The Free State High Court has set free a man serving a life sentence for raping a three-year-old girl after a record of his trial proceedings could not be found.
Neo Dennis Mofokeng was jailed on 12 June 2012 after the Frankfort Regional Court found him guilty of molesting the toddler.
However, he lodged an appeal against both his conviction and sentence contending that the state had failed to prove its case beyond a reasonable doubt.
The appeal was set down for hearing on 14 November this year.
However, the High Court found itself in a predicament where it could not consider the appeal because the record of proceedings in the trial court was not available.
The only documents that were presented before the Bloemfontein-based court included a copy of the charge sheet and a copy of the medical report relating to the child complainant.
Documents concerning the collection of forensic evidence for DNA purposes and a victim impact report by a probation officer were also availed.
But the record of the proceedings itself, particularly of the evidence presented before conviction, was absent.
In an affidavit presented to the High Court, Petunia Esterhuizen, an administrative officer responsible for ensuring that transcripts and records are prepared and completed before an appeal is enrolled, stated that, in this case, the full transcripts could not be prepared because the recordings could not be traced.
She said they were probably destroyed in a fire at the Heilbron Magistrates Court on 16 February 2015.
The magistrate who presided over Mofokeng’s case has since retired and does not have his trial notes anymore.
The appellant’s legal representative at the trial and the prosecution were also unable to assist with any trial notes.
Unable to proceed with the appeal hearing due to the unavailability of the trial record, Judge Phillip Loubser was left with no choice but to uphold the appeal, thereby setting aside Mofokeng’s conviction and sentence.
“It appears from the authorities that in similar circumstances, where the records of proceedings were not available and could not be reconstructed, the appeals by those affected were upheld and the convictions and sentences set aside,” the judge said in his ruling handed down on 17 November.
“The position is therefore that the same route has to be followed in the instant appeal.”
The state agreed this was the only available option in the circumstances.
“However, it does not mean that the appellant will simply be entitled to an acquittal,” Judge Loubser said.
“Section 324 (c) of the Criminal Procedure Act provides that whenever a conviction and sentence are set aside by the court of appeal on the ground that there has been any technical irregularity or defect in the procedure, proceedings in respect of the same offence to which the conviction and sentence referred, may again be instituted on the original charge, suitably amended where necessary, or upon any other charge as if the accused had not previously been arraigned, tried and convicted, provided that no judge or assessor before whom the original trial took place, shall take part in such proceedings.
“The absence of any record of proceedings qualifies as a technical irregularity or defect in the procedure. The provisions of Section 324 (c) are therefore applicable.”
The matter has therefore been referred to the Director of Public Prosecutions, Free State, for consideration in terms of Section 324(c) of the Criminal Procedure Act.
Judge Joseph Mhlambi concurred with the orders. – Staff Reporter