27/02/2022
We have seen cases where prisoners get released 10, sometimes 15 years later since the trial record was missing and could not be reconstructed. The part that is getting to me is when the State in many cases argues that the accused does not need the trial record and that the judgment is more than enough for the SCA to hear a case. I openly oppose that argument, and I am of the view that all accused persons have the right to a fair trial and should get access to the full trial record. The question or argument here is what happens if the court can not produce the full record, and it is not available on reconstruction?
AD THE LAW ON A TRIAL RECORD AT AN APPEAL - As to when it can be said that an incomplete record will result in the infringement of an accusedβs right to a fair appeal, in 'S v Chabedi' the
Supreme Court of Appeal said:
β[T]he requirement is that the record must be adequate for proper consideration of the appeal; not that it must be a perfect record of
everything that was said at the trial.
The question of 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.β
This passage was quoted with approval by the Constitutional Court in Schoombee case and Phakane case.
I can quote more case law, reference to news articles to further make this argument. I now am turning to you and asking you what is your opinion about this, and also, what are the steps going forward if the courts keep on dismissing accused person(s) constitutional rights?