CC Case No.: CCT 61/16 SCA Case No.: 890/15
GP Full Court Case No.: A 186/2013 GHC Case No.: CC 26/07
In the matter between:
KLAAS LESETJA PHAKANE Applicant
and
THE STATE Respondent
RESPONDENT’S PRACTICE NOTE
a. Names of the parties and case number:
Klaas Lesetja Phakane (Applicant) versus The State (Respondent) – case number: CCT 61/16.
b. Nature of proceedings:
Application for leave to appeal against the dismissal of an appeal against conviction by a Full Court of the High Court, Gauteng Division,
Pretoria (“the Court a quo”) under case number A186/2013 and against the dismissal of an application for leave to appeal against conviction by the Supreme Court of Appeal under case number 890/15. In terms of the present application for leave to appeal before this Honourable Court, the Applicant seeks relief in the form of the setting aside of his conviction and sentence based on his averment that his right of appeal under his right to fair trial in terms of section 35(3)(o) of the Constitution of the Republic of South Africa, 1996 (“the Constitution”) was violated by an incomplete appeal record filed in the Court a quo.
c. The issues that will be argued:
1. Whether the Applicant’s right of appeal subsumed under his right to a fair trial in terms of section 35(3)(o) of the Constitution was violated by the lodging of an incomplete appeal record in the Court a quo;
whether that is, the Applicant had a valid appeal in light of the incomplete record.
2. Whether, despite defects, the appeal record filed in the Court a quo was adequate for an adequate reappraisal of the Applicant’s appeal case and an informed decision on it.
3. Whether the right of appeal or review entails the lodging of a full verbatim record of proceedings in the trial court, or instead an adequate record that is materially correct and complete.
d. An indication of portions of the record that are necessary for the determination of the matter:
1. Notwithstanding that the substantive issues to be determined in the present application relate to the filing of an incomplete appeal record in the Court a quo, a material and substantive record was lodged in the Court a quo, which the Respondent respectfully submits cures the missing portions of the record. Furthermore, both the trial Court and the Court a quo had regard to the totality of the evidence adduced at trial, including the other evidence that was transcribed and which forms part of the record, in respectively convicting and confirming the conviction of the Applicant.
2. The Respondent thus, in terms of Rule 20(1)(c)(i) of the Rules of the Constitutional Court, endeavoured to reach agreement with counsel for the Applicant, as per the Respondent’s letter dated 27 February 2017 to the Chairperson of the Pretoria Society of Advocates for the attention of the Applicant’s counsel, on the filing of a record before
this Honourable Court and what should be included in the record.
The Respondent, however, has received no feedback from counsel for the Applicant in this regard.
3. Counsel for the Applicant have moreover in terms of Rule 20(1)(c)(i) of the Rules of the Constitutional Court not applied to the Chief Justice for directions to be given in regard to the compilation of a record.
4. In the circumstances, with respect, no indication can at this stage be given by the Respondent on the portions of the record that are necessary for determination of the matter.
5. It is nevertheless respectfully submitted that it is in the interests of justice for the determination of the matter for the record filed in the Court a quo to be filed in this Honourable Court.
e. An estimate of the duration of oral argument:
Approximately two hours.
f. A summary of the Respondent’s argument:
1. It is respectfully submitted that there are no reasonable prospects of success on appeal and thus it is not in the interests of justice that leave to appeal be granted.
2. It is respectfully submitted that this Honourable Court has no jurisdiction to decide on the factual issue of whether the evidence established the guilt of the Applicant on the murder charge beyond a reasonable doubt. It is the matter of the Applicant’s right of appeal that must be decided in the present matter. The Applicant’s right to be informed of the charge with sufficient detail to answer it and the right to adduce and challenge evidence are not applicable in the present matter, as these rights apply at the trial stage of proceedings.
3. It is respectfully submitted that a decision relating to an issue of a fair trial cannot be made in a vacuum or in the abstract, but at a practical level and is intimately reliant on the specific facts of the particular case at hand.
4. It is respectfully submitted that fairness is not a one-way street conferring an unlimited right on an accused to demand the most favourable possible treatment or procedures imagined. There is no
such thing as perfect justice. A fair trial also requires fairness to the public as represented by the State.
5. It is respectfully submitted that the right of appeal or review envisages and implies the opportunity for an adequate reappraisal of every case and an informed decision on it.
6. It is thus respectfully submitted that if the record of proceedings in the trial court, that forms the basis of the rehearing by the appellate court, is inadequate for a proper consideration of the appeal, it will, as a rule, lead to the conviction and sentence being set aside.
