ConCourt releases prisoner convicted of girlfriend's murder

The Constitutional Court on Tuesday 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 Phakane should be recharged with murder.

Phakane was convicted of murdering his girlfriend 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 in the Capricorn District Municipality in Limpopo.

Phakane was sentenced by the Polokwane Circuit Court to a prison term of 20 years in October 2009.

When Phakane appealed to a full bench of the Pretoria High Court‚ the transcript of evidence in his trial did not contain the evidence of the main witness‚ Martha Manamela.

Efforts to reconstruct the record were unsuccessful.

Despite the absence of Manamela’s court evidence‚ the full bench held that the absence of the transcript was not such that it could not fairly determine the appeal. On November 3 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‚ as summarised by the Circuit Court‚ and the contents of her earlier statement she made to the police in September 2006.

In her statement to the police‚ Manamela said Phakane‚ with whom she had a romantic relationship‚ came to her home on August 20 and told her he had had a fight with Boshomane.

Manamela said Phakane told her he had assaulted Boshomane with his waist belt and left her in a grazing field next to her home. In the statement‚ Manamela also said Phakane went to the field where he had left her and could not find her.

However‚ in her testimony as summarised by the trial court‚ Manamela said Phakane told her he had killed Boshomane and said he wanted to throw the corpse into a pit toilet.

Zondo said the judgment of the trial court did not ask Manamela why the critical part of her evidence was not in a statement and how she explained the conflict.

Zondo said the trial court also did not take into account the fact that when Manamela made her statement in September 2006‚ she was still in a romantic relationship with Phakane‚ but when she testified in court the two had broken up.

“In the present case the Full Court did not have before it a record on the basis of which it could fairly assess whether the trial court’s conviction of the applicant was correct. The trial court record available to the Full Court was simply not adequate for a proper consideration of (Phakane’s) appeal‚” Zondo said in his judgment.

He said Phakane’s right of appeal was frustrated by the fact that material evidence was missing from the record.

“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‚” Zondo said.