The appellant and two co-accused were charged in the regional court, Pietermaritzburg, with robbery with aggravating circumstances under s 51 of the Criminal Law Amendment Act 105 of 1997. They were convicted and sentenced to 15 years’ imprisonment. The regional magistrate refused leave to appeal against conviction and sentence. On petition to the KwaZulu-Natal Division of the High Court in terms of s 309C of the Criminal Procedure Act 51 of 1977, leave to appeal was granted in respect of sentence only, and refused in respect of conviction. At the time of the petition, the trial record was materially incomplete: parts of the appellant’s evidence were missing, the magistrate’s notes were lost, the prosecutor’s notes could not be found, and the defence attorney was unavailable, making reconstruction impossible. The appellant then sought special leave to appeal to the Supreme Court of Appeal against the refusal of leave to appeal his conviction.
The appeal was upheld. The order of the KwaZulu-Natal Division of the High Court, Pietermaritzburg was set aside and replaced with an order granting the appellant leave to appeal against his conviction of robbery with aggravating circumstances. The registrar was directed to forward the judgment to the Legal Aid Board to facilitate possible appeals by the appellant’s co-accused.
The case reaffirms the approach to be taken by appellate courts when considering refusals of leave to appeal under s 309C of the Criminal Procedure Act, particularly where the trial record is incomplete. It underscores that an incomplete and irreconstructable record may itself give rise to reasonable prospects of success, and that courts must guard against endorsing convictions where the evaluation of evidence and the allocation of the onus of proof are questionable.