all presiding officers, prosecutors, and legal practitioners appearing for accused persons shall keep their notes for at least five years;
- magistrates, prosecutors, and legal representatives must ensure that their notes are systematically kept, either according to the date of finalization of a case, case number, the accused’s name, or all of these;
- stenographers (DCRS – CRT – clerks) that do not know how the system works should not be appointed and if there are system changes, should be properly trained before they are allowed to do important work such as the recording of proceedings;
- stenographers should be called upon to inform the presiding officer verbally and preferably in writing daily that they have done spot checks throughout the day and that the machines were operating properly;
- courts should be concerned in granting condonation for late applications for leave to appeal, years after the event, especially where the records are either missing or incomplete;
- security should be beefed up at all courts to prevent tampering and/or theft of court records or notes.
What is of interest is this does not apply to the Free States but countrywide as the Supreme Court of Appeal and Constitutional Court raised similar concerns over record keeping as more appeals have been upheld technically because the states failed to keep records of trials.
In 2021 two students from Fort Hare University conducted a study purely focused on Alice Magistrate Court record management and their findings showed indeed records filling is a big problem due to a lack of capacity and skills.
Crispin Phiri, spokesperson for the Ministry of Justice did not respond to our questions.
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