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Properly recorded court proceedings are essential in ensuring that litigants do not suffer miscarriage of justice

State v Benjamin Woelf & Another 43/2021

High Court of South Africa (Western Cape Division, Cape Town

Slingers, J and Nziweni, AJ

May 7, 2021

Reported by Faith Wanjiku  

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Courts -organization and administration – court records – court proceedings – form and style of court proceedings – where court records indicated court proceedings were mechanically recorded but contained a handwritten record – where the DCRS failed to electronically record the court proceedings, whilst it was thought to be doing so – where the magistrate was also making a hand written record – whether the hand written notes of the magistrate were a record or her notes – whether a court could keep two separate forms of recordings of the same proceedings despite indicating one of the recordings as the official court record -Magistrates’ Court Act 32 of 1944, section 1

Courts -organization and administration – court records – court proceedings – form and style of court proceedings – where court records indicated court proceedings were mechanically recorded but contained a handwritten record – where the DCRS failed to electronically record the court proceedings, whilst it was thought to be doing so – where the magistrate was also making a hand written record –where a higher court needed the lower court’s court proceedings for review of a case – whether the mechanically recorded proceedings that were incomplete and contained a complete hand-written record were adequate for purposes of a review.

Brief facts:

The two accused tendered guilty pleas, in the Magistrate’s Court, Somerset West on a charge of housebreaking with intent to steal and theft. Both were convicted on the strength of their pleas and sentenced to 12 months’ imprisonment. The sentences imposed on both accused rendered the case subject to automatic review. Having been presented with the record of the proceedings for review purposes, the High Court noted that part of the mechanically recorded record was missing and that there was also a hand written record.

The court then raised a query to the presiding magistrate, in that the record was quite confusing as it indicated that the proceedings were mechanically recorded, yet it contained a hand-written record. The furnished mechanically recorded one also only ended with the state putting the charges to the accused with the rest of the mechanically recording missing. The hand written proceedings were also not typed and the presiding magistrate was asked to kindly rectify the situation on an urgent basis.

In her response, the presiding magistrate and the Digital Court Recording System (DCRS) clerk deposed to affidavits wherein they tendered an explanation that they discovered after the fact that the DRCS did not record the proceedings as they expected. The High Court also noted that on record there was no explanation of the basis for the keeping of the hand written record and requested the magistrate to explain how the hand written record came into being and if they were a re-construction, the magistrate should explain how she undertook the re-construction by March 22, 2021. The magistrate failed to comply within specified time frame and in her response dated April 13,2021, there was surprisingly no reason or explanation furnished for the delayed response, the magistrate simply remarked that Annexure ‘A’ of the record was her handwritten recording of the proceedings whilst the plea was also being recorded by the machine and was not a reconstruction. On a reading of the responses by the magistrate and the DCRS clerk, it became apparent that the magistrate intended to proceed with the proceedings being mechanically recorded.

Issues:

  1. Whether a court could keep two separate forms of recordings of the same proceedings despite indicating one of the recordings as the official court record.
  2. Whether the mechanically recorded proceedings that were incomplete and contained a complete hand-written record were adequate for purposes of a review.

Relevant provisions of the law

Magistrates’ Court Act 32 of 1944

Section 1 -to record

To take down in writing or in shorthand or to record by mechanical means, and ‘recorded’ has a corresponding meaning.

