Lost in Litigation: How Technology Could Prevent Legal Delays in Civil Proceedings

In the matter of Muravha v Minister of Police [2024] ZASCA 11, the appellant (Mr Muravha) was shot by a police officer, who was acting in the course and scope of his employment. The shooting took place at his motorcar scrapyard workshop. Mr Muravha said that a number of protestors ran into his premises followed by the police. Mr Muravha tried to push the protestors out of his premises, but during the commotion he was shot by a member of the police with a rubber bullet. Mr Muravha denied that he was part of the protest action and that he pelted stones at the police. The Minister of Police (the respondent) disputes the place where the shooting took place and according to the police they were requested to deal with the protest action. These witnesses testified that the road near the appellant’s premises were blockaded with scrap metal, and at this place they were ordered to shoot rubber bullets at the protestors because their lives were in danger.

The location where the shooting took place and whether or not appellant was part of the protestors were disputed and because of these dispute the trial court accepted that the appellant and respondent’s versions were mutually destructive, and according to the well-known principles of conflicting versions set out in Stellenbosch Farmers Winery Group Ltd and Another v Martell et Cie SA and Others, the trial court accepted the version of the respondent’s witnesses and, after considering the probabilities of this case, dismissed the appellant’s claim with costs.

On petition to the Supreme Court of Appeal in October 2017, leave to appeal was granted to the Full Court of the Limpopo Division of the High Court, Polokwane, against the dismissal.

When proceeding to the Full Court, the appellant discovered that the entire trial record was lost. The trial record was missing as far back as 26 November 2020. The appellant did not amend his notice of appeal to include the added difficulty of the missing record. In its judgment the Full Court stated:

“The issues raised in this appeal are narrow. The appellant challenges the trial court’s alleged failure to deal with the matter on the pleaded facts of intention. Furthermore, the appellant and the respondent seem not to be dissatisfied with the trial court’s summary of the facts. It is on the basis that I find that the appeal court may proceed with hearing of the appeal on what has been placed before it. It will not in any way affect the appellant’s right to [a] fair trial”.

The Full Court dismissed the appeal with no order as to costs. The appellant sought leave to appeal to the Supreme Court of Appeal and same was granted to him on 11 February 2022.

In his notice to appeal, the appellant sought relief that the appeal be upheld, that the respondent be liable for damages that the appellant may prove, alternatively, that the matter be remitted to the High Court for the rehearing to start de novo before another presiding Judge. On 4 April 2023, the appeal was set down for hearing. On that date the court ordered that the matter was postponed, that the parties were ordered to reconstruct the record of the civil trial, that counsel for the parties be directed to immediately take steps to have the record reconstructed and submit the report to the Supreme Court of Appeal within ninety days of that order and if the record is not capable of reconstruction, the parties are to file a joint report.

The attempts by the parties to retrieve the record were completely unsatisfactory. The Registrar of the High Court stated in an affidavit that the record of the Court proceedings could not be retrieved, that it was done on old machines which have been decommissioned and that has resulted in the recordings not being retrieved.

The Court discussed, in its judgment, that without the record (which includes the evidence in chief, cross-examination and re-examination), the Full Court could not have been in a position to determine whether the appellant and his witnesses’ version of the issues was disputed, the location of the shooting and whether the appellant was one of the protestors. The record of this evidence was necessary before the Full Court could determine the outcome of the appeal. The Full Court laboured under the incorrect assumption that the facts were not in dispute. Both in the Supreme Court of Appeal and in the appellant’s notice of appeal, he contended that the trial court misdirected itself on the facts. When there is a challenge to the factual findings on the record, it is trite that an appeal court will not interfere with the factual findings of a trial court unless the trial court seriously misdirected itself on the facts. To establish this, an appeal court has to consider the trial proceedings. In the absence of the trial record, this is not possible. The Judge further made a comment that after five years, he was not surprised that the presiding officer of the High Court no longer had his notes, and further that

“… for the appellant’s legal representative and the State’s legal representative not to have any notes of the trial proceedings is implausible. More so, the appellant’s legal representative must have known that the appellant intended to appeal and the sensible and responsible thing would have been to ensure the safe keeping of their notes. The failure by the appellant and the respondent’s legal representatives to keep notes of the proceedings well knowing that an appeal is looming is in our view dereliction of duty”.

The Supreme Court of Appeal therefore found that to come to a conclusion on the disputed facts, the Full Court had to look at the record of the proceedings in order to evaluate whether the trial court misdirected itself on the facts. The Full Court’s reliance on the trial court summary of the facts was not borne out of the appellant’s conscientious in this Court and its notice of appeal. As a result, a serious misdirection on the part of the Full Court has occurred. The Full Court wrongly decided the matter without the record of the trial proceedings. In terms of Section 34 of the Constitution, the appellant was entitled to a fair trial. Without the record in this case, it cannot be said that the appellant had a fair trial.

The Supreme Court of Appeal therefore upheld the appeal with no order as to costs. It therefore set aside the Full Court’s decision and replaced it with an order that the matter is remitted to the trial court to stand de novo (in other words from the very beginning) before another Judge.

It is interesting to note, from our outside perspective view, that these proceedings started many years ago, and that the matter, after seven years of litigation, must start from the beginning in order to protect a person’s rights to a fair trial. Interestingly enough, and as at 2017, there was limited technology available in trial proceedings. One has to bear in mind that there are a lot of discussions, evidence and so forth that should be captured by recordings – which does happen be it in this matter the recordings were not retrievable. Currently, and practically, most practitioners I know and in our practice, will ensure that they independently record proceedings and with the developments in various platforms of artificial intelligence, those transcriptions of the notes have become far easier, which would allow any party in these proceedings to properly prepare for their examination-in-chief / cross-examination and so forth, even argument. What would the weight and correctness of those types of recordings and transcriptions be? I cannot speculate at this stage, but what I can say is that in this particular situation, the development in technological assistance to avoid these types of matters and the delays as a result thereof, could possibly be completely avoided.

My further comment in these entire proceedings is relating to the fact that one is dealing with an individual who clearly was injured – I do not have access to his initial claim but I cannot fathom that he would have had minor injuries as a result of the shooting and therefore would not have elected to pursue same unless he was severely injured. Seven years later and the injured individual has found no relief. It would be interesting to see if another Court would come to another finding based on the facts at hand and I will keep an eye on this matter and any further developments therein.

The content does not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. Kindly contact us on info@cklaw.co.za or 021 556 9864 to speak to one of our attorneys.