Court name
Supreme Court
Case number
SA 1 of 1993
Title

S v Kau and Others (SA 1 of 1993) [1993] NASC 2 (15 October 1993);

Media neutral citation
[1993] NASC 2











CASE
NO. SA 1/93



IN THE SUPREME COURT
OF NAMIBIA In the matter between





  1. TOBIAS KAU



  2. AIEL XAO KGAO



  3. KLEINBOOI STICHE



  4. NC EMSJE XOSJE



  5. KGAO TSASCJE



  6. N#AMSHE



  7. XOSJE NEMSJE



  8. N#AN#I CWI



  9. XGAO CWI



  10. CWI T#IT#E








  1. ASSER N#AO



  2. MOSES TSEMKXAO GAO



  3. CWI XAU



  4. XGAU CIUAE



  5. CWI N#OUDA



  6. XAO CIQAE versus




THE STATE



FIRST



SECOND



THIRD



FOURTH



FIFTH



SIXTH



SEVENTH



EIGHTH



NINTH



TENTH



ELEVENTH



TWELFTH



THIRTEENTH



FOURTEENTH



FIFTEENTH



SIXTEENTH



APPELLANT



APPELLANT



APPELLANT



APPELLANT



APPELLANT



APPELLANT



APPELLANT



APPELLANT



APPELLANT



APPELLANT



APPELLANT



APPELLANT



APPELLANT



APPELLANT



APPELLANT



APPELLANT





CORAM: MAHOMED,
C.J et DUMBUTSHENA, A.J.A, et CHOMBA, A.J.A.



Heard on:
11/10/1993 Delivered on: 15/10/1993



APPEAL JUDGMENT



DUMBUTSHENA,
A.J.A.
: All sixteen appellants were charged














and
convicted by the Magistrates* Court sitting at Tsumkwe of two counts
of wrongfully and illegally hunting specially protected game, namely
Giraffe, in contravention of section 26(1) as read with section 1,
26(3), 85, 90 and Annexure "3" of the Nature Conservation
Ordinance 4 of 1975, as amended. Section 26(1) reads:



"No person
other than the lawful holder of a permit granted by the Executive
Committee shall at any time hunt any specially protected game."



All the appellants
denied the charges. They were, however, convicted as follows:
Appellants numbers 2, 4, 6, 9, 10, 11, 12, 13, 14 and 15 were found
guilty of hunting and killing a giraffe on 2 January, 1992 in the Nam
Tsoa Region in the district of Grootfontein. Appellants numbers 1, 2,
3, 4, 5, 7, 8, 9, 11, 13, 14 and 16 were found guilty of hunting and
killing a giraffe on 7 January 1992 at Nam Tsoa Region. A few of the
appellants namely 2, 4, 9, 11, 13 and 14 were convicted on both
counts.



They were sentenced
as follows: Appellants numbers 1, 3, 5, 6, 7, 8, 10, 19, 15 and 16,
who were convicted on count one only, were each sentenced to a fine
of Rl 000,00 or in default of payment, one years' imprisonment. In
addition each one of them was sentenced to 6 months imprisonment
wholly suspended for 4 years on appropriate conditions. Appellants 2,
4, 9, 11, 13 and 14, that is those convicted on both counts, were
each sentenced to a fine of R2 000, or in default of payment, 20
months imprisonment. In addition each appellant was sentenced to 9
months' imprisonment wholly suspended for 4 years on appropriate
conditions.



3



They all appealed to
the High Court against both conviction and sentence. Their appeals
were dismissed. They now appeal to this Court with leave from the
Court a quo.



The facts in this
case are briefly as follows. On 2 January 1992 a giraffe was hunted
and killed at Nam-Tsoa in the district of Grootfontein. On 7 January
1992 another giraffe was killed apparently near the place where the
first one was killed. No one saw people killing both giraffes. In the
case of the killing charged in count one, no one saw the dead
giraffe. Kaece Kxao, an employee of the Ministry of Wildlife and
Conservation and two companions saw giraffe hoves and footprints.
They followed the footprints and came across a partially skinned
giraffe. There was no person there. After a while people arrived.
Some of them were interrogated and all of them were ultimately
arrested. They were tried and convicted on 23 January 1992.



