kau and 15 others versus the state

8/8/2019 Kau and 15 others versus The State

1/25

IN THE SUPREME COURT OF NAMIBIAIn the matter between

CASE NO. SA 1/93

1. TOBIAS KAU2 . AIEL XAO KGAO3. KLEINBOOI STICHE4. NC EMSJE XOSJE5. KGAO TSASCJE6. N#AMSHE7. XOSJE NEMSJE8. N#AN#I CWI9. XGAO CWI10. CWI T#IT#E11. ASSER N#AO12. MOSES TSEMKXAO GAO13. CWI XAU14. XGAU CIUAE15. CWI N#OUDA16. XAO CIQAEversusTHE STATE

FIRSTSECONDTHIRD

FOURTHFIFTHSIXTH

SEVENTHEIGHTHNINTHTENTH

ELEVENTHTWELFTH

THIRTEENTHFOURTEENTHFIFTEENTHSIXTEENTH

APPELLANTAPPELLANTAPPELLANTAPPELLANTAPPELLANTAPPELLANTAPPELLANTAPPELLANTAPPELLANTAPPELLANTAPPELLANTAPPELLANTAPPELLANTAPPELLANTAPPELLANTAPPELLANT

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

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

APPEAL JUDGMENTDUMBUTSHENA, A.J.A.: All sixteen appellants were charged


2/25

and convicted by the Magistrates* Court sitting at Tsumkweof two counts of wrongfully and illegally hunting speciallyprotected game , namely Giraffe, in contravention of section26(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 apermit granted by the Executive Committee shall atany 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 andkilling a giraffe on 2 January, 1992 in the Nam Tsoa Regionin the district of Grootfontein. Appellants numbers 1, 2,3, 4, 5, 7, 8, 9, 1 1, 13, 14 and 16 were found guilty ofhunting and killing a giraffe on 7 January 1992 at Nam TsoaRegion. A few of the appellants namely 2 , 4, 9, 1 1, 13 and14 were convicted on both counts.

They were sentenced as follows: Appellants numbers 1, 3, 5,6, 7, 8, 1 0, 19, 15 and 16, who were convicted on count oneonly, were each sentenced to a fine of Rl 000,00 or indefault of payment, one years' imprisonment. In additioneach one of them was sentenced to 6 months imprisonmentwholly suspended for 4 years on appropriate conditions.Appellants 2, 4, 9, 11 , 13 and 1 4, that is those convictedon both counts, were each sentenced to a fine of R2 00 0, orin default of payment, 20 months imprisonment. In additioneach appellant was sentenced to 9 months' imprisonmentwholly suspended for 4 years on appropriate conditions.


3/25


4/25

who were riding horses while they were chasing thegiraffe. Jafer Katuuo took down the accused 1; 2;3; 4; 13 and 14 names. Accused 3 was handed overto me for interrogation. He also confirmed thatthe two horses were used to chase and kill thegiraffe. The other two horses were used totransport the meat back and forth from home. Fromthe spot we gave accused 1; 2; 3; 4; 13 and 14 alift back to Nam-Tsoa where we continued withinvestigation. With the further investigation weestablished 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 theykilled the first giraffe. The second giraffewhich was half skinned was killed by accused andthey said they killed the second Giraffe."

I have reproduced the above evidence in order to show thekind of evidence relied upon by the Magistrate to convictthe appellants. Appellants were interrogated by Kaece Kxa o,a person in authority in the Ministry of Wildlife andConservation and in the District of Grootfontein. The trialMagistrate never considered whether the admissions allegedlymade to him were made freely and voluntarily. The issue ofvoluntariness of the admissions was raised and specificallyreferred to in paragraph 11 of the amended Notice of Appeal.But the trial Magistrate did not comment in his reasons forconvicting appellants on what was referred to in paragraph11 of the amended Notice of Appeal.

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

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


5/25

established' on 'further investigations', suchtestimony is inadmissible. Insofar as the LearnedMagistrate relied on admissions allegedly made toMr Ka o, their admissibility will depend on whetherthe provisions of sections 217 and 219A of theCriminal Procedure Act were complied with ...

It is clear from the record and the Magistrate'sreasons that he paid no attention whatsoever tothe question of admissibility. The allegedadmissions were not admissions of all the elementsof the offence and were not unequivocal admissionsof guilt. Section 219 A is thus applicable, whichrequires proof by the State beyond reasonabledoubt that the admissions were freely andvoluntarily made - in the sense that it had notbeen induced by any promise or threat proceedingfrom 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 theState to prove that the admissions made by the appellantswere made freely and voluntarily. This was not done. TheCourt a quo found that the Magistrate had misdirectedhimself on this point. And having come to the view that theadmissions did not cover all the elements of the offence, itis more than surprising that the Court a quo confirmed theconvictions.

