REPORTABLE

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.

[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 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 received the record.

	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].

	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 cannot be transcribed or reliably reconstructed, the conviction and sentence must be set aside.
[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 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. 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.

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.’

[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.

	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. 
(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 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.

[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:
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 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.
	
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 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.

[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.

____________________________
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, Pietermaritzburg