Kaece Kxao was
called by the State to testify. He told the Court that on 7 January
1992 he left Nam-Tsoa in the company of two others. As he was driving
around he saw vultures. He drove where the vultures were hovering. He
observed giraffe hoves and footprints. He followed the footprints and
came across a partially skinned giraffe. He did not see anyone at the
spot. He, however, observed knives, axes and spears and many other
items. Ultimately people who later became accused number 1, 2, 3, 4,
13 and 14 arrived. He testified:



"Accused 1 said
he and accused 11 were the persons



who
were riding horses while they were chasing the giraffe. Jafer Katuuo
took down the accused 1; 2; 3; 4; 13 and 14 names. Accused 3 was
handed over to me for interrogation. He also confirmed that the two
horses were used to chase and kill the giraffe. The other two horses
were used to transport the meat back and forth from home. From the
spot we gave accused 1; 2; 3; 4; 13 and 14 a lift back to Nam-Tsoa
where we continued with investigation. With the further investigation
we established that accused 2; 4; 6; 9; 10; 11; 12; 13; 14 and 15 ...
we had confronted 2; 4; 6; 9; 10; 11; 12; 13; 14 and 15 and they all
said they killed the first giraffe. The second giraffe which was half
skinned was killed by accused and they said they killed the second
Giraffe."



I have reproduced
the above evidence in order to show the kind of evidence relied upon
by the Magistrate to convict the appellants. Appellants were
interrogated by Kaece Kxao, a person in authority in the Ministry of
Wildlife and Conservation and in the District of Grootfontein. The
trial Magistrate never considered whether the admissions allegedly
made to him were made freely and voluntarily. The issue of
voluntariness of the admissions was raised and specifically referred
to in paragraph 11 of the amended Notice of Appeal. But the trial
Magistrate did not comment in his reasons for convicting appellants
on what was referred to in paragraph 11 of the amended Notice of
Appeal.



The Court a quo
came to the view that the admissions narrated above were inadmissible
and said:



"Insofar as the
Learned Magistrate relied on so-called 'testimony* consisting of
what Mr Kao



established'
on 'further investigations', such testimony is inadmissible.
Insofar as the Learned Magistrate relied on admissions allegedly made
to Mr Kao, their admissibility will depend on whether the provisions
of sections 217 and 219A of the Criminal Procedure Act were complied
with ...



It is clear from the
record and the Magistrate's reasons that he paid no attention
whatsoever to the question of admissibility. The alleged admissions
were not admissions of all the elements of the offence and were not
unequivocal admissions of guilt. Section 219 A is thus applicable,
which requires proof by the State beyond reasonable doubt that the
admissions were freely and voluntarily made - in the sense that it
had not been induced by any promise or threat proceeding from a
person in authority."



The Court a quo
cited R v Barlin 1926 AD 459 at 462.



Mr Kao was a person
in authority. The onus was upon the State to prove that the
admissions made by the appellants were made freely and voluntarily.
This was not done. The Court a quo found that the Magistrate
had misdirected himself on this point. And having come to the view
that the admissions did not cover all the elements of the offence, it
is more than surprising that the Court a quo confirmed the
convictions.



The Court a quo
erred when it decided the guilt of the appellants "on the
remaining admissible evidence." It was common cause in this
appeal that there was no credible evidence on the record supporting
or justifying the conviction on count one. In my view the Court a
quo erred



6



when it held that
appellants1 plea explanation to the effect that: "(+)hey
were instructed by Uijo the headman to hunt and kill the giraffe"
was an admission and that " ( + )his defence included by the
clearest implication, the admissions that they did hunt and did kill
the giraffes as alleged. The defence was repeated in
cross-examination by various accused when CWIT#IT#E testified but the
said witness vehemently denied the allegation."



Was the Court a quo
right? It appears to me that the statement that was repeated by all
appellants in their plea explanation: "I was instructed by
/Uijo to hunt and kill the giraffe." was not an admission of
guilt. The appellants were saying they killed the giraffe because
they had received the authority to hunt and kill a giraffe from Uijo.
In other words they had no mens rea to commit the offence.
That was the burden of the appellants' cross-examination. They had no
intention to hunt without authority. They approached the headman.
He gave them permission. That is the reason, in my view, why
appellant number 10, accused 10 at the trial, testified : "Witness
said we should go and hunt giraffes and pay his grass and water with
meat. We and the witness are all guilty. If he doesn't have money he
should go to prison with us. He is the owner of the place -we
wouldn't have hunted without his permission." Why did appellant
number 10 want the headman to go to prison with them? It was because
he had given them permission to hunt and kill the giraffe. The plea
explanation is not inconsistent with appellant's pleas of not guilty.