Held

  1. When regard was had to the contents of the charge sheet, relating to the day of the proceedings, on February 5, 2021, the word mechanically recorded appeared in bold letters, before the commencement of the proceedings. The response of the magistrate and the DCRS clerk to the court’s query evinced that, on the day in question the magistrate was oblivious to the problem with the DCRS until the record had to be prepared for review purposes. Even though the magistrate intended to have the proceedings mechanically recorded, seemingly she also simultaneously kept a handwritten recording of the proceedings.
  2. It was necessary to emphasise the importance of a complete record in any type of proceedings. The record of the proceedings in court was of cardinal importance. As such, the credibility of the record was very important, because it was one of the guarantees to a fair hearing on review and appeal. It was so that although most courts had machines to record proceedings, it was still a notorious fact that some presiding officers personally preferred to record proceedings long hand, particularly guilty pleas.
  3. In order to preserve the credibility of proceedings and to protect the accused’s rights to a fair trial, it could never be stressed enough that, it was highly desirable that courts should make use of DCRS wherever possible. Even though the court was well alive to the fact that there was absolutely nothing wrong with a handwritten record, as the record could be kept as handwritten or an electronic recording. Nevertheless, it could not really be fathomed why in the day and age, certain presiding officers still preferred to keep hand written records.
  4. Gleaning from the furnished record, it became evident that the mechanical recorded record was incomplete, and conversely, the hand written notes were complete. In light of the fact that the DCRS failed to electronically record the court proceedings, whilst everyone was labouring under the impression that it was recording; in hindsight it was actually a good thing that the magistrate was also making a hand written record. However, the question which aptly arose was whether the hand written notes of the magistrate were a record or her notes.
  5. In the instant case, a mechanical record was made though incomplete. Insofar as the magistrate responses were concerned it was not clear as to why she chose to keep two separate recordings of the proceedings. The magistrate in her response to the query by the court identified that the handwritten proceedings, (Annexure “A”) was her handwritten recording of the proceedings whilst the plea was also being recorded by the machine.
  6. It was very interesting that the magistrate did not label the handwritten proceedings as her notes. In any event, under the circumstances of the matter, the notes which the magistrate had kept during the course of the proceedings could not constitute a record of the proceedings. That was because, by the virtue of the magistrate labouring under the impression that the DCRS was recording and her being entirely unaware and oblivious to the fault with it; she had clearly chosen to record the proceedings mechanically.
  7. The situation would have been different had the magistrate chosen to only keep a handwritten record and not to also simultaneously mechanically record. The fact that the DCRS did not completely record the proceedings did not necessarily mean that the handwritten record should then automatically, be regarded as the official record.
  8. Without a re-construction taking place, with both the accused, the handwritten notes could not constitute a transcript of the plea proceedings. The record was not a complete record of the plea proceedings. Consequently, the court was not in a position to determine the review of the plea proceedings.
  9. The record was thus remitted to the magistrate to begin with the procedures of re-construction of the record. On urgent basis the magistrate should ensure the following took place:

(a)The accused should be immediately requisitioned from prison, for their attendance at court. The accused had to be brought before the court within five (5) days of receipt of the judgment. On their appearance in court, they should be informed of the incomplete record and the existence of the magistrate’s written notes.

(b)The need to reconstruct the record and of their right to participate in the process, should also be explained.

(c)Their rights to legal representation during the reconstruction process should be explained.

(d)As soon as the record had been reconstructed and the parties agreed on its correctness, then the re-constructed record had to be submitted for review.

The Registrar was directed to forward a copy of the judgment to the Legal Aid Board (Stellenbosch), with the request that the Legal Aid Board take steps as might be necessary to ensure that if the accused sought free legal assistance, the matter was to be prioritized.

Relevance to Kenya’s legal system

Section 20 of the Magistrates’ Courts Act, No. 26 of 2015 provides that the Chief Justice may make Rules generally for the effective organization and administration of the Magistrates’ Court and that such Rules may provide for among others the automation of Court records, case management, protection and sharing of Court information and the use of information communication technology and form, style, storage, maintenance and retrieval of Court records.

Section 28 of the High Court (Organization and Administration) Act, No. 27 of 2015 provides that the Registrar shall maintain a uniform record keeping system in the Court specifying the form, style, storage, maintenance and retrieval of records.

Rule 36 (1) of theHigh Court (Organisation and Administration) (General) Rules, 2016 provides that the Registrar shall establish and maintain a uniform court record management system to be administered in accordance with the stipulated guidelines and other directions issued by the Chief Justice.

Sub-rule (2) goes on to provide that the records management system shall, for purposes of ensuring integrity among others ensure efficient filing, storage, maintenance and retrieval system; ensure traceable file movement and bring-up diary system; ensure safe custody, regular file audit, tracing and reconstruction of missing files.

Sub-rule (3)  states that where a file of the Court is reported missing, the Court may, after notifying the parties and allowing a period of fourteen days for its tracing, order for the reconstruction of the file within fourteen days. Sub-rule (4) then states that a  decision of the Court to reconstruct a lost file shall be communicated to all the parties in a matter. Sub-rule (5) states that where a lost file is traced after a new one is reconstructed, the two files shall be consolidated into one.

