IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)

DATE:	20 MAY 2011

In the matter between:

and

JUDGMENT

This matter is brought on appeal on both the conviction and sentenced imposed The appellant was sentenced on 23 February 2004, which is more than seven years ago. He shortly thereafter applied for leave to appeal which was granted on both the conviction and sentence. He was released on bail and nothing further happened. It was only at a later stage when it was discovered that the appeal was not properly prosecuted in this court, that the appellant was brought back before the trial court, his bail was cancelled and he was committed to prison.

When the record was prepared, it transpired that the recording mechanism in court did not operate properly. There was correspondence between the representatives of the appellant, it being the Legal Aid Board, and the Clerk of the Court in George, as well as the office of the Director of Public Prosecutions with the clerk of the court and the magistrate. The magistrate indicated that it would be easy to reconstruct the record as it was a guilty plea and that the'gaps' in the record had to be filled in. Unfortunately this never happened. So we are sitting with an incomplete record.

In the circumstances, this court must interfere. The conviction and sentence cannot stand.     I, however, believe that the appropriate way to deal with this matter is to set the conviction and sentence aside, order the magistrate to enter a plea of not guilty in terms of section 113 and the proceedings can proceed before another magistrate. I know that in many cases of this nature, the order was merely made to set the conviction and sentence aside. I do not believe it would be just and fair towards the complainants in this matter, if a man that offered a plea of guilty on a rape charge, would just be set free because of officials in justice, and that includes the trial magistrate, did simply not do their job.

FORTUIN, J

ERASMUS, J:   It is so ordered.