IN THE HIGH COURT OF SOUTH AFRICA

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IN THE KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG
             REPUBLIC OF SOUTH AFRICA

                                               Case No: AR122/09

In the matter between

T Ngidi

Appellant

and

The State

Respondent

                           JUDGMENT
                                                Delivered on: 30 March
                                        2010



STEYN J



[1]   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



[2]   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
                    September 2009.
             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.



[3]   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.



[4]   Before I deal with the issues relating to the merits of the

      appeal, I consider it necessary to deal with the learned


1
      Hereinafter referred to as ‘The Act’.


                                         2
      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.
            (My emphasis).


[5]   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




                                     3
      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
              here.
              No re-examination by prosecutor
              Witness excused
              --------------------------------------------
              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


2
      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.
3
      See record page 65.



                                       4
     cannot be transcribed or reliably reconstructed, the conviction

     and sentence must be set aside.4

[6] 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


4
     See S v Joubert 1991 (1) SA 119 (A) and Ndlovu v Director of Public


                                      5
      before the court a quo should suffice as conclusive proof of

      the complainant’s competency.



[7]   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.



[8]   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).
5
      See S v Swartz 2009 (1) SACR 452 (C).
6
      See s 309B(3)(b) of the Act.


                                     6
       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

       court.’7



[9]    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




7
             See Shinga v S (Society of Advocates, Pietermaritzburg Bar as Amicus
Curiae);
           O’Connell and Others v S 2007 (5) BCLR 474 (CC) and also para 53. See
also
           S v Mabena & Another 2007 (1) SACR 482 (SCA) para 22.
8
       See S v Sikosana 1980 (4) SA 559 (A).


                                         7
      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
                    (My emphasis).


[10] 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.
                                          Ruling
             Court: Very well, application for leave to appeal against the
             conviction and sentence are (sic) granted.
          (My emphasis)
      Ex facie the record, it is clear that no grounds were stated and

      that the learned Magistrate could not have exercised a judicial

      discretion.



[11] Despite the procedural irregularity, the appellant was entitled




                                      8
     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



[12] 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 [156]
            the following:

                   ‘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


9
     See s 309B(3) of the Act.
10
     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 …
11
     2005 (2) SACR 361 (W).



                                      9
                     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
            right.12

     I now move to consider the merits of the appeal.



     Ad conviction

[13] 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


12
     Supra para 4.


                                        10
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


                             11
      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.

[14] Order:

      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.




                                  12
____________________________

Steyn J: It is so ordered.




                             13
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,
                                   Pietermaritzburg




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