Mthimkhulu v The State

The appellant and two co-accused were convicted and sentenced to 15 years' imprisonment by the regional court, Pietermaritzburg on a charge of robbery with aggravating circumstances read with s 51 of the Criminal Law Amendment Act 105 of 1997. The regional magistrate refused leave to appeal against conviction and sentence. On petition to the KwaZulu-Natal Division of the High Court, the court granted leave to appeal against sentence only, refusing leave to appeal on conviction. When the petition was heard, the record was incomplete: parts of the appellant's evidence including the second part of his cross-examination and the whole of his re-examination were missing. Attempts at reconstruction failed as the magistrate lost his notes, the prosecutor's notes could not be located in the docket, and the attorney could not be located. Despite the incomplete record, the high court dealt with the petition and refused leave to appeal against conviction. The appellant sought special leave from the Supreme Court of Appeal in terms of s 16(1)(b) of the Superior Courts Act 10 of 2013.

• Whether the high court erred in refusing leave to appeal against conviction given the incomplete record of proceedings
• Whether there were reasonable prospects of success in an appeal against the conviction under s 309C of the Criminal Procedure Act
• Whether the regional magistrate properly evaluated the evidence and applied the correct onus of proof
• Whether the Supreme Court of Appeal has jurisdiction to entertain the appeal on the merits in such circumstances

1. The appeal was upheld. 2. 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 to the KwaZulu-Natal Division against his conviction of robbery with aggravating circumstances. 3. The registrar was directed to forward a copy of the judgment to the Legal Aid Board with a request to take steps to bring before the KwaZulu-Natal Division appeals by the two co-accused (Gxekathini Bernard Ngubane and Sibusiso Ngqulunga) against their convictions and sentences.

Where the record of trial proceedings is incomplete due to missing portions of crucial evidence (including the accused's testimony), and there are discrepancies and mutually contradictory evidence from various witnesses, a high court dealing with a petition under s 309C of the Criminal Procedure Act should not refuse leave to appeal against conviction. The test is whether there are reasonable prospects of success in the envisaged appeal. An accused should be granted the opportunity to have a court properly assess and analyze all the evidence, including weighing the strength and weakness of the State's case vis-à-vis the defence case, and considering probabilities and improbabilities of both versions. The onus in a criminal case remains with the State throughout and does not shift to the accused to rebut a prima facie case.

The court made non-binding observations about the proper approach to appeals in cases involving incomplete records and co-accused who did not appeal. The court noted that it is not desirable to traverse the merits in detail when determining whether there are reasonable prospects of success, and that what is to be adjudicated is whether the high court's decision in refusing the petition was correct in terms of s 309C of the CPA. The court also observed that it would be proper for co-accused who did not appeal to be assisted to commence their appeal processes where the court finds reasonable prospects of success exist, directing involvement of the Legal Aid Board to ensure fairness. The court cautioned against placing an onus on the accused to disprove guilt, a practice against which the courts have repeatedly warned.

This case is significant in South African criminal procedure law for reinforcing important principles regarding: (1) the treatment of incomplete trial records when considering petitions for leave to appeal; (2) the proper application of the test for granting leave to appeal under s 309C of the Criminal Procedure Act - whether there are reasonable prospects of success; (3) the fundamental principle that the onus of proof in criminal cases remains with the State and does not shift to the accused; (4) the obligation on courts to properly assess and analyze all evidence, weighing strengths and weaknesses of both the State's and defence's cases; and (5) considerations of fairness where co-accused who did not appeal may be prejudiced by findings that suggest reasonable prospects of success existed. The case demonstrates the appellate court's willingness to intervene where a petition court refuses leave to appeal despite significant deficiencies in the record and questionable evaluation of evidence.