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


6/25

6whe n it held that appellants 1 plea explanation to the effectthat: "(+)hey were instructed by Uijo the headman to huntand kill the giraffe" was an admission and that " ( + )hisdefence included by the clearest implication, the admissionsthat they did hunt and did kill the giraffes as alleged.The defence was repeated in cross-examination by variousaccused when CWIT#IT#E testified but the said witnessvehemently denied the allegation."

Was the Court a quo right? It appears to me that thestatement that was repeated by all appellants in their pleaexplanation: "I was instructed by /Uijo to hunt and killthe giraffe." was not an admission of guilt. The appellantswere saying they killed the giraffe because they hadreceived 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. Theyapproached the headman. He gave them permission. That isthe reason, in my view, why appellant number 10 , accused 10at the trial, testified : "Witness said we should go andhunt giraffes and pay his grass and water with meat. We andthe witness are all guilty. If he doesn't have money heshould go to prison with us . He is the owner of the place -we wouldn't have hunted without his permission." Why didappellant number 10 want the headman to go to prison withthem? It was because he had given them permission to huntand kill the giraffe. The plea explanation is notinconsistent with appellant's pleas of not guilty.


7/25

7I agree with Mr Kuny in his submission that the appellantspleaded not guilty and in support of their pleas indicatedthat the headman had instructed them "to hunt and killgiraffe." This plea explanation certainly suggests thatthey believed that, by reason of the instructions, theymight have been legally permitted to hunt the giraffe,having been authorised and instructed to do so by theheadman (and therefore, that they had no mens rea) .

If there was a doubt in the mind of the trial Magistrate asto whether the plea explanation meant that the appellantswere merely admitting the offence, he should, in my view,have cleared that up by asking appropriate questions. Hedid not. In view of the fact that appellants were notlegally represented, failure to reconcile appellants' pleaswith their plea explanations must have created some doubt inthe mind of the Magistrate. The Magistrate should havesatisfied himself as to what they meant instead ofconcluding that the plea explanation was an admission. SeeS v Daniels en Ander 1983(3) SA 275 (A) at 300 B.

It is clear from the evidence on the record that there wasno evidence justifying the conviction of appellants on countone.

The appellants were each charged individually. There was nocommon purpose alleged or proved. The evidence did notestablish what each appellant did or what act each hadcarried out in the commission of the offences. And in viewof what has been said above with regard to admissions there


8/25

8was equally not sufficient evidence to prove thatappellants, that i s, on the merits, hunted a speciallyprotected giraffe without a permit or the authority of theheadman.

I have dealt above with the conviction of the appellantsbased, as it wa s, on the merits or evidence adduced by theState. It is clear that there is very little or no evidenceon the record to sustain the convictions.

The main contention in this appeal was that because theappellants were unrepresented accused the trial Magistratehad failed in his judicial duty to inform the appellants oftheir right to legal representation and the many otherrights they should have been informed about and that hefailed to exercise that duty. The Magistrate's failure toexplain or inform appellants of their rights is clearlytabulated in the Notice of Application for Leave to Appealsettled by Mr Kuny who appeared for the appellants with MrBotes. The grounds of appeal on irregularities were set outas follows:

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

(a) that the Magistrate's failure to inform theaforesaid 16 Applicants that they wereentitled to legal representation, was anirregularity of such a nature as toconstitute a fatal irregularity whichwarranted the upholding of the appeal for thesetting aside of the conviction and sentencesimposed;


9/25

9(b) that the learned Magistrate's failure to

explain fully to the 16 Applicants theirrights in terms of Section 114 of Act 51 of1977 , was an irregularity of such a nature asto warrant the setting aside of theconvictions and sentence imposed;

(c) that the trial Magistrate failed to explainto the Applicants the existence andimplication of the presumption created bySection 85 of the Ordinance 4 of 1975, asamended , was an irregularity of such a natureas to warrant the setting aside of theconviction and sentence imposed;

(d) that the Magistrate's failure to explain theApplicants right of cross-examination fullyto them constituted an irregularity of sucha nature as to warrant the setting aside ofthe convictions and sentence imposed.