7



I agree with Mr
Kuny in his submission that the appellants pleaded not guilty and in
support of their pleas indicated that the headman had instructed them
"to hunt and kill giraffe." This plea explanation certainly
suggests that they believed that, by reason of the instructions, they
might have been legally permitted to hunt the giraffe, having been
authorised and instructed to do so by the headman (and therefore,
that they had no mens rea) .



If there was a
doubt in the mind of the trial Magistrate as to whether the plea
explanation meant that the appellants were merely admitting the
offence, he should, in my view, have cleared that up by asking
appropriate questions. He did not. In view of the fact that
appellants were not legally represented, failure to reconcile
appellants' pleas with their plea explanations must have created some
doubt in the mind of the Magistrate. The Magistrate should have
satisfied himself as to what they meant instead of concluding that
the plea explanation was an admission. See S v Daniels en Ander
1983(3) SA 275 (A) at 300 B.



It is clear from
the evidence on the record that there was no evidence justifying the
conviction of appellants on count one.



The appellants were
each charged individually. There was no common purpose alleged or
proved. The evidence did not establish what each appellant did or
what act each had carried out in the commission of the offences. And
in view of what has been said above with regard to admissions there



8



was equally not
sufficient evidence to prove that appellants, that is, on the merits,
hunted a specially protected giraffe without a permit or the
authority of the headman.



I have dealt above
with the conviction of the appellants based, as it was, on the merits
or evidence adduced by the State. It is clear that there is very
little or no evidence on the record to sustain the convictions.



The main contention
in this appeal was that because the appellants were unrepresented
accused the trial Magistrate had failed in his judicial duty to
inform the appellants of their right to legal representation and the
many other rights they should have been informed about and that he
failed to exercise that duty. The Magistrate's failure to explain or
inform appellants of their rights is clearly tabulated in the Notice
of Application for Leave to Appeal settled by Mr Kuny who appeared
for the appellants with Mr Botes. The grounds of appeal on
irregularities were set out as follows:



"That the
Learned Judge erred in law and/or on the facts in not finding;



(a) that the
Magistrate's failure to inform the aforesaid 16 Applicants that they
were entitled to legal representation, was an irregularity of such a
nature as to constitute a fatal irregularity which warranted the
upholding of the appeal for the setting aside of the conviction and
sentences imposed;



9




  1. that the learned
    Magistrate's failure to explain fully to the 16 Applicants their
    rights in terms of Section 114 of Act 51 of 1977, was an
    irregularity of such a nature as to warrant the setting aside of the
    convictions and sentence imposed;



  2. that the trial
    Magistrate failed to explain to the Applicants the existence and
    implication of the presumption created by Section 85 of the
    Ordinance 4 of 1975, as amended, was an irregularity of such
    a nature as to warrant the setting aside of the conviction and
    sentence imposed;



  3. that the
    Magistrate's failure to explain the Applicants right of
    cross-examination fully to them constituted an irregularity of such
    a nature as to warrant the setting aside of the convictions and
    sentence imposed.




Before dealing with
the argument of counsel it is important to set out the approach
adopted by the trial Magistrate when he dealt with appellants'
rights. He did not inform the appellants of their right to legal
representation. I shall deal with this ground of appeal later in this
judgment. After the appellants had pleaded he said to them: "You
may reveal the basis of your defence or remain silent if you wish."
Section 115 of 51 of 1977 obliges the Presiding Officer to ask
questions if it is not clear from accused's



plea explanation to
what extent he denies or admits the



issues raised in his
plea and which issues are or are not in



dispute. The
accused should be informed that he is not



obliged to answer
questions. In the instant case the



appellants were not
asked questions nor were they informed



that they were not
obliged to answer questions. There was



a bare assertion:
"You may reveal the basis of your defence



10



or remain silent if
you wish". The appellants were told what to do and the
Magistrate recorded his instructions without sufficient
particularity, to enable a judgment to be made as to the adequacy of
the explanation. See S v Daniels 1983(3) SA 275 (A) at 299 G.



