Two decades after he had been meted out four life imprisonment sentences on various charges of rape, the Gauteng High Court, Pretoria has now ordered a prisoner’s immediate release from jail as the record of his trial proceedings during 2004 are missing.
Mpho Kekae had been struggling to appeal his convictions and subsequent sentence for the past 15 years. His first bid to appeal was sent to court in 2009, but due to administrative and other problems, it simply could not get off the ground.
The court was not able to decide his appeal on the facts before it, as there were no facts as contained in the trial record which formed the basis for his conviction 20 years ago. Three judges faced with Kekae’s appeal, remarked: “With the evidence of the two complainants missing, this full Bench court is faced with Hobson’s choice (when there is no real alternative).”
Even the State in this matter conceded that there was no other choice but to simply release Kekae from custody.
In 2004, the appellant (Kekae) appeared at the Brits Regional Court before magistrate L E Matthee, who sentenced him to four life terms.
In 2009, the appellant brought an application for appeal before the Brits Magistrates Court. The clerk of the court at the time wrote a letter apologising for the delay in responding to his application.
Acknowledging that the court received the application, he stated that it was forwarded to the magistrate, who requested the appellant to draft a new application for appeal because his application was late.
Kekae subsequently sent a letter in August 2009 titled application for appeal to the clerk of the court in Brits. Having been approached by the appellant for legal assistance, the Legal-Aid South Africa, Ga-Rankuwa Justice Centre sent a letter to the clerk of the criminal court in Brits a few days later.
In the letter it was indicated that they had received instructions from the appellant to assist him with an application to appeal and he was requesting to be furnished with the transcribed records of the trial proceedings.
However, for seven years, nothing happened and it was only in October 2016 when it was indicated that the appeal was proceeding. The appeal came before the court two years later – in 2018 – when the matter was postponed indefinitely for the record to be reconstructed due to absence of the evidence of the two complainants and other witnesses during the initial trial.
Six years later, in March this year, it was explained via a letter to the high court by the Brits Magistrate’s Court that the record could not be reconstructed because the magistrate who had handled the matter was retired and was not in good health.
The high court now said without the evidence of the afore-mentioned witnesses, the full Bench was unable to accord the appellant his rights as enshrined under the Constitution.
“The situation in this matter is exacerbated by the fact that the appellant has waited for nearly 15 years for the reconstruction of the missing record and for his appeal to be heard. He has been incarcerated for 20 years since his arrest,” the three judges, which include Judges Nomsa Khumalo and Mandlenkosi Motha, said.
They further commented that in the meantime, any likelihood of such an attempt succeeding (to find the record or to reconstruct it) had been thwarted as the presiding officer in the trial court was on pension and not in good health.
“The missing evidence from the record is at the heart of this matter. This court must consider the evidence of the complainants to arrive at a just decision. The challenging factors that impede the reconstruction of the record imperils this appeal.
“In essence, the appellant’s right to a fair trial, victims’ rights to see justice served and society’s rights to a fair administration of justice have been dealt a fatal blow, “ the judges said.
They ordered that his initial conviction and sentences (four life terms) subsequently had to be overturned due to the problems. The head of the Kgosi Mampuru Prison in Pretoria was ordered to immediately free Kekae.
Pretoria News