CASE NO. CA6/2001

IN THE HIGH COURT OF NAMBIA
In the matter between:

JOSE AMERICO DE ALMEIDA 						Appellant
and
THE STATE 									Respondent

Heard:        8 March 2007 Delivered:    19 November 2010

JUDGMENT

regional court on a charge of housebreaking with intent to rob and robbery with aggravating circumstances and a second count of robbery with aggravating circumstances. On the first count he was sentenced to 15 years imprisonment and on the second count to 10 years imprisonment. The appellant wishes to appeal against both conviction and sentence.
[2] During the course of the trial the mechanical record of proceedings was transcribed and used by the appellant when he addressed the magistrate before conviction. Unfortunately, when the appeal record had to be prepared, some portions of the record had gone missing. The matter was initially set down on the incomplete record. Earlier, on two occasions, the appeal was postponed in this Court for purposes of having the record reconstructed. The regional magistrate used his handwritten notes made during the trial to make summaries of the relevant witnesses' evidence-in-chief in 'telegram' style. The learned magistrate added some notes setting out the gist of the cross-examination.

[4] It seems that the missing parts of the record now include all the evidence of the witnesses Petro Stander, Elizabeth van Greunen, Phillemon Ntinda, and Leevi Erkki; the evidence in chief and part of the cross examination of the witness Magdalena Cloete; and the evidence in chief of Felix Dionisio.

4.	In the alternative the matter shall be remitted to the trial court for the purpose of leading the missing evidence of the relevant witnesses.
5.	Further and/or alternative relief."

Appeal the best secondary evidence of the last record which he or she can find.
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(b)	The Clerk of the Court must obtain affidavits to prove the loss of the record.

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(c)	The Clerk of the Court must obtain affidavits from witnesses and others who were present at the trial to prove the evidence which had been adduced.
(d)	In addition the Clerk of the Court must prove the charge or other relevant parts of the proceedings in the same manner [i.e. by affidavit, if the charges and other parts of the proceedings, e.g. the pleas are missing].
(e)	After the record has been reconstructed it must be furnished to the accused to establish whether he agrees therewith or not. The reaction of the accused must be confirmed by affidavit.
(f)	Then a further affidavit must be obtained from the magistrate to confirm the correctness of the record so reconstructed.

"It was submitted on behalf of the respondent that reconstruction could be achieved by incorporating a witness' statement since such a statement constitutes the best available evidence to prove what was testified in court.

follows (at 352-353):

"8 The acceptability of any method of dealing with the loss of records, must be guided by at least the following considerations.
8.1 Firstly, the materiality of that which is missing to the decision of the court a quo and to the appellate re-hearing (or, in review proceedings, to the consideration of whether justice was done). It may be relatively inconsequential if the evidence-in-chief of a single witness is lost but the cross-examination of that witness is available and the cross-examiner traversed the whole terrain, raising the alleged contradictions between the evidence-in-chief and later evidence. In a particular case the loss of only a portion of cross-examination may be extremely important. In another, the total loss of the evidence of a corroborating witness in a rape case may be unimportant if the complainant's evidence is supported by three other witnesses and is contrasted with that of a clearly lying accused. Examples may be added.
8.2. Secondly, it ought to be considered how effective and how fair the chosen method can be expected to be. Again there is a clear contrast between a witness called in within two weeks after the testimony is given and a policeman who, seven years after the event, has to sort out from all the other motor collisions to which he attended, the crucial distances which can determine the guilt of the accused.

[16] The reconstruction of a court record is rather a nuisance, but nevertheless a very important task. It may often be complex and not that frequently done so that the person who is burdened with this task builds up extensive experience in how to execute it. The responsibility is usually that of the clerk of the court, who may not always be knowledgeable in how to go about it. Even some of the presiding officers may not quite know how best to approach the matter. The easy way out is simply to say that reconstruction is impossible, because everyone has forgotten what happened in court or what was said in court. However, I cannot stress enough how vital it is that this task be carried out with diligence and with the mindset that a serious effort should be made to gather together as much of the contents of the record as

for some accused is that the docket or the recording of evidence goes astray." If unscrupulous convicted accused form the opinion that efforts at reconstruction are not meticulously carried out, the number of lost records will surely rise, especially in serious cases where heavy sentences are imposed.

[19] On the other hand, the prejudice suffered by the appellant in granting the postponement is also great in that it will mean a further delay until his appeal may be heard while he is in detention serving a sentence for convictions that may be overturned. He obviously has an interest in the finality of the matter at least at this level of the Court hierarchy. He also points out that the funds intended to be used for the appeal hearing itself may be exhausted before the matter is heard. It does seem to me that in the interim he could have used the time to gather further funds or to apply for Legal Aid. However, it is clear that, at the other end of the scale, the interests of the administration of justice require that an appellant should not suffer unduly because of a delay in reconstructing a record which initially was incomplete through no fault of the appellant, according to the available information.

[23]   In the result the following order is made:
1. The matter is postponed to a date, for the hearing of the appeal, to be arranged with the Registrar, which shall be a date during the first term of 2011. The parties must approach the Registrar at 09h00 on the first Wednesday after the date of this order to arrange the date of hearing.
2. The Clerk of the Court, Windhoek must, with the assistance of the Office of the Prosecutor-General, obtain affidavits from the witnesses Petro Stander, Elizabeth van Greunen, Phillemon Ntinda, Leevi Erkki, Magdalena Cloete and Felix Dionisio to prove the evidence which was adduced at the trial in the manner set out in this judgment.
3. After the record has been reconstructed it must be furnished to the appellant to establish whether he agrees therewith or not. The reaction of the appellant must be confirmed by affidavit.
4. If it is not possible to reconstruct the record, the Clerk of the Court must state so on affidavit together with detailed reasons why it could not so be reconstructed.
5. The reconstruction process must be done under the supervision of a senior magistrate in the Magistrate's Office, Windhoek and must be completed by the end of January 2011.
6. The appellant must file an application for condonation for the late filing of the amended notice of appeal dated 22 August 2006 should he wish to prosecute the appeal.

VAN NIEKERK, J

I agree.

SULUNGWE, AJ

Appearance for the parties: 

For appellant:				Adv G S Hinda
						Instr. by Ueitele & Hans Legal Practitioners

For respondent:				Adv E E Marondedze 
						Office of the Prosecutor-General