This was irregular.
The principle, in cases of this nature, is that any irregularity
which prevents the evidence from being comprehensively and reliably
placed before the Court, thereby raising doubt as to the correctness
of the conviction, leads to a failure of justice. The failure to
follow the procedures laid down in section 115 of Act 51 of 1977 as
amended in this case resulted in a failure of justice because the
Magistrate did not explain the implications of section 115 and/or the
consequences flowing from the appellants revealing the foundation of
their defence. See S v Evans 1981 (4) SA 52 (C); English
Headnote part of which reads:



"The Court has
a duty to inform the accused at the stage when he indicates the
basis of his defence that he is not obliged to answer questions.
Failure to comply therewith is an irregularity in the proceedings.
The exact manner in which this explanation is made to the accused is
not important. However, it must appear from the record that his
rights were explained.to him; in such a manner and with sufficient
particularity that it can be judged whether the explanation was
sufficient. The annotation "rights explained" would not be
sufficient.



An explanation
which would suffice in most circumstances would be: "Do you
wish to make a



11



statement which
indicates the basis of your defence? You do not have to make a
declaration. The court is in any event entitled to question you to
establish what the points of dispute are, but you do not have to
reply thereto."



This was not done.
The trial of appellants was not for this reason alone fair. In this
appeal Mr Kuny contended that



the Magistrate's
failure to inform the appellants that they



were entitled to
legal representation was an irregularity



which vitiates the
conviction.



In Namibia the duty
of Judicial Officers to inform an unrepresented accused is placed
upon them by the Constitution. Article 12(1)(e) provides:



"All persons
shall be afforded adequate time and facilities for the preparation
and presentation of their defence, before the commencement of and
during their trial, and shall be entitled to be defended by a
legal practitioner of their choice
. (The underlining is mine).



Article 12(1) of the
Constitution embodies all the principles which make it possible to
hold fair trials, these principles are: All persons are entitled to a
fair and public hearing. They must be tried by an independent and
impartial and competent Tribunal or Court. The trial has to take
place within a reasonable time. If *it does not the accused should be
released. Judgments in criminal cases are to be given in public.
Persons charged with offences are presumed innocent until they are
proven guilty according to law after calling witnesses and
cross-examining those called against them. Section 12(1)(e) above.
And what is more



12



people are entitled
to be defended by a legal practitioner of their choice. And accused
are not to be compelled to give testimony against themselves or their
spouses.



These rights and
provisions are there to ensure that people charged with offences are
tried fairly.



In Namibia the right
to be defended by a lawyer of one's choice is a constitutional right.
When the trial Magistrate failed to inform the appellants of this
right he deprived them of their constitutional right. Because the
right is given to the people by the Constitution it is the duty of
judicial officers to inform those that appear before them of their
right to representation. There, of course, will be exceptional cases.
A lawyer who appears before a judicial officer is expected to know
his right to legal representation. There are many such other people,
educated and knowledgeable who need not be informed. If they do not
know, they must be informed,



It is also important
to note what the Learned Judge President, Mr Justice Strydom, said in
S v Bruwer 1993(2) SACR 306 (Nm) at 309 b:



"... I agree
with Mr Smuts that the legal basis of the concept of a "fair
trial" in Namibian law differs from that of the law in South
Africa. I am also mindful of the fact that reference in our
Constitution to a fair trial forms part of the Bill of Rights and
must therefore be given a wide and liberal interpretation. However, I
fail to see how it can be said, even against this



13



background, that a
trial will be less fair if a person who knows that it is his right to
be legally represented, is not informed of that fact. Whether the
fact that an accused was not informed of his right to be legally
represented, resulted in a failure of justice, is, as in most other
instances where a failure of justice is alleged, a question of fact."



The legal basis of
the concept of a fair trial in Namibian law differs from that of
South Africa. For instance the right to inform unrepresented accused
persons of their right to legal representation has its foundation in
the Constitution of Namibia. It has no such foundation in South
Africa. In this respect Strydom, J.P. remarked as follows in S v
Bruwer
, supra, at 309b;



"I am also
mindful of the fact that reference in our Constitution to a fair
trial forms part of the Bill of Rights and must therefore be given a
wide and liberal interpretation. However, I fail to see how it can be
said, even against this background, that a trial will be less fair if
a person who knows that it is his right to be legally represented, is
not informed of that fact."



But in the exercise
of his discretion the judicial officer may decide not to inform a
lawyer who appears before him of his right to legal representation
because he ought to know it. In this respect there is no difference
in the practice used in Namibia and in South Africa. See S v
Rudman
1992(1) SA 434 (AD) and S v Mabaso and Another 1990
(3) SA 185 (A).



