The State v Sanelisiwe Moyo

The accused, Sanelisiwe Moyo, was convicted on four counts of theft. According to the state summary, the various sums of money stolen were not recovered. However, when sentencing the accused, the trial magistrate referred to a substantial amount of the stolen money having been recovered and suspended 6 months imprisonment on condition that the accused restitute the complainant to the tune of US$1,469.00. This discrepancy was not reflected in the court record. The matter came before the High Court on automatic review. When the reviewing judge queried this inconsistency, the trial magistrate responded that the complainant had submitted an affidavit after conviction but before sentencing indicating partial reimbursement, but admitted to omitting to attach this affidavit to the record. The trial magistrate's own court notes did not reflect the production of this affidavit in court.

• Whether the trial magistrate properly recorded court proceedings in accordance with section 5(1) of the Magistrates' Court Act
• Whether proceedings can be certified as being in accordance with real and substantial justice when critical evidence is not properly recorded in the court record
• Whether a magistrate can retrospectively add documents to the court record after proceedings have been completed

The reviewing judge (BERE J) withdrew his certificate and declined to certify the proceedings as being in accordance with real and substantial justice.

A Magistrates' Court is a court of record by virtue of section 5(1) of the Magistrates' Court Act [Chapter 7:10], and all court proceedings must be properly and contemporaneously recorded. A trial magistrate cannot make belated references to documents or evidence whose production in court is not supported by the magistrate's own notes in the court record. Attempting to add material to the court record after proceedings have been completed amounts to doctoring the record and constitutes a serious dereliction of duty. The obligation to properly record proceedings is critical to ensure that justice is not only done completely and effectively, but also seen to be done. Where the court record is deficient in this manner, the reviewing court is entitled to withdraw certification and decline to certify the proceedings as being in accordance with real and substantial justice.

The court noted that it has been emphasized "for times without number" that the Magistrates' Court is a court of record as dictated by statute, suggesting ongoing and persistent problems with proper record-keeping in the Magistrates' Courts. The court's reference to the trial magistrate's approach as "casual" and a "desperate attempt to doctor the record" reflects judicial concern about the seriousness with which some magistrates approach their record-keeping obligations.

This case reinforces the fundamental principle that Magistrates' Courts are courts of record and have a statutory obligation under section 5(1) of the Magistrates' Court Act [Chapter 7:10] to properly record all court proceedings. The judgment emphasizes that magistrates cannot retrospectively add documents or information to the court record after proceedings have been completed, as this amounts to doctoring the record. The case serves as an important reminder to judicial officers of the critical importance of accurate and complete record-keeping to ensure that justice is not only done but seen to be done. It demonstrates that even where an accused has been convicted, failure to properly maintain the court record can result in the reviewing court declining to certify the proceedings, potentially leading to a retrial or other remedial action.