7. Nevertheless, the trite requirement is that the record must be adequate for a proper consideration of the appeal; not that it must be a perfect recordal of everything that was said at the trial.
8. It is respectfully submitted that an adequate record can either be a transcription of proceedings, a handwritten version of the proceedings and/or a reconstructed record. The test for an adequate record is whether the record is “materially” correct and complete, and such must be evaluated in the context of the particular case and not in a vacuum.
9. It is respectfully submitted that where defects exist in a record, the record may nonetheless be adequate for a proper consideration of an appeal or review.
10. It is respectfully submitted that the question whether defects in a record are so serious that a proper consideration of the appeal is not possible, cannot be answered in the abstract. It depends, inter alia, on the nature of the defects in the particular record and on the nature of the issues to be decided on appeal.
11. An appeal, with respect, does not necessarily require consideration of a complete record of the entire proceedings in the trial court.
12. It is respectfully submitted that an impossible situation would be created if an appeal by an accused were to be upheld in all cases where the record is not perfect or complete.
13. It is respectfully submitted that it is trite law that an accused on appeal or review is not ipso facto entitled to his or her discharge if the record or portions thereof get lost. The best possible secondary evidence of the record should rather be obtained with a view to reconstructing the record.
14. It is respectfully submitted that if an appellant complains that a conviction should be set aside on account of a defective appeal record, the appellant ought to make his or her contribution to reconstructing the record. Where a record on appeal is missing, the appellant has a duty to take the court into his or her confidence concerning the evidence led in the case. The right to a fair trial is not a game of catch as, catch can.
15. It is respectfully submitted that in the process of reconstructing a record on appeal or review, information on what was testified (or said) during the trial, can be obtained and should be sought from every source which can contribute. The secondary sources which can contribute to reconstructing the record include the presiding judge’s or magistrate’s notes, witness statements and the presiding officer’s judgment on conviction particularly where the evidence and the cross-examination of witnesses are fairly detailed in the judgment.
16. It is respectfully submitted that where a defective record cannot be restored by any of the recognised means of reconstruction, the
issue as to the missing evidence may be settled by way of admissions by the parties or in some other manner.
17. It is respectfully submitted that the entire record in the present matter is not lost, but only a limited portion thereof. It is respectfully submitted that, as is demonstrated, there is sufficient secondary evidence in the appeal record filed in the Court a quo of what the missing material evidence consisted of. It is respectfully submitted that the record that is available constitutes a sufficient secondary source of the material content of the lost evidence.
Hence, the available record, with respect, effectively reconstructs the missing evidence, and consequently cures the defects in the record. This in conjunction with the other circumstantial evidence that is on record rendered the record on appeal adequate - indeed complete with what is tantamount to a reconstruction - in all material respects for an adequate reappraisal of the appeal case and an informed decision on it. The Applicant’s right of appeal was thus, with respect, not violated by the missing portions of the record.
g. A list of authorities on which particular reliance will be placed during oral argument:
1. Key v Attorney-General, Cape Provincial Division, and Another 1996 (2) SACR 113 (CC)
2. National Director of Public Prosecutions v King 2010 (2) SACR 146 (SCA)
3. S v Basson 2004 (1) SACR 285 (CC) 4. S v Boesak 2001 (1) SACR 1 (CC) 5. S v Chabedi 2005 (1) SACR 415 (SCA) 6. S v Collier 1976 (2) SA 378 (C)
7. S v Leslie 2000 (1) SACR 347 (W) 8. S v Mantsha 2009 (1) SACR 414 (SCA) 9. S v Ndlovu 1978 (3) SA 533 (T)
10. S v Ntantiso and Others 1997 (2) SACR 302 (E) 11. S v Ntuli 1996 (1) SACR 94 (CC)
12. S v S 1995 (2) SACR 420 (T)
13. S v Shaik and Others 2008 (1) SACR 1 (CC) 14. S v Steyn 2001 (1) SACR 25 (CC)
15. S v Whitney and Another 1975 (3) SA 453 (N) 16. S v Zondi 2003 (2) SACR 227 (W)
17. F De Jager ‘Reviews and Appeals in Cases of Criminal Proceedings in Lower Courts’ in E du Toit, FJ de Jager, A Paizes, A St Q Skeen
& S van der Merwe (gen ed) Commentary on the Criminal Procedure Act (RS 56 2016)
