IN THE KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG
REPUBLIC OF SOUTH AFRICA
Case No: AR122/09
In the matter between
Delivered on: 30 March
 The appellant was charged with one (1) count of rape in the
Regional division of KwaZulu-Natal, held at Verulam. On 9
September 2008, the appellant was convicted on the charge
and following the conviction was sentenced to eighteen (18)
years’ imprisonment. The appellant was granted leave to
appeal against both his conviction and sentence in terms of s
309B of the Criminal Procedure Act 51 of 1977.1
 This appeal was set down for hearing on 19 May 2009. The
appeal could not proceed due to an incomplete record and the
following order was made by the presiding judge:
1. The appeal be and is hereby adjourned to 22
2. The learned Magistrate be and is hereby required to
reconstruct the record. The record should be
re-submitted on or before 1 August 2009, to the
Pietermaritraburg High court.
 Ex facie the record it appears that the appeal was not heard
on the next date as stipulated in the order, being 22
September 2009, but postponed till 18 February 2010. No
reasons were noted on the record for postponing the matter,
but I infer from the reasons given in the application for
condonation for the late submission of the heads of argument
that the appellant required a further postponement in order to
obtain legal representation. Condonation was granted and the
matter was argued on 18 February 2010.
 Before I deal with the issues relating to the merits of the
appeal, I consider it necessary to deal with the learned
Hereinafter referred to as ‘The Act’.
Regional Magistrate’s response to the order instructing her to
re-construct the record:
The abovementioned order and the case record were
handed to me at 9h15 this morning 15 July 2009. It would
appear that it had been delivered to the office of the clerk of
court on 25 May 2009.
The record has been perused with a view to determine
where reconstruction is required. According to the report
from the transcriber problems were experienced on Tape 1.
The inaudibility appears to have occurred during the
competency testing of the complainant. I have satisfied
myself that nothing of significance could possibly have been
omitted during this proceeding.
With respect I am not in a position to reconstruct the record
as ordered without any indication as to what parts of the
record, if any, are so defective as to render it impossible for
a decision on the merits to be made thereon.
 It appears from the reasons given by the learned Regional
Magistrate that she expected the Judges of the court of
appeal to indicate and direct her to the parts of the record that
were defective. In my view, it is the duty of each and every
presiding officer to ensure that a complete record be sent to
the court dealing with the appeal, especially where indication
has been given to the court that the record is not complete. It
is interesting to note that very little time was needed by the
learned Magistrate to reconstruct the record since her reasons
were completed and filed on the very same day that she had
received the record.2
The record of the proceedings was incomplete in a number of
ways. In order to illustrate the kind of due diligence
demonstrated by the learned Magistrate when she reviewed
the record for the purpose of reconstruction, I need to quote
from the record:
Court: … So all this information you have given us, Dr Chetty
you had recorded here? – Yes
At the time of the examination? – Yes, that’s correct.
I am just checking so I can read everything that is recorded
No re-examination by prosecutor
Ms Singh: The accused has indicated that he wants me to
ask the doctor some questions.
Court: Very well, thank you.
[Transcriber’s note: No recording of further cross-examination of doctor].3
The learned Magistrate should have reconstructed this part of
the record, especially in view of Ms Singh’s request and the
ostensible agreement by the court to allow further questions.
No further questions were transcribed and law is settled once
an appeal is noted and the record of the evidence at the trial
In her letter attached to the record she indicated that she received it by 9h15
on 5 July 2009. Her written response was also finalised on the very same date,
which means that she perused the record of 97 pages, sufficiently, to answer
the queries that had been raised by the Judges on 19 May 2009.
See record page 65.
cannot be transcribed or reliably reconstructed, the conviction
and sentence must be set aside.4
 Mr du Plessis, acting on behalf of the respondent, was placed
in the invidious position of arguing the appeal not only on an
incomplete record, as stated above, but also under circumstances
where he had to ask this court to judge the conduct of the learned
Magistrate as well as the measures adopted at the competency test
of the victim, without producing any copies of the pictures used by
the learned Magistrate when she determined the competency of the
complainant. In the present matter the learned Magistrate elected to
use pictures of one Ayanda and one Bonga when she determined
the complainant’s competency. Copies of these pictures were
never submitted to this court.
