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Tshabang v The State (Criminal Appeal No. 37/1) [2002] BWCA 20; [2002] 1 B.L.R. 12 (CA) (30 January 2002)

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IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
Court of Appeal Criminal Appeal No. 37/01 High Court Criminal Trial No. 34/1992
In the matter between:
MOTLHAUDITSHABANG        Applicant
and
THE STATE        Respondent
Mr. A. Silas for the Applicant
Mrs. L. T. Dambe for the Respondent
JUDGMENT
CORAM: P. H. TEBBUTT A.J.P.
SIR JOHN BLOFELD J.A LORD R. I. SUTHERLAND ]. A.
TEBBUTT A.I.P.
This matter was brought before this Court by way of application to have the applicant's convictions and sentences in the High Court set aside and for an order that he be discharged from custody, where he presently is as a result of his convictions and sentences. The basis of his application is that an appeal by him to this court against his convictions and sentences cannot be heard because a major portion of the record of the proceedings at his trial before the High Court has been irretrievably lost and cannot be reconstructed. That is, in fact, the position. As a

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result, when the matter came before this Court for hearing the Court set aside the applicant's convictions and sentences and ordered that he be discharged from custody forthwith. These are the reasons for so doing.
The applicant was convicted on 25 May 1999 in the High Court on two counts of attempted murder contrary to Section 217 (b) of the Penal Code (Cap 08:01) and one count of unlawful possession of an arm of war and was sentenced to 7 years imprisonment on each of the two counts of attempted murder and five years imprisonment on the arms count, all to run concurrently.
The events giving rise to these counts had occurred during September 1990. The trial in the High Court commenced in 1992 but,with postponements for various reasons,was only completed on 25 May 1999. The applicant filed a notice of appeal to this Court on 15 June 1999. It was then discovered that the record of the trial proceedings could not be found. Subsequently a portion of the record was found but it was incomplete in that it only went up to a stage in the proceedings on 15 June 1995 when there was a postponement to enable the applicant, whose case was not then yet closed, to call certain further witnesses.
There is no record of what occurred during the trial thereafter and no record of the proceedings subsequent to 15 June 1995 can be found. More importantly the judgment of the learned trial judge cannot be found. On 11 December 2001 the appellant brought an application to this Court for an order (a) setting aside the

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convictions and sentences imposed on him by the High Court and (b) discharging him from custody where he has been since 25 May 1999. The basis of his application, as set out above, is that the incomplete record, and particularly the absence of a judgment by the trial court, cannot make a just hearing of an appeal possible. It is common cause that by reason of lapse of time, a reconstruction the record would not be possible. Where a record cannot be sufficiently reconstructed to make a just hearing of an appeal possible - and that certainly is the situation Jn qasu where this court on appeal would have no knowledge of the reasons of the court a quo for the conviction of the appellant - the effect would be to prejudice the appellant and may result in a failure of justice. In cases where this has occurred in South Africa it has been held that the conviction cannot stand and the court has set aside the conviction and sentence (S v. Marais 1966 (2) SA 514 (T); S v. Van Wyngaardt 1965 (2) SA 319 (0); S v Mankaie en Andere 1974 (4) SA, 113 (T); S v. Whitney and Another 1975 (3) SA 453 (N) at 456 (F). A similar result has followed in this Court where the record of the trial court has been irretrievably lost and could not be reconstructed from secondary evidence. (See Seipato Kgomotso v. The State Criminal Appeal 7 of 1994 (unreported) )
If an appellant, through no fault of his, cannot have his appeal properly heard and adjudicated upon, there may be a failure of justice. His conviction should therefore not be allowed to stand.

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Because of the lapse of time (from 1992) and the fact that applicant has already served almost three years of his sentence, a rehearing of the case would not be appropriate. The result is that the convictions and sentences of the applicant in Criminal Trial 34/1992 are set aside and it is ordered that he be forthwith discharged from custody.
DELIVERED
IN OPEN COURT THIS 30™ DAY OF JANUARY 2002.

I agree
I agree
P. H. TEBBUTT
ACTING JUDGE PRESIDENT
SIR JOHN BLOFELD JUDGE OF APPEAL
LORD R. I. SUTHERLAND JUDGE OF APPEAL

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