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IN THE HIGH COURT OF SOUTH AFRICA

KWAZULU-NATAL DIVISION, PIETERMARITZBURG

CASE NO. AR672/18

In the matter between:

SIBUSISO HENDRY BULOSE                                                                   APPELLANT

and

THE STATE                                                                                                 RESPONDENT

This judgment was handed down electronically by circulation to the parties’ representative by email, and released to SAFLII. The date and time for hand down is deemed to be 09h30 on 19 May 2020.

ORDER

The following order is made:

1.         The appeal against the convictions and sentences is upheld.

2.         The convictions and sentences imposed on 24 March 2006 are set aside.

3.         The Registrar is directed to notify the South African Criminal Record Centre in writing of this order.

JUDGMENT

Steyn J (Moodley and D Pillay JJ concurring):

[1]        The appellant was convicted in the Durban High Court on a count of murder, theft, and robbery with aggravating circumstances, two counts of attempted murder and two counts of unlawful possession of a firearm and ammunition. On 24 March 2006, the appellant was sentenced to a term of life imprisonment on the count of murder. The custodial sentences imposed in respect of the remaining counts were ordered to run concurrently with the sentence of life imprisonment.

[2]        On 20 June 2017, the appellant was granted leave to appeal against his convictions and sentences. The appeal was set down for hearing on 31 July 2019. The appeal was however not heard but adjourned on that date as the record was incomplete.

[3]        When the matter was heard by us, the record remained incomplete. The following needs to be said about the record. There is no mechanical recording available in respect of the evidence that was led during the trial, nor could a judgment on the merits of the case be produced. The only transcribed record is the mechanical recording of the sentencing judgment.

Legal position

[4]        It has been established over the years that the record of the proceedings forms the basis of the hearing by an appeal court when it considers any misdirection on facts[1] and law.

[5]        The Supreme Court of Appeal in S v Chabedi[2] confirmed the importance of a complete record:

‘[5] On appeal, the record of the proceedings in the trial court is of cardinal importance. After all, that record forms the whole basis of the rehearing by the Court of appeal. If the record is inadequate for a proper consideration of the appeal, it will, as a rule, lead to the conviction and sentence being set aside. However, the requirement is that the record must be adequate for proper consideration of the appeal; not that it must be a perfect recordal of everything that was said at the trial. As has been pointed out in previous cases, records of proceedings are often still kept by hand, in which event a verbatim record is impossible. . . .

[6] The question whether defects in a record are so serious that a proper consideration of the appeal is not possible, cannot be answered in the abstract. It depends, inter alia, on the nature of the defects in the particular record and on the nature of the issues to be decided on appeal.’[3]

(My emphasis).

[6]        It is trite that an accused’s right to a fair trial encompasses the right to appeal.[4] A complete record of the trial proceedings is a vital part to an accused’s fair trial right.[5] The reconstructed record before this court contains inter alia the evidence of the two complainants in the attempted murder charges. They identified the appellant as the perpetrator. It is common cause that their identification took place in the early hours of the morning. When the police investigated the scene later on, they found the appellant hiding in a cupboard. When he was arrested he was in possession of a firearm. The appellant raised a defence of an alibi during the trial and it is clear that his alibi is in contrast with the evidence tendered by the State witnesses.

Adequacy of the record

[7]        It is common cause that the reconstructed record is based on the notes of the State advocate who prosecuted this case. Based on the reconstructed record the State argues that the record is sufficiently adequate for purposes of this appeal. The appellant submits that the available record, despite the best efforts of the State advocate to assist with the reconstruction, is an incomplete one since the notes of Mr Walters, the State advocate, could not be verified by the presiding judge or by the appellant’s legal representative.[6]

[8]        Appellant’s counsel, Ms Barnard, referred this court to S v Frazenburg & others[7] at 186d-g:

‘An appeal is not a re-hearing in the full sense of the word but is, to use the language of Innes CJ in Estate Kaluza v Braeuer 1926 AD 243 at 256, “a re-hearing upon special lines” as the Court of appeal lacks the advantage of judging the credibility of witnesses by observing them in the witness-box. Consequently, it would generally be contrary to well-recognised principles for a Court of appeal to express its own view, unaided by the findings of the trial Court, as to the credibility of material witnesses whom it has never seen. . . .’

[9]        The reasons of the presiding judge for convicting the appellant do not form part of the record. As a result, this court is at a disadvantage to evaluate the evidence without the benefit of observing the witnesses. The demeanour of the witnesses, their expressions and the answers given by them whilst being cross-examined, all form part of the criteria that impact on their credibility. Without the reasoning of the trial judge or the observations made by him, the reconstructed record is inadequate.

[10]      The parties are ad idem that the appellant raised a defence of an alibi. The presiding judge’s credibility findings and the reasons for reaching certain conclusions are of the utmost importance in dealing with the findings of the trial court. Evidence of identification for example requires presiding officers to evaluate cautiously the evidence of witnesses. Without the court’s reasons this court cannot evaluate whether the trial court was misdirected on the facts. The inadequacy of the record results in an inability to assess the appeal fairly.[8]  That being the case, the convictions and sentences have to be set aside.

Order

[11]      For these reasons, I propose the following order be made:

1.         The appeal against the convictions and sentences is upheld.

2.         The convictions and sentences imposed on 24 March 2006 are set aside.

3.         The Registrar is directed to notify the South African Criminal Record Centre in writing of this order.

_________________

Steyn J

I agree

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Moodley J

I agree

___________________

D Pillay J

APPEARANCES

Counsel for the appellant              :           Adv L Barnard

Instructed by                                   :           Advocate Chanbers

                                                                    Ground Floor

                                                                     17 Prince Edward Street

                                                                      Pietermaritzburg

                                                                      Email: adv@group6.co.za

Bardnard.dalene@gmail.com.

Counsel for the respondent          :           Adv ASH Walters 

Instructed by                                  :           Offices of the Directorate of Public Prosecutions

                                                                        4^th Floor, 88 Joe Slovo Street

                                                                        Durban

                                                                        Email: ashwalters@npa.gov.za

Date of Hearing                              :           08 May 2020

Date of Judgment                           :           19 May 2020

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