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JUDGMENT

IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE HIGH COURT, CAPE TOWN)

CASE NUMBER: A285/2012 + A96/10

DATE: 24 AUGUST 2012

In the matter between:

RICHARD JOHN SALT .......................................................................Appellant

and

THE STATE .....................................................................................Respondent

JUDGMENT

VAN STADEN. AJ

1. The appellant was charged in the magistrate’s Court Cape Town on six charges of theft. In respect of all the counts it is alleged that on specified dates between 13 October 2006 and 23 October 2006 the accused wrongfully and with the intent to steal took certain goods of the complainant, Ms L Mendel, more particularly, five amounts of cash ranging R650,00 to R3 016,00 and a cash cheque of R4 800,00.

2. The appellant pleaded not guilty and set out the basis of his defence which was to the effect that he had intended to do the work, but personal difficulties prevented him from completing the work. The appellant was convicted as charged on 1 April 2008 and on 23 June 2008 he was sentenced 18 months correctional supervision in terms of Section 276(1)(i) of the Criminal Procedure, Act 51 of 1977. Leave to appeal was granted by the trial court on 9 October 2009.

RECONSTRUCTION OF THE RECORD

3. A portion of the record was lost and attempts were made to reconstruct it. The evidence of the appellant and more particularly his examination-in-chief, which was heard on 11 March 2008, was not transcribed. The record could not be reconstructed as both the representative of the appellant and the public prosecutor were not available to attend the reconstruction meeting and the presiding officer had misplaced her notes and was unable to assist. The situation is exacerbated by the fact that the record is riddled with inscriptions of “indistinct” and “inaudible”. Many answers to relevant questions do not appear in the record.

4. In S v Fredericks¹, this Court stated at 562 b to c as follows:

“Whatever the position may be in other Divisions, the practice in the Cape has been that where it is impossibie to reconstruct a totally lost record and the lost portion contains evidence which is of material importance to the adjudication of an appeal, the appeal ought to succeed and the conviction and sentence set aside. See S v Van Collier 1976 (2) SA 378 (CPD).”

5. In S v Gora², the consequences of a missing record is dealt with. Reference is made to Section 76(3)(a) of the Criminal Procedure Act, providing for the trial court to keep a record of the proceedings. Section 35(3)(o) of the Constitution of the Republic of South Africa, Act 108 of 1996, providing that the right of an accused person to a fair trial includes the right of appeal to a higher court is also quoted. The Court explains that it is impossible to appeal effectively where there is no record and by implication where there is no proper record. The question that should be posed is whether the record of the proceedings is inadequate for a proper consideration of the appeal. The conclusion is that the fair trial- requirement can be met in instances where the parties successfully collaborate towards properly reconstructing a sufficiently accurate record of the proceedings in order to allow the court of appeal to properly adjudicate upon the issues raised on appeal.

6. In the matter of the consideration the attempts to reconstruct the record met with failure. A further relevant consideration is whether there was compliance with the directions contained in S v Zenzile³ Yekiso J specifically ruled that in an instance where the magistrate had been informed by the clerk of the court that a portion of the record could not be found, the court should have directed that the clerk of the court to inform all interested parties, being the accused (or his legal representative) and the prosecutor, of the inadequate record. Thereafter a date for the parties to assemble in an open court in order to jointly undertake the proposed reconstructions of the record, should be arranged.

7. The prosecutor and the representative of the appellant were not available in this instance and although the notes of the magistrate was missing, the appellant should have been allowed the opportunity to appear in open court in the presence of the magistrate in an attempt to reconstruct the record. I therefore conclude that the trial of the appellant cannot be regarded as a fair trial and the appeal should succeed on this ground alone.

THE MERITS OF THE APPEAL

8. In my opinion there are other reasons why the appeal should be upheld. The complainant testified that she acquired the services of the appellant to paint her house and to do some other repair work in respect of the house. The appellant forwarded a quotation of R8 550,00 to the complainant. The quote was received on 11 October 2006 and thereafter on 14 October a deposit of R3 016,00 was paid into the appellant’s fiance’s account. Thereafter the other amounts referred to in the charge sheet were paid to the appellant. The complainant testified that the appellant only did minimal and shoddy work and that he then disappeared with her money. In her evidence the complainant specifically stated that, in her opinion, the appellant never had the intention of doing the job. To justify this conclusion she testified as follows:

“In retrospect, because he always just came, asked - took money and immediately left. It is evident (indistinct) and never brought clothes (indistinct) or anything to work...In retrospect I realised that, that was just a pretence. ”

Having been asked why she described the appellant’s actions as a pretence she replied as follows:

“It fits the whole picture, the whole scenario.

And that was what I subsequently heard about, You know, I went to the police station, they went on a computer and he had a long history (indistinct) ...I mean they confirmed my suspicions

9. The appellant’s version was that he and an assistant had been busy with the preparation work on the premises until 24 October 2006. He explained that it was his intention to purchase the necessary paint after the preparation work had been completed. He explained that he was unable to finish the work because he was in custody and he also had problems with his girlfriend.

10. The appellant was charged of theft and not fraud. I agree with Ms Van der Westhuizen, counsel for the appellant, that the State’s case in essence is that the appellant committed theft by false pretences and that he made a fraudulent misrepresentation by falsely undertaking to render the services in question with the intention of appropriating the money referred to in the charge sheet. In S v Ntlomo⁴, it was held that in such an instance the state should furnish particulars reasonably sufficient to enable the accused to know the precise case against him. If not, the accused would have suffered prejudice in his defence⁵ and is entitled to a discharge.

11. I also agree that the State did not present evidence to the court to prove that the appellant never intended to complete the work.

12. Mr Steven SC, counsel for the State, in my view correctly, described the magistrate’s judgment as being “opaque”. The magistrate for example specifically stated the following in this judgement:

12.1. "Now whether you wanted to do the work or not, I can’t answer that

12.2. “I have to now look at whether the defence story is reasonably possibly true, if I can rely on that version."'

12.3. “..you give money to somebody and say go and bank this money for me. If that person then put it in his pocket, then it’s theft. But initially that person was given the money to possess. A lawful possession. But you - you should have done something about it. You should have done labour and you never complied with it.”

13. Mr Steven fairly concedes that in so-called building contractor- cases, it is difficult to distinguish whether one is dealing with an incompetent contractor who underquotes, or one who from the outset has the intention to disappear with the money without doing any work.

CONCLUSION

15. In all the circumstances the accused should in my opinion, not have been convicted and I would set aside the conviction and sentence.

W H VAN STADEN

Acting Judge of the High Court

I agree. It is so ordered.

P L GOLIATH

Judge of the High Court

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