Man's murder conviction set aside

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The Constitutional Court yesterday ordered the immediate release of a man who was sentenced to a lengthy prison term for murdering his girlfriend in 2006.

The court set aside the murder conviction of Lesetja Klaas Phakane because the evidence of a critical witness was missing from the appeal record.

The Constitutional Court said after Phakane's release it would be necessary for the National Prosecuting Authority to consider whether he should be recharged with murder.

He was convicted of murdering Matilda Chuene Boshomane in August 2006. The date and cause of her death could not be determined because her body was found in a decomposing state in a veld in Kordon, GaMatlala, in Limpopo. Phakane was sentenced by the Polokwane Circuit Court to a prison term of 20 years in 2009.

When Phakane appealed to a full bench of the North Gauteng High Court in Pretoria, the transcript of evidence in his trial did not contain the evidence of the main witness, Martha Manamela. The full bench held that the absence was not such that it could not fairly determine the appeal. In 2014, it dismissed Phakane's appeal but reduced his sentence to 15 years. 

Phakane turned to the Constitutional Court, arguing that the failure of the state to furnish a complete trial record for his appeal constituted an infringement of his constitutional right to a fair appeal.

In a majority judgment, Constitutional Court Justice Raymond Zondo said the trial court said nothing in its judgment about the discrepancy between Manamela's evidence in court and the contents of her earlier statement to the police.

In her statement, Manamela said Phakane told her he had assaulted Boshomane with his belt and left her in a field next to her home. However, in her testimony, she said Phakane told her he had killed Boshomane and he wanted to throw the corpse into a pit toilet.

Zondo said the trial court did not ask Manamela how she explained the conflict or take into account that when Manamela made her statement in 2006, she was still in a romantic relationship with Phakane, but when she testified in court the two had broken up.

"In my view, his right to a fair appeal has been so compromised that his appeal could not be fairly determined. That being the case, the proper remedy is to set aside the trial proceedings in their entirety."

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