Phenyo Sethosa v The State

The appellant, Mr Phenyo Sethosa, was convicted of rape by the Regional Court, Johannesburg, in contravention of section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. He was sentenced to 10 years' imprisonment as the regional court found no substantial and compelling circumstances existed to deviate from the minimum sentence prescribed in section 51(2)(b)(i) and Schedule 2 of the Criminal Law Amendment Act 105 of 1997. The regional court refused leave to appeal against conviction and sentence. The appellant petitioned the Gauteng Division of the High Court, Johannesburg, which dismissed the petition. He subsequently obtained special leave from the Supreme Court of Appeal to appeal against the refusal of the petition. When preparing for the appeal, it became apparent that the appeal record was incomplete. Missing from the record were transcriptions of proceedings on: 15 January 2021 (medical evidence and formal admissions), 16 February 2021 (section 174 discharge application), 19 July 2021 (reasons for change of legal representative), and 5 November 2021 (application to recall the complainant). The same incomplete record had been placed before the high court when it considered the petition.

• Whether an appeal can be properly determined in the absence of a complete record of proceedings from the trial court
• Whether the High Court was entitled to consider and dismiss a petition based on an incomplete record of proceedings
• What is the responsibility of the appellant and his legal representative to ensure a complete record of appeal
• What is the appropriate remedy where an incomplete record renders it impossible for an appellate court to make an informed decision
• Whether the right to a fair trial encompasses the right to have a complete record for purposes of appeal

The appeal against the dismissal of the petition by the high court succeeded to the extent that the high court's order was set aside. The matter was remitted to the Regional Court, Johannesburg, for reconstruction of the missing portions of the record according to specified guidelines. The appellant's legal representative was directed to take immediate steps to reconstruct the missing proceedings that took place on 16 February 2021, 19 July 2021, and 5 November 2021. The clerk of the Regional Court, the appellant, and the State were directed to arrange a sitting to reconstruct the missing parts and furnish affidavits explaining the steps taken. The reconstructed record was to be finalized by 28 February 2025 and thereafter placed before two judges of the Gauteng Division of the High Court, Johannesburg (differently constituted), for reconsideration of the petition by 31 March 2025. The appeal would lapse upon expiration of these timeframes unless extended by the High Court. In the event any portion could not be reconstructed, affidavits explaining why were to be furnished.

An adequate and complete record of trial court proceedings is a key component of an accused's constitutional right to a fair trial, which encompasses the right to appeal. While the trial court is required to furnish a copy of the record, the appellant or his legal representative carries the final responsibility to ensure that the appeal record is in order and complete. An appellate court cannot properly make an informed decision as to whether proceedings were in accordance with justice without a complete record or, in its absence, a proper reconstruction of missing parts. Where a petition or appeal is considered by a court on an incomplete record, and the missing portions are material to the determination of the issues, the proper remedy is to set aside the decision and remit the matter for reconsideration once the record has been properly reconstructed in accordance with established guidelines. It is improper and not in the interest of justice for an appellate court to consider evidence that was not before the lower court when it made its decision.

The Court noted that the high court had "merely disregarded the missing parts of the transcribed record when coming to its decision," which was an implicit criticism of the high court's approach. The Court observed that the appellant's counsel could not satisfactorily answer crucial questions about the incomplete record during the hearing, suggesting a failure to properly prepare the appeal. The Court also noted that there had been "no attempts to reconstruct the missing parts" prior to the matter coming before the Supreme Court of Appeal, indicating a systemic failure by all parties to ensure procedural regularity. The judgment implicitly suggests that legal representatives should be more diligent in ensuring records are complete before approaching appellate courts, as such failures waste judicial resources and delay the administration of justice.

This case reaffirms the fundamental importance of a complete and accurate record of proceedings in ensuring the constitutional right to a fair trial, which encompasses the right to appeal. It clarifies that an appellate court cannot properly exercise its function without access to the full record of what transpired in the trial court. The judgment emphasizes the responsibility of the appellant's legal representative to ensure the record is complete before approaching an appellate court. It also establishes that where a petition is considered on an incomplete record, the proper remedy is to set aside the decision and remit the matter for reconsideration once the record is properly reconstructed. The case provides practical guidance on the procedure to be followed when reconstruction of missing portions of the record is required, setting out detailed timelines and responsibilities of all role players. It underscores that courts will not overlook procedural deficiencies that undermine the integrity of the appellate process, even where such deficiencies may result in delay.