We asked Mr du Plessis to address us on the procedure
adopted when the competency of the complainant was tested
and to comment on the fact that, despite all attempts to obtain
a complete case record from the magistrate’s court, it
remained incomplete. Mr du Plessis conceded that ex facie
the record there were insurmountable problems for the State.
He, however, requested a further postponement so that the
State could obtain and submit copies of the pictures used
during the competency test. Should the court not be inclined
to grant such postponement, based on the prejudice suffered
by the appellant, then he would submit that the confirmation of
competency by the appellant’s attorney at the proceedings
See S v Joubert 1991 (1) SA 119 (A) and Ndlovu v Director of Public
before the court a quo should suffice as conclusive proof of
the complainant’s competency.
 We were not persuaded, based on the information before us,
to order any further postponement. The respondent had more
than 7 months to reconstruct the record and submit a
complete record. Ultimately this court remains a court of
record and as such has to rely on the record submitted to it. It
is clear from the Magistrate’s judgment that she never referred
to any competency finding, so a further postponement would
not have remedied the procedural irregularity.5 I will deal with
the rest of the record later in this judgment.
 Mr du Plessis also raised a point in limine, which was
dismissed prior to the appeal being argued, but remains
relevant to discuss. I consider it necessary to repeat the
submissions made by him, since the learned Magistrate
certainly never dealt with the application in terms of what is
required of her by the applicable legislation.6
Prosecutions, KwaZulu-Natal, and Another 2003 (1) SACR 216 (N).
See S v Swartz 2009 (1) SACR 452 (C).
See s 309B(3)(b) of the Act.
Respondent argued that when an application for leave to
appeal is brought there is a duty on the Magistrate to carefully
consider whether another court may reach a different
conclusion. This task requires a careful analysis of the facts
and the law that provided the basis for the conviction. As has
been submitted to us, the court a quo should have
approached the question whether another court may reach a
different conclusion with ‘intellectual humility and integrity,
neither over-zealously endorsing the ineluctable correctness
of the decision that has been reached, nor over-anxiously
referring decisions that are indubitably correct to the appellate
 In my view the purpose of setting out the grounds of an appeal
is to show a court that an applicant has a reasonable prospect
of success on appeal. The decision to grant such leave must
be exercised judicially and objectively.8
See Shinga v S (Society of Advocates, Pietermaritzburg Bar as Amicus
O’Connell and Others v S 2007 (5) BCLR 474 (CC) and also para 53. See
S v Mabena & Another 2007 (1) SACR 482 (SCA) para 22.
See S v Sikosana 1980 (4) SA 559 (A).
It is evident from the record that the Magistrate has never
considered the terms of the applicable legislation, which
provides as follows:
(a) Every application for leave to appeal must set forth
clearly and specifically the grounds upon which the
accused desires to appeal.
(b) If the accused applies orally for such leave immediately after the passing
of the sentence or order, he or she must state such grounds, which must be
recorded and form part of the record.9
 I am of the view that the record reveals that the following was
stated and considered by the learned Regional Magistrate:
Court: You may stand down. Miss Singh, you will explain
rights of appeal?
Miss Singh: Yes
Court: Or leave to appeal?
Miss Singh: I have consulted with the accused with regards to leave to appeal
and I have explained fully the consequences, and what can happen if he
appeals. The accused is confident and he wants to appeal. I will therefore make
that application before the court. He says that maybe another court will come to
a different decision.
Court: So, is it against the conviction and sentence?
Miss Singh: Yes.
Court: Very well, application for leave to appeal against the
conviction and sentence are (sic) granted.
