A litigant’s right to a fair trial and a lost trial record

25 March 2024 ,  Jonathan Le Riche 590
In a recent matter, Muravha v Minister of Police (179/2022) [2024] ZASCA 11 (30 January 2024), where we were fortunate enough to act as the local correspondent in the Supreme Court of Appeal, the Court had to decide on exactly this issue. 

The facts of the matter are that Mr Muravha was shot with a rubber bullet by a member of the SAPS who was acting in the course and scope of their employment. The shooting took place while protestors were trying to enter his business. Mr Muravha accordingly instituted action against the Minister of Police for damages. 

The trial court, in its evaluation of the evidence accepted that the versions of Mr Muravha and the Minister of Police were mutually destructive. In so doing the court accepted the version of the Minister’s witnesses. On a balance of probabilities, the court found in favour of the Minister, and dismissed Muravha’s claim. 

On 27 October 2017,  leave to appeal was granted to the Full Court of the Limpopo Division of the High Court, Polokwane. On 14 May 2021, the matter was heard by the Full Court and on 19 October 2021, the appeal was dismissed. 

The issue however was that the record of the trial proceedings (evidence in chief, cross-examination and re-examination) was not before the Full Court as these recordings had been lost. The Full Court therefore had to deal with the matter based on a summary of facts which was provided by the trial court.

Mr Muravha subsequently sought special leave to appeal from the SCA and leave was granted on 11 February 2022. The matter was initially enrolled for the 4th of April 2023 but the SCA insisted that without the record or at least a reconstruction thereof it would not be in a position to properly hear the matter. As such the parties were ordered to attend to the reconstruction of the record of the civil proceedings in the trial court. 

The matter was re-enrolled for hearing on 3 November 2023. It was brought to the attention of the court and the parties that the recordings of the proceedings were recorded on old DCRS machines which had since been decommissioned and therefore the reconstruction was not possible. 

The SCA held that since there were disputes between the parties in relation to the summary of evidence, which was before the Full Court, the Full Court misdirected itself by deciding on the matter without the record of the trial proceedings. 

The SCA further held that in terms of Section 34 of the Constitution, Mr Muravha was entitled to a fair trial and in this case, without the record of the proceedings, it cannot be said that he in fact had a fair trial.

Accordingly, the SCA upheld the Appeal and then remitted the matter to the trial court to start de novo (afresh) before another presiding judge. 


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Related Expertise: Appeals
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