S v Molaudzi

The applicant was convicted by the North West High Court, Mahikeng, together with co-accused, of murder and robbery of an off-duty policeman and possession of a firearm and ammunition without a licence. He was sentenced to life imprisonment for murder and an additional 21 years for the remaining crimes. The applicant was granted leave to appeal to the Full Court, but the appeal was dismissed. The Supreme Court of Appeal refused further leave to appeal. The applicant was sentenced on 22 July 2004. After conviction, he applied for leave to appeal but was told he needed the trial record. The trial judge only signed a copy of the record in October 2008, which was incomplete. The full trial record was only received in 2012, some eight years after conviction and sentence, following intervention by the Mahikeng Justice Centre and Lawyers for Human Rights. The appeal was only heard by the Full Court on 7 December 2012.

• Whether the factual findings made by the trial court warranted a finding of guilt
• Whether an attack on factual findings raises a constitutional issue justifying leave to appeal to the Constitutional Court
• Whether the delay in obtaining the trial record and hearing the appeal violated fair trial rights

Leave to appeal was dismissed. The Registrar was requested to forward a copy of the judgment to the office of the National Director of Public Prosecutions, the Minister of Justice and Constitutional Development, the Mahikeng Justice Centre, Lawyers for Human Rights and the Judge President of the Mahikeng High Court.

An attack on factual findings made by a trial court does not raise a proper constitutional issue for the Constitutional Court to entertain and will not form the basis for granting leave to appeal to the Constitutional Court. Judicial officers have a duty to ensure that egregious delays in the compilation and provision of trial records do not occur.

The Court observed that while delay in trial proceedings may render a trial unfair under section 35(3)(d) of the Constitution, it was not necessary to decide whether delay in appeal proceedings might also be considered a breach of fair trial rights. The Court noted that in this case the record was eventually properly completed and available for fair assessment on appeal, but emphasized that it could easily have been otherwise if compilation of a proper record became impossible due to lapse of time. The Court also noted that the delay had been reported to and investigated by the Judicial Services Commission, making further comment unnecessary.

This case is significant for reaffirming that the Constitutional Court will not entertain appeals based solely on factual findings made by trial courts, as such matters do not raise constitutional issues. The case is also important for highlighting the unacceptable nature of delays in criminal appeal proceedings, particularly delays in obtaining trial records. The Court's stern censure of the eight-year delay in obtaining the trial record emphasizes judicial officers' duties to ensure timely completion of records and progression of appeals. The judgment reinforces fair trial rights under section 35(3)(d) of the Constitution, which includes the right to have trials begin and conclude without unreasonable delay, and suggests this principle may extend to appeal proceedings.