Ex facie the record, it is clear that no grounds were stated and
that the learned Magistrate could not have exercised a judicial
 Despite the procedural irregularity, the appellant was entitled
to have his appeal heard on 18 February 2010, since the
procedural irregularity could not be attributed to any fault on
his part. Irrespective of the fact that the appeal was not
properly before us, I considered it necessary to proceed with
the appeal on the basis that the appellant would be deprived
of a fair appeal process should the appeal not proceed.10
 I align myself with the sentiments expressed by Labe J and
can do no better than what is stated by him in S v Phakati:11
In his description of the values underlying a constitutional
State, Ackermann J said in S v Makwanyane 1995 (2) SACR
1 (CC) (1995) (3) SA 391; 1995 (6) BCLR 665) at para 
‘We have moved from a past characterised by much
which was arbitrary and unequal in the operation of
the law to a present and future in a constitutional
State where State action must be such that it is
capable of being analysed and justified rationally. The
idea of the constitutional State presupposes a system
whose operation can be rationally tested against or in
terms of the law. Arbitrariness, by its very nature, is
dissonant with these core concepts of our new
See s 309B(3) of the Act.
See s 35(3)(o) of the Constitution of the Republic of South Africa, 1996 and
Shinga v S; Society of Advocates’ (Pietermaritzburg Bar) supra at para 28
where the court stated:
Our approach to the matter is that there can be no doubt that s
35(3)(o) contemplates that the review or appeal it guarantees is as
fair as the trial itself must be. In determining the requirements for
fairness of an appeal, it must be borne in mind that the accused
person in prosecuting an appeal exercises a right which inures
consequent upon leave to appeal having been granted either by
the Magistrates’ Court or two judges of the High Court …
2005 (2) SACR 361 (W).
constitutional order. Neither arbitrary action nor laws
or rules which are inherently arbitrary or must lead to
arbitrary application can, in any real sense, be tested
against the precepts or principles of the Constitution.’
There rests a constitutional duty on the High court to protect
the appellants’ fundamental rights. The right to a fair
hearing as contained in s 35(3) embodies a fundamental
I now move to consider the merits of the appeal.
 The State led the evidence of the complainant, of her sister,
her mother and a medical doctor. The appellant testified in his
defence. The court a quo found the complainant to be a
credible and trustworthy witness and found that she was
sexually abused for the first time when she was raped by the
appellant. The evidence of the complainant, her being a single
witness and a young child, should have been approached and
evaluated with caution. The doctor’s testimony in the court a
quo is not reconcilable with the evidence of the complainant.
The medical evidence adduced shows that the complainant
was subjected to chronic sexual abuse. In the specific
circumstances the doctor’s opinion and performance in the
witness stand became even more important and it is
Supra para 4.
regrettable that the part of the record dealing with his
cross-examination is incomplete. In addition, it should have
been borne in mind that the doctor’s evidence does not
strengthen the version given by the complainant. In my view,
the learned Magistrate also failed to consider the
contradictions in the complainant’s statement to the police and
her oral testimony. A careful analysis shows that the
contradictions are material and that the issue of rape was
something that was suggested to the complainant by her older
sister. To put the seriousness of the suggestion in context: it
is the very same sister who was angry with the appellant, for
daring to chastise her for constantly talking to boys, and thus
who had a motive to implicate him in the offence.
In my view the learned Magistrate misdirected herself on the
facts and the law when she considered the version of the
State witnesses as being truthful and reliable. The judgment
shows that she paid lip service to the cautionary rule and
glossed over the discrepancies between the evidence of the
complainant, her sister and that of the medical doctor. Her
misdirection, coupled with all the other irregularities, resulted
in a failure of justice. I am not satisfied that the evidence as
adduced by the State showed beyond reasonable doubt that
the appellant is guilty of any criminal conduct.
Having regard to the aforegoing irregularities relating to the
re-construction of the record, and the granting of leave to
appeal when no grounds were submitted, I am of the view that
the Regional Magistrate’s conduct also requires the scrutiny of
the Magistrates’ Commission.
Accordingly I would uphold the appeal.
1. The appeal succeeds, the conviction and sentence is
hereby set aside.
2. I direct that a copy of this judgment be forwarded by the
Registrar of this court to the Magistrates’ Commission.
Luthuli, AJ: I agree.
Steyn J: It is so ordered.
Date of Hearing: 18 February 2010
Date of Judgment: 30 March 2010
Counsel for the appellant: Adv P Marimuthu
Instructed by: Pietermaritzburg Justice Centre
Counsel for the respondent: Adv du Plessis
Instructed by: Director of Public Prosecutions,