Cape Town - “Hundreds” of court records are lost or destroyed - and in some cases this may lead to convicted criminals being set free on appeal.
This was the case for Pieter Davids, who was found guilty of murder by the Bredasdorp Regional Court in July 2005 and sentenced to 15 years’ imprisonment.
His conviction and sentence have been set aside by the Western Cape High Court because virtually all of the regional court record - which the high court needs to make a decision on appeal - is missing.
Davids has been set free.
In his judgment, Judge Lee Bozalek said the inability to appeal because of a missing record was a “breach of the constitutional right to a fair trial”.
He also noted a “disturbing” point the State had made, which was that there were “hundreds of similar cases” of lost or destroyed records in the magistrates’ and regional courts in cases that were becoming the subject of appeals in the high court.
Judge Bozalek sent a copy of his judgment to the Department of Justice and Constitutional Development’s regional director.
While court records can be destroyed, this is not meant to happen until after the prisoner’s imposed prison term has expired.
Criminal defence lawyer William Booth agreed that the issue of missing court records was a “serious problem”.
“It happens more often that records are not properly transcribed or go missing,” he told the Cape Times.
The department’s regional head, Hishaam Mohamed, acknowledged that the judgment had been received.
However, he painted a different picture of the situation, saying the Western Cape had the best record-keeping system in the country. He said that missing records had been a “crisis for a long time”.
Two years ago, they’d appointed a five-member task team to tackle the matter.
The team’s March report showed that according to an audit in 2008/09, 423 appeals had not been finalised for a number of reasons, among them that court records were missing, had been misfiled or there had been a lack of communication among those involved in or dealing with the appeal.
Most of these had been at the courts in Cape Town (101 appeals), Somerset West (54 appeals), Malmesbury and Vredenburg (52 appeals each).
Of the 423 appeals, 404 had been resolved.
Mohamed said this was because the record had been discovered after having been misfiled, or the court record had been reconstructed.
The department had launched another initiative about a year ago by appointing a special clerk to deal with appeals in each of the province’s 25 major courts, he said.
In Davids’s case, a search for the record had begun as far back as September 2006.
According to Judge Bozalek’s judgment, the office manager at the Bredasdorp Magistrate’s Court could not explain why the matter had been allowed to “drift for more than five years without any decisive action being taken”.
The case against Davids could be reinstituted as if he hadn’t been charged, tried and convicted. This was because his sentence and conviction had been set aside on the grounds of a technical irregularity, Judge Bozalek said.
Eric Ntabazalila, regional spokesman for the National Prosecuting Authority, confirmed that if an appeal succeeded because the record was incomplete, the State could reinstate prosecution.
Cape Argus