IN THE HIGH COURT OF SOUTH AFRICA (Northern Cape High Court, Kimberley) JUDGMENT: SPECIAL REVIEW

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1 Reportable: YES / NO Circulate to Judges: YES / NO Circulate to Magistrates: YES / NO Circulate to Regional Magistrates: YES / NO IN THE HIGH COURT OF SOUTH AFRICA (Northern Cape High Court, Kimberley) In the matter between: Case Nr: KHS 3/2010 Case Heard: 30/08/2010 Date delivered: 10/09/2010 The State and Willem Lottering ACCUSED Coram: Lacock J et Olivier J Olivier J: JUDGMENT: SPECIAL REVIEW 1]. During 2008 the accused pleaded not guilty to a charge of rape (allegedly committed on 27 August 2007) and tendered an exculpatory plea explanation. Thereafter the evidence of the complainant, a 10 year old girl, was presented. After a postponement the accused s legal representative withdrew, another legal representative was appointed and the trial had to be postponed. 2]. On 2 April 2009, when the trial was supposed to resume, the charge sheet was missing. It thereafter appeared that the regional magistrate s notes had also gone missing from her

2 2 office and that no recording of the proceedings was available (either because the proceedings had never been recorded or because the recording had been deleted). 3]. The regional magistrate has submitted the matter for review and has requested that the proceedings be set aside and that the matter be remitted for trial de novo by a different presiding officer. 4]. It is common cause at this stage that it is not possible at all to reconstruct the record. 5]. It was directed that the applicability and/or correctness of the case of S v Matthys 1 be argued and considered. For these purposes the prosecution was represented by advocate T E Barnard of the office of the Director of Public Prosecutions and the accused by advocate J J Schreuder, who kindly agreed to act as amicus curiae for the accused. We are indebted to them for their assistance and able arguments. 6]. Both mr Barnard and mr Schreuder suggest that the proceedings be set aside and I agree that it would, in the circumstances of this matter, be appropriate to do so. 7]. When it comes to the question whether the proceedings in a criminal matter should be set aside, a distinction is often drawn between cases where the trial has been completed (and the accused has been convicted and sentenced), on the one hand, and cases where the proceedings have not yet been completed (either because the accused has not been convicted or because the accused has been convicted, but not sentenced), on the (1) SA 209 (C)

3 other hand ]. In the case of completed proceedings the conviction and sentence will be set aside where it is found that the absence of a record would frustrate the accused s rights as regards an appeal or a review 3. Such a finding and order will, however, only be made once it is clear that the record cannot be reconstructed and that the accused is not to blame for that fact 4. 9]. The test would therefore seem to be whether the absence of a record (or of a reconstruction thereof) would prejudice the accused in a particular case. In my view the test should be no different when it comes to incomplete proceedings. 10]. It is almost inconceivable that the unavailability of any form of recording of the evidence of the complainant would not prejudice the accused in this matter. Should the trial be allowed to proceed, reference to her evidence may become necessary for the purposes of cross-examining other witnesses, and will most certainly be essential for the purposes of addressing the Court on conviction and, if convicted, on sentence. Should a dispute then arise as regards what exactly the evidence of the complainant had been on a particular issue the accused will undoubtedly be prejudiced. 11]. The same would apply to the prosecution insofar as the 2 Ibid, at 211A-B 3 S v Sebothe and Others 2006 (2) SACR 1 (T) para [8]; S v Collier 1976 (2) SA 378 (C); S v Mcophele 2007 (1) SACR 34 (E); S v Miggel 2007 (1) SAVR 675 (C); S v Talenyane 2006 (2) SACR 153 (O); S v Appel 2004 (2) SACR 360 (E); S v Fredericks 1992 (1) SACR 561 (C); S v K 1991 (2) SACR 190 (B); 4 S v K, supra, at 192i-194b; S v Ntantiso and Others 1997 (2) SACR 302 (E); S v Leslie 2000 (1) SACR 347 (W) at 353D-E; S v Van Staden 2008 (2) SACR 626 (NC), [2008] 3 All SA 476 (NC).

4 4 prosecutor may, for instance, be unable to confront the accused with the contents of his plea explanation or with what was put (or not put) to the complainant in cross-examination. 12]. For these reasons I respectfully disagree with the finding of Marais J in S v Catsoulis 5 that an accused has no interest or concern in whether evidence has been, and still is, recorded and that the unavailability of a record cannot affect the proceedings. 13]. As regards the interests of the prosecution, it must be borne in mind that the accused is not the only party in a criminal trial who is entitled to the protection of his/her constitutional and procedural rights. The prosecution represents the community and as such also has interests which should be protected. If required, the interests of the accused and those of the prosecution may have to be balanced and weighed up against each other 6. 14]. To without more adopt the attitude that the present accused is at this stage entitled to a verdict 7 would in the circumstances of this case in my view amount to a grave injustice, as it would inevitably mean that the accused would be acquitted. The community could hardly be expected to understand, and accept as justified, an acquittal on a purely technical ground on a serious charge like that of the rape of a 10 year old girl 8. 15]. The unavailability of a record in this matter, and the impossibility of reconstructing it, may not render the (4) SA 371 (T) at 372E-H 6 Ngkaleka v S [2000] 2 All SA 217 (NC) at 226d 7 Section 106 (4) of the Criminal Procedure Act, 51 of Ngkaleka v S, supra, at 226d-e

