Rape conviction set aside after blunders by East London court officials

The Makhanda high court has set aside an East London man’s 2017 child rape and sexual assault conviction as well as his 12-year jail sentence following a series of technical blunders in the East London regional court.

The accused, Siphiwo Manga, was in 2017 convicted of raping and sexually assaulting a child at the East London police barracks. He was sentenced to an effective 12-year jail term.

But, in the course of preparing the record for Manga’s petition to the judge president against both his conviction and sentence, it was found that the transcript of the evidence was almost non-existent. The reasons for the woefully incomplete transcript could not be explained to the high court hearing Manga’s petition.

Attempts to augment the scanty record by relying on the magistrate and prosecutor’s notes also came to naught.

Judge Thembekile Malusi, with judge Justin Laing agreeing, found the regional magistrate’s contemporaneous notes made at the trial were so inadequate that they contributed little. To make matters worse, the prosecutor had claimed to have lost his trial notes and said he could find no trace of the accused’s defence attorney.

Between a prosecutor who had lost his notes, a vanishing defence attorney and a magistrate whose notes were found to be too “terse” and “cursory” to contribute much, Malusi said the court had no choice but to set aside the conviction and sentence.

Malusi said a record was not required to be a “perfect” record of the trial.

But he said where it was clear from the record that “so much material evidence is missing to render impossible a fair assessment of the record”, then the proceedings had to be set aside.

This had all been aggravated by what he termed procedural failures.

“The regional magistrate appears to have done the reconstruction from his notes with neither the state nor the defence being involved. The prosecutor deposed an affidavit approximately three weeks after the reconstruction but makes no comment on the reconstructed evidence. He only states that he could not find his notes.”

The reconstruction had not been done in open court and Manga had not been given the opportunity to respond to it.

Malusi emphasised that he was setting aside the conviction and sentence due to “technical” irregularities and that the office of the Director of Public Prosecutions had a discretion to start afresh with a new trial against Manga in front of a different magistrate.

“This is a serious case as it involves allegations of the sexual violation of a child.”

The NPA’s regional office had not yet responded at the time of writing.

The ... magistrate’s contemporaneous notes made at the trial were so inadequate they contributed little