In the instant case
it was important for the appellants to



14



be informed of
their right to legal representation. It is common cause that they
were more or less illiterate, uneducated and lacked previous
exposure to the legal system. From a reading of the record it is
clear that they did not appreciate what was going on around them.
Many of them did not give evidence. They must have thought that those
who did, spoke on their behalf. It is clear from the record that they
did not understand how to cross-examine and what cross-examination
was all about.



The question is not
whether an indigent accused is entitled



to be provided by
the State through a system of legal aid at



his trial with legal
representation. We are concerned here



with the right to
legal representation - the right to be



informed. However
the ideal should be that every person



appearing in
Criminal courts should be represented by a



lawyer. This assures
a large measure of fairness. It is an



ideal we should all
aim to attain. Indigent accused would



then be entitled to
legal representation provided by the



State. I agree with
the sentiments expressed by Didcott, J.



in S v Khanvile
1988(3) 795 (N) at 801 to 818. I appreciate



why people charged
with criminal offences should be



represented by
lawyers. I appreciate why in Canada legal



aid is available to
those facing complex cases, people



without competence
in the conduct of their defences and the



poor. But Canada
has a well funded Legal Aid Society.



Canada has lawyers
to do the work. And if a judge decides



that he cannot
conduct a fair trial if the accused is not



represented by a
lawyer, legal and is granted.



15



I wish if one would
say:



"Not only these
precedents but also reason and reflection require us to recognise
that, in our adversary system of criminal justice, any person haled
into court who is too poor to hire a lawyer cannot be assured a fair
trial unless counsel is provided for him. This seems to us to be an
obvious truth. Governments, both state and federal, quite properly
spend vast sums of money to establish machinery to try defendants
accused of crime. Lawyers to prosecute are everywhere deemed
essential to protect the public's interest in an orderly society.
Similarly, there are few defendants charged with crime, few indeed,
who fail to hire the best lawyers they can get to prepare and
present their defences. That government hires lawyers to
prosecute, and defendants who have the money hire lawyers to
defence, are the strongest indications of the widespread belief that
lawyers in criminal courts are necessities, not luxuries. The right
of one charged with crime to counsel may not be deemed fundamental
and essential to fair trials in some countries, but it is in ours.
From the very beginning our state and national constitutions and laws
have laid great emphasis on procedural and substantive safeguards
designed to assure fair trials before impartial tribunals in which
every defendant stands equal before the law. This noble ideal cannot
be realised if the poor man charged with crime has to face his
accusers without a lawyer to assist him."



Per Black, J in
Gideon v Wainwright (1963) 372 US 335. (See also S v
Khanvile
1988 (3) SA 795 at 807 I - 808.



But, the United
States is an affluent Society. It's Bill of



16



Rights entitles
indigent accused to be assisted with their defences.



In the less
prosperous states legal aid schemes are not well funded. Only those
accused persons charged with serious offences can hope to receive
legal aid. However, the response from those who want to see equality
and fairness in criminal trials should not be that legal aid for all
accused is impossible. They should strive to work for entitlement to
legal representation for all perhaps not now but in the future.



More often than not
indigent accused are rushed to courts because the police have
obtained confessions before going to Court. It may be there that the
unfair trial started. When these people are in the custody of the
police more often than not determines whether an unrepresented
accused pleads guilty or not guilty.



Legal representation
for all is still a far off dream not because it is not the right
thing to do but because those who control the purse strings of State
tell us there is no money, governments cannot afford it. They may be
right but the ideal remains.



I agree with Mr
Kuny in his contention that in Namibia both in terms of the letter
and spirit of the law, an accused, being entitled to a fair trial,
must be afforded the opportunity to obtain legal representation of
his choice. See Article 12 (l)(e) of the Constitution, supra.
This



17



requires that the
judicial officer hearing the trial must inform an accused of his
right to representation unless it is apparent to him and for good
reason, that the accused, as stated above, is aware of his right. See
S v Bruwer, supra, at 308 - 309 and S v Mabaso,
1990(3) S.A. 185 at 204 C - J.



In this case the
failure to inform appellants of their right to legal representation
resulted in an irregularity which in the peculiar circumstances of
this case resulted in the appellants being unable to lead evidence
and to cross-examine effectively state witnesses. They could not be
expected to understand the presumption in section 85 of Act 4 of
1977. They were ignorant of court procedures. That was apparent
from the failure of most of the appellants to give evidence in their
own defence, to address the court at the end of defence evidence and
to submit or lead evidence in mitigation of sentence. The failure by
the Magistrate to inform appellants of their rights to a lawyer was
an irregularity which, in my view, led to a failure of justice. In
view of the manner in which the trial was conducted this
irregularity, standing by itself, is sufficient for purposes of
vitiating proceedings.



