The failure by the Cape Town magistrate's court to keep trial records has resulted in a man sentenced to a 10-year jail term walking free.

The court convicted Frank Chaz of “dealing in dangerous dependence-producing substances” and sentenced him in June 2007. Three years of his 10-year jail sentence were suspended for five years.

Chaz took his conviction and sentence on appeal to the high court in Cape Town, and was granted bail pending the hearing.

His lawyer asked the appeal clerk at the Cape Town magistrate's court for the transcript of the trial five days after Chaz's sentencing, but was told the “cassette recordings were set to be transcribed”.

The recordings of the trial were never found again. 

In the absence of the record, the high court in Cape Town overturned the conviction and sentence earlier this month.

“For some inexplicable reason, these cassette recordings were returned. Thereafter, these cassette recordings could not again be located,” deputy judge president Patricia Goliath said in the judgment.

“The trial magistrate's documents and notes could also not be located.”

The matter had gone quiet until May 2017, when Chaz was hauled before the Cape Town magistrate's court on the basis that “the appeal was never submitted to the high court for prosecution”.

Chaz's bail was revoked after the magistrate found he had abandoned his appeal, but the high court overturned the decision in the 2018.

“An inquiry was conducted by the magistrate. As a result it became apparent the relevant clerk had failed to transmit a copy of the record to the registrar of the high court,” said Goliath.

“On January 14  2020, an incomplete record was filed that did not make any reference to the merits of the case, nor did it contain an actual transcript of the proceedings. Despite a diligent search, the relevant clerk was unable to find a complete and satisfactory record of the proceedings. Further, a reconstruction of the record could not be facilitated as the magistrate's notes and documentation could not be located.

“As a consequence, the clerk was unable [to] comply with the duty to transmit a proper and complete record of the proceedings to the registrar of the high court in accordance with the order made by the Judge President [John Hlophe].”

The prosecution told the high court the “tapes are missing, the magistrate's notes disappeared, the prosecutor is no longer in the employ of the National Prosecuting Authority, the docket has disappeared, and part of the record that was transcribed disappeared”.

Though the prosecution admitted there “were indeed problems in connection with the record in this matter”, they said Chaz should also “shoulder some responsibility for what had ultimately transpired” because he “failed to take appropriate steps to prosecute his appeal”.

But Goliath was not persuaded and set aside the conviction and sentence.

“Given the loss of all recorded evidence in this matter, it is clear the record is inadequate for a proper consideration of the appeal,” said Goliath. 

“The nature of the defects in the record are such that the court cannot adjudicate upon the matter and make any findings on the issues to be decided. In these circumstances, it is inevitable that the appellant's conviction and sentence falls to be set aside. Both counsel are in agreement there cannot be a fair trial in the absence of adequate record of the proceedings.”