Rape convict will hear on Friday after four-year wait if he can finally appeal

27 April 2017 - 16:04 By Naledi Shange
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A convict who has fought farcical circumstances for almost four years for the right to appeal against his rape conviction‚ hopes to hear on Friday if his persistence will pay off.

Lerato Khaole was accused of rape in 2008. The Germiston Magistrate’s Court handed down a 10-year jail sentence in May 2013. He has been fighting ever since for the right to appeal against both the conviction and sentence in the High Court. On Friday‚ the Germiston court is due to decide whether or not to grant Khaole leave to appeal.

Khaole says his chapter on “miscarriage of justice” started when his request for an appeal hearing took so long to be granted‚ his lawyer died before it could be finalised. His case also went on to hit numerous delays as integral parts of the transcripts of his trial have gone missing.

Time and time again‚ Khaole has appeared before the courts‚ only for his matter to be turned back‚ because of the missing transcripts.

Lawyers for Human Rights said Khaole’s case is not an isolated one.

“I get calls from inmates across the country whose criminal appeals are delayed for years on account of missing transcripts‚” said attorney Clare Ballard‚ adding that on average they received reports of about 60 similar cases each year.

Ballard explained: “The step to follow once it has been established that the trial transcripts are missing‚ is to reconstruct the record with the notes of the lawyer and magistrate.”

Suhayfa Bhamjee‚ law lecturer at the University KwaZuly-Natal‚ said missing court documents have in the past resulted in matters being thrown out of court and convicted prisoners intending to appeal‚ being set free.

“The inmate would essentially ‘win’ because there is nothing for the court to look at so he is given the benefit of the doubt. When it comes to deciding on an appeal‚ the court has to have a full record‚ transcripts included‚ in order to hear that appeal‚” Bhamjee said.

Alternatively‚ the prosecuting authority could reinstate the charges‚ she said.

Khaole could be considered for parole next year but he is adamant that he wants his conviction overturned.

“It has been emotionally‚ physically and financially draining to be in here‚” he said during a telephone call from Boksburg Prison.

“I don’t want to live with that criminal record.”

Chief Justice Mogoeng Mogoeng’s office said they are in the process of designing‚ building‚ testing and deploying an electronic filing system.

While noting that technology also opened the doors to hacking and confidentiality breaches‚ Bhamjee said "if the court process were to ... scan records and all documents‚ it may be a way forward and alleviate [problems of missing documents] in future".

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