5 5 incomplete proceedings a complete nullity 9. It does, however, create an impasse in the sense that it is never going to be possible to finalise the trial. In my view neither the accused nor the prosecution (representing the community) can be expected to accept this state of affairs indefinitely ]. It seems to me that this impasse can be resolved in one of two ways: 16.1] One way would be to refuse to set aside the proceedings thus far and to remit the matter for further trial. The inevitable result will be the acquittal of the accused, with the concomitant impossibility of prosecuting him again for the same offence ] The other solution would be to set aside the proceedings, on the basis that the unavailability of the record constitutes an irregularity which will prejudice the accused and the prosecution should the trial continue. This would leave it open to the prosecuting authority to decide whether to charge the accused with the same offence again or not. 17]. In my view the latter would in the circumstances of this case be the proper approach. The offence concerned is of a very serious nature. In the case of the accused, as a 41 year old person, the prescribed minimum sentence would be life imprisonment 12. The community has an obvious interest in the proper completion of trials regarding such serious offences. 9 Hiemstra s Criminal Procedure, Kruger, Compare S v Makoni and Others 1976 (1) SA 169 (R) 11 Section 106 (1)(d) of the Criminal Procedure Act 12 Section 51 (1), read with Part I of Schedule 2, of the Criminal Law Amendment Act, 105 of 1977

6 6 18]. I realise that the accused, on the other hand, has the right to finality. That right, however, has to be balanced against, and is in the circumstances of this case outweighed by, those of the prosecution, the complainant and of the community at large ]. The setting aside of partial criminal proceedings is by no means a novel concept. It has on several occasions been done 14. In Quali it was held (at 584A-B) that: where there is a missing or defective record which cannot be reconstructed and a further step in the proceedings needs to be taken, whether it be the completion of the matter before the judicial officer hearing the trial or whether it be an appeal or a review, the only course open to the Court is to set aside such proceedings. 20]. In the Catsoulis and Matthys cases already referred to, both of which also concerned incomplete criminal proceedings and lost or defective records, the Court declined to set aside the proceedings. However, both these cases, as well as the case of Rex v Wolmarans and Another 15 referred to in the Catsoulis case, are clearly distinguishable from the present matter. The possibility of a reconstruction of the record had not been ruled out in any of these cases. The setting aside of criminal proceedings on the basis of a record being defective or missing, in circumstances where the possibility of a reconstruction still exists, would hardly be justifiable; all the 13 Section 36 (1), read with Section 35 (3)(d), of the Constitution; and compare S v Gwantshu and Another 1995 (2) SACR 384 (E) at 385h 14 S v Quali 1989 (2) SA 581 (E); S v Khan 1993 (2) SACR 118 (N); S v Gwantshu and Anotther, supra; S v La Kay 1998 (1) SACR 91 (C) TPD 279

7 7 more so where the proceedings have not yet been completed and where the accused s rights regarding an appeal or a review are not yet concerned ]. As regards the request that the matter be remitted for trial de novo, I am of the view that the approach adopted in the Quali case that this is not a matter upon which (the) Court should make any decision. It seems to me that any question of a decision as to whether the matter should be retried, would be a matter for the prosecuting authority to determine is the correct one ]. Although trials de novo have on occasion been ordered 18 the desirability of such an order does not seem to have been debated in those cases. 23]. The case of Director of Public Prosecutions, Transvaal v Viljoen 19, referred to by mr Schreuder, is distinguishable. It concerned the provisions of section 324 of the Criminal Procedure Act, which deal with Institution of proceedings de novo when conviction set aside on appeal. They obviously pertain to proceedings which have been completed and which are set aside on appeal (not review) on one of the grounds set out in subsections (a) to (c). The Court in that matter did not, 16 S v Ntantiso, supra, at 305b 17 at 583E-F; see also S v Daniels and Another 1997 (2) SACR 531 (C) at 533h-i; S v Ngeni 2001 (2) SACR 20 (E) para [24]; S v Mkosana 2004 (1) SACR 205 (Ck) para [26]; S v Lapping [1998] 1 All SA 331 (W) at 339h-i 18 S v Matji and Others 2004 (1) SACR (1) SACR 261 (W) para [18]; S v Chabedi 2004 (1) SACR 477 (W) para [24]; S v Mabona 2001 (2) SACR 306 (Ck) para [13] (1) SACR 505 (SCA)

8 8 in any event, order a trial de novo. It simply (and in accordance with the provisions of that section) ordered that Proceedings may again be instituted. (My emphasis) 24]. In the present matter we do not have information as to whether the prosecution would indeed be able to comply with an order that the accused be tried de novo and as to what the attitude and availability of the complainant and of any other witness/es are at this stage. It may be for precisely this reason that mr Barnard suggested that the approach adopted in the Quali matter be adopted and that a trial de novo not be ordered. 25]. The accused, on the other hand and in the event of the Director of Public Prosecutions deciding to charge him with the offence again, may want to exercise his rights in terms of section 342A of the Criminal Procedure Act. 26]. In the circumstances the following order is made: The proceedings against mr Willem Lottering in case number RC 38/08 in the Regional Court, held at Victoria West, are set aside. C J OLIVIER JUDGE NORTHERN CAPE DIVISION I agree:

9 9 H J LACOCK JUDGE NORTHERN CAPE DIVISION For the State: Adv T E Barnard For the: Director of Public Prosecutions, KIMBERLEY For the Accused: Instructed by: Adv J J Schreuder Amicus curiae