The applicant, Klaas Lesetja Phakane, was convicted of murder in the Circuit Local Division of the High Court after the decomposed body of his girlfriend, Ms Matilda Chuene Boshomane, was found in a veld in August 2006. No direct evidence established the cause of death. The conviction rested primarily on circumstantial evidence and, crucially, the testimony of Ms Martha Manamela, another girlfriend of the applicant, who alleged that the applicant confessed to killing the deceased and disposing of her body. On appeal to the Full Court, the State furnished an incomplete trial record: the transcript of Ms Manamela’s evidence and other material documents were missing and could not be reconstructed. Despite this, the Full Court dismissed the appeal against conviction (but reduced sentence). The applicant approached the Constitutional Court, alleging that the incomplete record infringed his constitutional right to a fair appeal under section 35(3) of the Constitution.
Leave to appeal was granted. The appeal was upheld. The order of the Full Court was set aside. The applicant’s trial proceedings, conviction, and sentence were set aside in their entirety, and the applicant was ordered to be released from prison immediately.
This case is a leading authority on the constitutional right to a fair appeal in South African criminal procedure. It confirms that the State bears responsibility for providing a complete trial record and that where missing evidence is material and cannot be reconstructed, a conviction cannot stand. The judgment underscores the centrality of appeal rights as part of the broader right to a fair trial under section 35(3) of the Constitution.