Rule 37 states that the Principal Judge may from time to time, in consultation with the Chief Justice and the Chief Registrar, publish general guidelines for the automation of court records. The guidelines shall provide for the use of information and communications technology to record, retain, manage, retrieve and share court records; and the other forms in which court records in electronic form shall be recorded, retained, managed, retrieved and shared including in video, audio, audio-visual and Braille forms. Sub-rule (3) states that where the proceedings of the Court are recorded other than by hand, such records may be kept in any secure form including video, audio, audio-visual, Braille and computer-based systems.

In Abdul Karim Omar v Stephen Ngumbau Kithuka [2017] eKLR, the court drew its attention tothepractice applicable to the reconstruction of lost files and the opening of skeleton files by citing the 2nd Edition of the High Court of Kenya Registry Operation Manual at pages 33-34, paragraph 4.6 which provided for guidelines on tracing and reconstruction of missing files as follows: If a file is missing, the Registry will take the following steps:

a) The Registry Supervisor checks the file movement register to identify the person in whose possession the file was last recorded. The Supervisor instructs him/her to trace the file.

b) If the file is not traced, the Registry Supervisor circulates a memo to all staff in the Station/Registry asking them to check whether the file is in their possession. If the file is not found within 24 hours, the Supervisor will notify the Deputy Registrar.

c) The Deputy Registrar then initiates a special search.

d) If the file is not traced after this first search, the Registry Supervisor writes the words ‘original file missing’, in pencil, on the relevant case register.

e) The Registry Supervisor then enters the details of the missing file in the register of missing files which is maintained by the Registry Supervisor.

f) After a fruitless search of 14 days, the Deputy Registrar issues a certificate to confirm the loss and recommends the reconstruction of the file.

g) Parties are informed of the non-availability of the file in writing by the Deputy Registrar with a recommendation for reconstruction.

h) In the event that a missing file is traced, the date of recovery is recorded in the case register and its availability is communicated to the parties concerned by the Deputy Registrar within 24 hours of its tracing. A certificate confirming the recovery is issued.

i) The file once traced is merged with any skeleton file that may have been opened.

In John Karanja Wainaina V Republic, Criminal Appeal No. 61 of 1993 (unreported), the court held that “in such a situation as this, the court must try to hold the scales of justice and in doing so must consider all the circumstances under which the loss has occurred. Who occasioned the loss of all the files” Is the appellant responsible” Should he benefit from his own mischief and illegality if he is” In the final analysis, the paramount consideration must be whether the order proposed to be made in the one which serves the best interest of justice. An acquittal should not follow as a matter of course where a file has disappeared. After all a person, like the appellant has lost the benefit of the presumption of innocence given to him by section 72 (2) (a) of the Constitution, he having been convicted by a competent court and on appeal the burden is on him to show that the court which convicted him did so in error. Thus, the loss of the files and proceedings may deprive him of ability to discharge that burden, but it by no means follows that he must of necessity be treated as innocent and automatically acquitted. The interest of justice as a whole must be considered.”

In Pius Mukaba Mulewa and Another v Republic, Criminal Appeal No. 103 of 2001, the court held that “the court had to try to hold the scales of justice and in doing so, had to consider all the circumstances under which the loss occurred. Who stood to gain from the loss” Is it merely coincident that both the magistrate’s file and that of the police are lost” Does the available evidence point to anyone as being responsible for the loss” And if so, can such a party be allowed to benefit from a situation of his own making” In the final analysis, the question to be answered must be whether the order proposed to be made is the one which serves the best interests of justice. We reject any proposition that in cases where a file has disappeared, and it is not reasonably feasible to order a retrial, an acquittal must follow as a matter of course.”

In Danson Maina Muchoki v Republic[2013] eKLR, the High Court considered and dispensed with the argument that an acquittal should follow where court records are alleged to be missing. In its view, the appropriate orders to make where court records were alleged to be missing was not an acquittal, for an appellant had, by his conviction, lost the presumption of innocence. Rather, depending on the circumstances of the case, the appropriate orders to make were for a retrial.

The situation in the South African case thus mirrors the situation in Kenya in that proper recording of court proceedings is paramount to ensure integrity of court records and to also ensure that justice for litigants is not curtailed.

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