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Court records missing so man convicted of robbery, sentenced to 8 years walks free

Pretoria – A convicted robber will be home for Christmas after his conviction and eight-year jail sentence was overturned – all because the criminal justice system did not have its house in order.

A judge of the high court in Bloemfontein expressed his concern about the fact that court records often go missing.

This means that if a matter goes on appeal, it is often impossible for the appeal court to re-assess the existing evidence. This in turn means that the convicted person often enjoys the advantage of being freed.

The judge commented that it would be a travesty of justice if more and more convicted criminals were allowed to walk free because of incomplete or lost records relating to the earlier court proceedings.

In this case, which pertained to missing court records in the Free State, the judge said this was clearly a problem in courts across the country.

Evans Phelembe, who already has a criminal record for housebreaking, turned to the high court to appeal his latest conviction on two charges of robbery and his subsequent sentence.

Judge Johannes Daffue, at the start of his judgment, commented that this court was yet again confronted with an appeal that could not be adjudicated due to an incomplete record.

Phelembe was convicted in the lower court of robbery.

Apart from a few notes by the magistrate who initially sentenced him, a picture taken when a witness pointed him out as the culprit during an identification parade and a notice regarding his previous conviction, no other documents relating to his case could be found anywhere.

When asked for his notes, the magistrate said he was retired and no longer had his notes; the legal representative who appeared for the appellant on behalf of Legal Aid SA did not work for Legal Aid SA any more; and no trial notes or file could be found.

The prosecutor did not have any trial notes and was not able to assist with the reconstruction of the record.

And the court staff could not find a trace of the case file anywhere.

“It becomes more and more prevalent, from my own experience dealing with reviews and appeals in this division, but also reading judgments from other divisions, that courts of appeal are confronted with missing and/or incomplete records. Something needs to be done urgently,” Judge Daffue said.

He added that he was not the only judge in the country to experience these kind of problems. The Constitutional Court, in a 2016 judgment, commented that ”the loss of trial court records is a widespread problem”.

“Something has to be done sooner than later … It is time that everyone concerned in the judicial system should take cognisance of this serious problem,”Judge Daffue said.

In this case, even the State conceded that the appellant’s appeal against his convictions and sentences should succeed in the circumstances.

“This court has no other option than to issue such an order. The record is not only inadequate for a proper consideration of the appeal, but there is no record at all.”

The judge commented that the Supreme Court of Appeal in an unrelated judgment confirmed the well-known principle that the record of proceedings in the trial court is of cardinal importance insofar as it forms the whole basis of the rehearing by the court of appeal.

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