One of the
irregularities relied upon by the appellants to vitiate the
proceedings is that the trial Magistrate failed to explain to the
appellants the existence and implications of the presumption created
by section 85(2) of the Nature Conservation Ordinance 4 of 1975, as
amended. Section 85(2) reads:



18



"Whenever any
person performs an act and he would commit or have committed an
offence by performing that act if he had not been the holder of a
licence, registration permit, exemption, document, written permission
or written or other authority or power (hereinafter in this section
called the necessary authority) to perform such act, he shall, if
charged with the commission of such offence, be deemed not to have
been the holder of the necessary authority, unless the contrary is
proved."



The presumption
referred to above appears in the charge sheet where it is stated as
follows:



"That the
accused is guilty of contravention of section 26(1) read with section
1, 26(3), 85, 90 and annexure 3 of the Ordinance of Nature
Conservation 4/1975 as amended."



One has to read
section 85(2) to discover what the presumption is. The appellants
who, it is generally agreed, are unsophisticated, illiterate and
uneducated could not be expected to know of its existence by a mere
mention of section 85 on the chargesheet. And even if they had been
shown section 85(2) it would have meant nothing to them. Appellants
of this kind would need proper explanation of the import of the
presumption. And only a lawyer or the Magistrate could have given
that explanation. In this case the Magistrate did not explain to the
appellants the implications of the presumption. He did not tell them
what they had to do in order to meet the requirements of section
85(2).



19



Mr Kuny submitted
that a presumption of this nature was a sophisticated concept not
normally appreciated or understood by a lay person. It could in a
criminal case operate harshly against an accused who is
unrepresented. The magistrate ought to have fully explained it to the
appellants. He did not do it. I agree with Mr Kuny. In S v
Ntuli and Another
1967(3) SA 721 (N) at 722 F - G - James, J, as
he then was, appreciating the danger of unexplained presumptions said
this:



"Mr Combrink,
who appeared for the appellant, referred us to two cases, S v
Lanqo
, 1962 (1) SA 107 (N), and S v Moeketsi, 1965 (2)
P.H. H157, in both which it was said that it was desirable for the
court to warn an accused person who was undefended of the existence
of presumption set out in sec. 90 bis of the Act, so that the
accused person would not fail to give evidence to rebut that
presumption if he wished to do so. It is clear that both to the
desirability of a warning, but there is no fixed rule laying down
that this is an essential prerequisite to a conviction. It seems to
me that in cases where an accused has not been warned of the
presumption, it is the duty of the court to look at the evidence with
particular care to satisfy itself that the accused has not been
prejudiced by the fact that no warning has been given."



The appellants in
this case were unrepresented. It was the duty of the Magistrate to
explain to them the meaning and import of the presumption and the
shifting of the onus. Subsection (2) of section 85 places on the
appellants the onus of showing that they' hunted the giraffe because
they had a permit. How were appellants expected to know when the



20



Magistrate did not
draw appellants' attention to the presumption and its attendant
consequences. See S v Khumalo 1979 (4) SA 480 (TPD) at 483 H.
Failure to draw the attention of the appellants to the presumption
and to explain its implication is an irregularity. In the
circumstances of this case failure to explain the presumption leads
to the conclusion that the trial was not fair. And since there were
other rights about which appellants were never informed, it is safe
to conclude that failure to draw the attention of unrepresented
appellants to the presumption and its implications resulted in a
failure of justice. See S v Brown 1984 (3) SA 399 (KPA) at
401 H - I.



S v Shanaase
1972 (2) SA 410 (N) at 432 E.



S v Kekwana
1978 (2) SA 172 (NKA).



S v Cross,
1971 (2) SA 356 (RA) at 358 D - E.



It is not wise in
cases of this nature to assume that the accused did not suffer any
prejudice because the trial Magistrate did not rely on the
presumption and therefore his not warning the appellants could not
have prejudiced them. In this case the State did not produce or
adduce any evidence to prove that the appellants did not have the
necessary permit to hunt the giraffe. It is therefore proper to
assume that the State must have relied upon the operation of the
presumption to prove that the appellants were guilty. See S v
Khumalo
, 1979 (4) SA 480 (T) at 483 H., S v Mkhize, 1966
(4) SA 280 (N) at 282 A - C.



