Sethosa v The State

The appellant, Phenyo Sethosa, was convicted of rape in the Regional Court, Johannesburg, in contravention of s 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 and sentenced to 10 years’ imprisonment under the minimum sentencing regime in the Criminal Law Amendment Act 105 of 1997. His application for leave to appeal against conviction and sentence was refused by the regional court. He petitioned the Gauteng Division of the High Court for leave to appeal in terms of s 309C of the Criminal Procedure Act 51 of 1977, but the petition was dismissed. On special leave granted by the Supreme Court of Appeal, it emerged that substantial portions of the trial record were missing and had never been transcribed or reconstructed. The incomplete record had also been placed before the High Court when it considered and dismissed the petition.

The appeal succeeded in part. The order of the Gauteng Division of the High Court dismissing the petition was set aside. The matter was remitted with directions that the missing portions of the regional court record be properly reconstructed in accordance with established guidelines, affidavits be filed explaining the reconstruction process, and that the petition for leave to appeal be reconsidered afresh by a differently constituted High Court once a complete record is available.

The case underscores the constitutional importance of a complete and adequate trial record in criminal appeals and petitions for leave to appeal. It reaffirms the appellant’s ultimate responsibility to ensure a proper record and clarifies that appellate courts may not ignore material gaps in the record. The judgment consolidates existing jurisprudence on reconstruction of records and provides practical guidance on the procedural steps required when records are missing.