Where there is no mechanical recorder for recording the evidence, the sitting judicial officer has to keep a full handwritten record of the proceedings. He must make full, clear and accurate written notes of everything that is said and everything that happens during the hearing of the case which is of any relevance in relation to the outcome of the case and the sentence.
All applications made to court must be recorded, together with the reasons why these were made. Maniko & Ors HH-44-91. Evidence-in-chief will normally be paraphrased except for important aspects which must be fully recorded. All cross-examination should be taken down in question-and -answer form.
The keeping of a proper record is vitally important. Where there are substantial and material deficiencies in the transcript this will constitute a gross irregularity, necessitating the quashing of the conviction as the absence of a proper record makes it impossible for a review or appeal court properly to assess the correctness or validity of the proceedings: Davy 1988 (1) ZLR 386 (S); Ndebele 1988 (2) ZLR 249 (H); Ndlovu HB-98-89; Nyedziwa HB-33-90; Maniko & Anor HH-44-91.
Arrangement of record
The record of the case will be assembled in the following sequence:
1. The judgment (verdict and sentence and reasons for judgment) or, if there has been a guilty plea which was accepted, the reasons for the sentence.
2. Charge sheet or summons.
3. Details of prosecution allegation or agreed statement of facts.
4. Recorded evidence (numbered and in correct numerical sequence and stapled together).
5. Documentary exhibits, including the State and defence outlines or statement of facts.
6. Any document recording previous convictions or certifying the absence of previous convictions.
7. The warrant committing X to prison, if any.
All these papers will be secured together and placed in the case cover.
Although all possible care must be taken to ensure that records of cases do not go missing, from time to time records do get lost. The record may go missing prior to or subsequent to the reaching of verdict and the imposing of the sentence.
If the record goes missing whilst the trial is still taking place (i.e. before all the evidence has been heard and the magistrate has arrived at his verdict), then X is entitled to have the case proceed from the point at which it left off. Thus, with part heard cases, the clerk of court, under the direction and supervision of the presiding magistrate, must reconstruct the record from the best secondary evidence. Affidavits should be taken from witnesses and those present. The defence lawyer must ensure that the record compiled in this way is accurate.
Where X had pleaded guilty the case can then proceed on the basis of the restored record, provided there is no prejudice to X. If, however, he has pleaded not guilty the witnesses who have previously given evidence must be recalled in order to ascertain whether they agree that the version of their testimony in the reconstructed record is correct. X's legal representative and the State must be permitted to cross-examine the witnesses relating to the correctness of the reconstructed record: Sibanda HH-80-91.
If the trial has been completed, the trial court is functus officio (has finished dealing with the matter) and the clerk of court must by affidavit state the record has been lost and proceed to reconstruct the record by obtaining affidavits from the magistrate, witnesses and others present, including X's legal representative, as to the contents of the record. Both parties must be given an opportunity to peruse the reconstructed record and to give their versions. Thereafter the record will be sent for review or appeal: Sibanda HH-80-91.
Inadequate certified record
In a number of cases the Supreme Court has stressed that if the certified record is inadequate, because, for instance, it does not indicate what facts were found by the trial court or no reasons for the decision are given, the appeal court may have to set aside the conviction because it will not be possible from the record to be satisfied that the conviction was warranted: Makawa & Anor S-46-90; Marevesa S-108-91.