Mr Kuny contended
that the irregularity arising from failure



21



by the Magistrate
to draw the attention of appellants to the presumption in section
85(2) of the Ordinance was most material so as to taint the
proceedings and to militate against the appellants having a fair
trial. Therefore such an irregularity would result in setting aside
the proceedings. I agree. See S v Andrews 1982(2) SA 269 (NC)
at 277 B and the English Headnotes, S v Ntuli, 1967 (3) SA 721
(N) at 722 F - G.



There were a number
of other irregularities in the proceedings. The Magistrate did
explain the right of appellants to adduce evidence and entered that
in the record. However what he recorded was a bald statement:



"Accused rights
explained. Accused understands."



He equally failed to
write what - precisely it was he explained to the appellants about
their rights to cross-examine State witnesses or other appellants.
The record shows an entry which tersely says:



"Nature and
Purpose of cross-examination explained to the accused. Accused
understands."



He should have
recorded the nature of the explanation given to appellants. All that
he told them about cross-examination should have been written down.



It is difficult for
an appellate court to accept that the Magistrate explained fully to
the appellants the import of cross-examination. The terse statements
entered in the



22



record do not
suggest what it was that the Magistrate told the appellants. In this
case it is difficult to believe that the Magistrate explained fully
what cross-examination was all about because the record reveals that
appellants did not understand what they were expected to do during
cross-examination .



Appellants were not
informed of their right to make



submissions at the
close of the defence case. These



irregularities
prevented appellants from putting before the



court reliable and
comprehensive evidence. Because of this



a doubt is created
in the mind of the Appellate Court. One



would still want to
know whether appellants understood the



purpose of leading
evidence and cross-examining State



witnesses. Without
a precise record giving particulars of



the nature of
explanations made to the appellants it is



difficult to come to
the conclusion that the Magistrate



fully explained to
the appellants their rights. It is easy



to come to the view
that appellants failed to perform during



the proceedings
because the Magistrate did not tell them



fully what their
rights were and what they were expected to



do. One would like
to know whether appellants failed to



perform because they
were just not up to it on account of



their illiteracy and
other disadvantages. See S v Daniels



en Ander,
supra, at 317 A - E and S v Motaung 1980 (4) SA



131 (T) at 133 A -
B.



The cumulative
effect of all the above irregularities abrogated appellants' rights
to a fair trial. I agree with



23



Mr Kuny when he
argued that in the circumstances of this case it cannot be said, in
the absence of representation on their behalf, that all the evidence
which should have been placed before Court was in fact placed before
the Court or that State witnesses were properly cross-examined and
tested or that the cases of each of the appellants were properly
presented. See S v Shabancru, 1976 (3) SA 555 (A) at 558 F
where Jansen, J.A. remarked:



"The case
against the appellant on the merits certainly appears to be
formidable and to have fully justified the conviction. But, on the
other hand, it is impossible to say what effect a properly conducted
defence could have had on the ultimate result."



In the instant case
the importance of the above statement becomes more significant
because there was no credible evidence on the merits justifying
conviction. Mr Miller, for the respondent, argued every conceivable
point in support of conviction. He did the best he could for the
state. In the end, while not conceding, he appreciated the lack of
credible evidence and the seriousness of irregularities in this case.
The appeal against conviction must succeed.



There was an appeal
against sentence. In view of the conclusion to which the Court has
come on conviction, it is unnecessary to consider submissions of
counsel against or in support of sentence. The fines imposed by the
Magistrate were too severe for appellants who told the trial Court
that they had no money with which to pay fines. Only one



24



appellant indicated
that someone else would assist in paying his fine. The prosecutor
asked for a suspended sentence and for the two counts to be taken as
one for purposes of sentence. However the Magistrate did not take
into account the prosecutor's submissions. He should have. Because
the convictions have fallen away it is unnecessary to set aside
sentences except as a mere formality.



In the result the
appeal succeeds and both conviction and sentence are set aside.



E. DUMBUTSHENA,
ACTING JUDGE OF APPEAL











I agree







I. MAHOMED, CHIEF
JUSTICE



I agree



M. CHOMBA, ACTING
JUDGE OF APPEAL



F.M. CHOMBA, ACTING
JUDGE OF APPEAL