Phakane v The State

Klaas Lesetja Phakane was convicted by Seriti J of murdering his girlfriend, Ms Matilda Chuene Boshomane, sometime in August 2006, and sentenced to 20 years' imprisonment. The conviction was based largely on circumstantial evidence, particularly the testimony of Ms Martha Manamela, another girlfriend of the applicant. Ms Manamela testified that the applicant told her he had killed Ms Boshomane, wanted to throw the corpse in a pit toilet, and that she advised him to leave the body where it could be found. The deceased's decomposed body was found in a veld. The cause of death could not be established. When the applicant appealed to the Full Court of the Gauteng Division, the State delivered an incomplete record—the transcript of Ms Manamela's evidence was missing, as were the tapes containing her testimony. The missing evidence could not be reconstructed. There were also significant discrepancies between Ms Manamela's statement to police on 2 September 2006 and her evidence in court, which the trial court did not address. The Full Court held that despite the incomplete record, it could fairly determine the appeal, dismissed the appeal against conviction, but reduced the sentence to 15 years. The applicant then sought leave to appeal to the Constitutional Court.

• Whether the absence of a complete trial record, specifically the transcript of the key witness's evidence, infringed the applicant's constitutional right to a fair appeal under section 35(3) of the Constitution
• Whether an appeal can be fairly determined when material evidence is missing from the record and cannot be reconstructed
• Whether the trial proceedings, conviction, and sentence should be set aside when the right to a fair appeal has been violated
• Whether a competent verdict of assault could be entered on the murder charge despite the incomplete record

Leave to appeal granted. Appeal against the Full Court decision upheld. The Full Court order set aside and replaced with an order setting aside the trial proceedings, conviction, and sentence in their entirety. The applicant ordered to be released from prison immediately. The Registrar directed to ensure the judgment is delivered to the Head of Kgosi Mampuru II Central Correctional Centre, Pretoria.

Where the State fails to furnish a complete and adequate record of trial proceedings for an appeal, and material evidence (particularly decisive evidence of a key witness) is missing and cannot be reconstructed, the accused's constitutional right to a fair appeal under section 35(3) is violated. An appeal court cannot fairly determine an appeal when it lacks the means to evaluate whether key witness testimony should have been believed, particularly where there are material discrepancies between the witness's statement and court testimony that the trial court failed to address. The adequacy of a trial record depends on whether it allows proper consideration of the appeal, considering the nature of the defects and the issues to be decided. When the right to a fair appeal has been so compromised that the appeal cannot be fairly determined through no fault of the appellant, the proper remedy is to set aside the trial proceedings, conviction, and sentence in their entirety.

Zondo J noted that the trial court's judgment revealed deficiencies in the police investigation and the trial court's failure to address obvious conflicts in evidence. He observed that the trial court made no reference to any warning statement or confession despite the Full Court's suggestion that one existed. He also noted that in one instance the trial court preferred the witness's statement version and in another her court testimony version, without explaining the preference. Zondo J observed that if Ms Manamela was dishonest when making her statement, she may have been protecting her boyfriend; if dishonest in court, she may have been vindictive after their breakup. Regarding competent verdicts, Zondo J explained that assault is only a competent verdict for murder when there is a link between the assault and the murder charge—the assault must be part of the actus reus of the murder. He noted that setting aside the trial proceedings would allow the State to recharge the applicant with murder, whereas convicting him of assault as a competent verdict would preclude this. Cameron J observed that even if a conviction of assault were entered, any sentence would be less than already served, and the only practical difference would be that it would appear on the applicant's criminal record. Froneman J suggested that the matter should be remitted to the High Court to investigate whether a retrial should proceed, rather than assuming that changed circumstances make further prosecution unrealistic.

This case establishes important principles regarding the constitutional right to a fair appeal under section 35(3) of the Constitution. It confirms that where the State fails to provide a complete trial record for appeal purposes, and the missing evidence is material and cannot be reconstructed, the right to a fair appeal is violated. The case emphasizes that the adequacy of a trial record depends on the nature of the defects and the issues on appeal. Where key witness evidence that was decisive to conviction is missing, an appeal court cannot properly evaluate the trial court's findings or determine the appeal fairly. The remedy for violation of the right to a fair appeal is to set aside the trial proceedings, conviction, and sentence entirely. The case also illustrates tensions between finality in criminal proceedings, the State's obligations in criminal appeals, and the rights of accused persons. The concurring judgments raise issues about competent verdicts and whether retrials should be ordered in such circumstances.