Justice delayed due to problem of lost court records

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To read the article as it first appeared in the Saturday Star, click here

By Kyla Herrmannsen

Missing court records and administrative errors continue to cause court delays.

Ever since his conviction for drug-dealing in 2009, *Samuel Khune has tried to file an application for leave to appeal. Yet, Khune, who is serving a 12-year sentence in the Eastern Cape’s Mdantsane Correctional Centre, has still not had his day in court.

Though the constitution states that “every accused person has a right to a fair trial, which includes the right to appeal to, or review by, a higher court”, the reality is a different matter. Missing transcripts and court records continue to plague sentenced offenders in their attempts to exercise this right. In Khune’s case, the tape-recordings of his case have disappeared.

This seemingly administrative issue is not just bureaucratic. It profoundly affects the lives of those behind bars and violates their constitutional rights. However, a judgment in the Western Cape High Court earlier this year offers some hope to sentenced offenders – missing court records may now be grounds for releasing convicted criminals who are unable to appeal their convictions because of the lost records.

An application for leave to appeal cannot proceed without access to court transcripts. When the records are unavailable or shown to be missing, it falls on the magistrates to reconstruct the case on the strength of their notes. This lengthy process leads to further unnecessary court delays.

In Khune’s case, efforts to reconstruct records on the basis of the magistrate’s notes were said to be not thorough enough by the director of public prosecutions in Grahamstown in June. Judge Sytze Alkema, of the Grahamstown High Court said, in relation to Khune’s case, that the problem of lost records was becoming more and more common.

Leading to further delays, he ordered Khune’s case be removed from the roll to allow for the missing tapes to be found and transcribed. A frustrated Khune asked, “Why they take long time to finalise this appeal? Really I’m suffering and my family outside they’re suffering.”

Khune is not alone. In 2009, 440 prisoners were unable to access their transcripts in the Gauteng region – they were told their records had been lost or were “inaccessible”.

In addition, Legal Aid Johannesburg requested 200 transcripts over a 24-month period and none were provided. In 2010, an audit of 54 cases at the Johannesburg High Court revealed that, on average, prisoners had to wait two years from the date of lodging their leave to appeal application until they received their court records.

Take Pieter Davids, for example. He was convicted of murder in 2005 and sentenced by the Bredasdorp Regional Court to 15 years in prison. Davids’s leave to appeal was delayed by years because “tape recordings of the proceedings could not be traced” – the records the high court needed to consider his appeal were missing.

Judge Lee Bozalek of the Western Cape High Court ruled that the “excessive delay” in accessing justice “amounted to a miscarriage of justice”. Davids was released.

Though Bozalek highlighted “several other instances of missing records in the same courts”, a precedent has not been officially set. Other sentenced offenders who face the reality of lost or missing court records have not had their cases set aside.

Administrative errors such as incorrectly transcribed records also play a role in creating unreasonable delays. Service provider iAfrica Transcriptions is responsible for transcribing court proceedings in the Gauteng and Limpopo regions.

iAfrica Transcriptions inherited a system in disrepair – the previous service provider’s IT system crashed in 2006, resulting in thousands of lost records. To date, iAfrica Transcriptions has restored 80 percent functionality to the system, managing to retrieve records affected by the crash.

However, administrative issues and human error involved in physical transcription sometimes mar this success. According to an administrative clerk in the appeals office at a Johannesburg-based court, “iAfrica Transcriptions makes mistakes, a lot of mistakes”. These mistakes, she noted, led to court delays.

Take the case of *Eric Mkhize, who is serving an 18-year sentence for robbery in Baviaanspoort Maximum Centre. His leave to appeal was dismissed in 2012. A frustrated Mkhize, who has been trying to petition the court ever since, said “up to this day my petition is still stuck in their offices”.

The reason? Another court clerk, who processes and prepares petition files to be sent to the South Gauteng High Court, picked up an irregularity in Mkhize’s paperwork. He noticed that Mkhize’s charge sheet stated 18 years while the sentence handed down in the final court judgment – as recorded in the iAfrica Transcriptions transcript – read 18 months.

The clerk requested that the court recording – an audio file on CD – be retranscribed to clarify the sentencing inconsistency. The “new” transcript subsequently confirmed that Mkhize had been sentenced to 18 years.

In the initial transcription – the one used by Mkhize’s attorney Ace Ndou in his leave to appeal trial – not only was the sentence incorrectly transcribed, but entire sections of the court proceedings were omitted – including entire sections of witness and expert testimony.

Tired of administrative errors such as the one relating to Mkhize’s case, the court clerk said: “Every week we find a mistake somewhere.” According to the Department of Justice and Constitutional Development’s director of district courts efficiency services, Mahomed Dawood, service-level agreements are established with all service providers, such as iAfrica Transcriptions, and financial penalties apply for work that is sub-standard.

Yet Hertzog Nel, the director of iAfrica Transcriptions, says: “We can only transcribe what we can hear from the actual recording…” He maintains that this is “the first time something like this has happened” and says that the matter is being investigated.

* Names changed to protect anonymity

Kyla Herrmannsen is a member of the Wits Justice Project, which investigates prison conditions and miscarriages of justice. The project is based in the Journalism Department at the University of the Witwatersrand

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About witsjusticeproject
The Wits Justice Project combines journalism, advocacy, law and education to make the criminal justice system work better for all.

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