Before dealing with the argument of counsel it is importantto set out the approach adopted by the trial Magistrate whenhe dealt with appellants' rights. He did not inform theappellants of their right to legal representation. I shalldeal with this ground of appeal later in this judgment.After the appellants had pleaded he said to them: "You mayreveal the basis of your defence or remain silent if youwish." Section 115 of 51 of 1977 obliges the PresidingOfficer to ask questions if it is not clear from accused'splea explanation to what extent he denies or admits theissues raised in his plea and which issues are or are not indispute. The accused should be informed that he is notobliged to answer questions. In the instant case theappellants were not asked questions nor were they informedthat they were not obliged to answer questions. There wasa bare assertion: "You may reveal the basis of your defence


10/25

10or remain silent if you wish". The appellants were toldwhat to do and the Magistrate recorded his instructionswithout sufficient particularity, to enable a judgment to bemade as to the adequacy of the explanation. See S v Daniels1983(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 frombeing comprehensively and reliably placed before the Court,thereby raising doubt as to the correctness of theconviction, leads to a failure of justice. The failure tofollow the procedures laid down in section 115 of Act 51 of1977 as amended in this case resulted in a failure ofjustice because the Magistrate did not explain theimplications of section 115 and/or the consequences flowingfrom the appellants revealing the foundation of theirdefence. See S v Evans 1981 (4) SA 52 (C); English Headnotepart of which reads:

"The Court has a duty to inform the accused at thestage when he indicates the basis of his defencethat he is not obliged to answer questions.Failure to comply therewith is an irregularity inthe proceedings. The exact manner in which thisexplanation is made to the accused is notimportant. However, it must appear from therecord that his rights were explained.to him; insuch a manner and with sufficient particularitythat it can be judged whether the explanation wassufficient. The annotation "rights explained"would not be sufficient.

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


11/25

11statement which indicates the basis of yourdefence? You do not have to make a declaration.The court is in any event entitled to question youto establish what the points of dispute are, butyou do not have to reply thereto."

This was not done. The trial of appellants was not for thisreason alone fair. In this appeal Mr Kuny contended thatthe Magistrate's failure to inform the appellants that theywere entitled to legal representation was an irregularitywhich vitiates the conviction.

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

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

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


12/25

12people are entitled t o be defended by a legal practitionerof their choice. And accused are not to be compelled togive testimony against themselves or their spouses.

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

In Namibia the right to be defended by a lawyer of one'schoice is a constitutional right. When the trial Magistratefailed to inform the appellants of this right he deprivedthem of their constitutional right. Because the right isgiven to the people by the Constitution it is the duty ofjudicial officers to inform those that appear before them oftheir right to representation. There, of course, will beexceptional cases. A lawyer who appears before a judicialofficer is expected to know his right to legalrepresentation. There are many such other people, educatedand knowledgeable who need not be informed. If they do notknow, they must be informed,

It is also important to note what the Learned JudgePresident, 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 ofthe concept of a "fair trial" in Namibian lawdiffers from that of the law in South Africa. Iam also mindful of the fact that reference in ourConstitution to a fair trial forms part of theBill of Rights and must therefore be given a wideand liberal interpretation. However, I fail tosee how it can be said, even against this


13/25

iniinufnuimnm


14/25

13background, that a trial will be less fair if aperson who knows that it is his right to belegally represented, is not informed of that fact.Whether the fact that an accused was not informedof his right to be legally represented, resultedin a failure of justice, is, as in most otherinstances where a failure of justice is alleged,a question of fact."

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

"I am also mindful of the fact that reference inour Constitution to a fair trial forms part of theBill of Rights and must therefore be given a wideand liberal interpretation. However, I fail tosee how it can be said, even against thisbackground, that a trial will be less fair if aperson who knows that it is his right to belegally represented, is not informed of thatfact."

But in the exercise of his discretion the judicial officermay decide not to inform a lawyer who appears before him ofhis right to legal representation because he ought to knowit. In this respect there is no difference in the practiceused 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


15/25

14be informed of their right to legal representation. It iscommon 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 notappreciate what was going on around them. Many of them didnot give evidence. They must have thought that those whodid, spoke on their behalf. It is clear from the recordthat they did not understand how to cross-examine and whatcross-examination was all about.

The question is not whether an indigent accused is entitledto be provided by the State through a system of legal aid athis trial with legal representation. We are concerned herewith the right to legal representation - the right to beinformed. However the ideal should be that every personappearing in Criminal courts should be represented by alawyer. This assures a large measure of fairness. It is anideal we should all aim to attain. Indigent accused wouldthen be entitled to legal representation provided by theState. I agree with the sentiments expressed by Didcott, J.in S v Khanvile 1988(3) 795 (N) at 801 to 818. I appreciatewhy people charged with criminal offences should berepresented by lawyers. I appreciate why in Canada legalaid is available to those facing complex cases, peoplewithout competence in the conduct of their defences and thepoor. But Canada has a well funded Legal Aid Society.Canada has lawyers to do the work. And if a judge decidesthat he cannot conduct a fair trial if the accused is notrepresented by a lawyer, legal and is granted.


16/25

15I wish if one would say:

"Not only these precedents but also reason andreflection require us to recognise that, in ouradversary system of criminal justice, any personhaled into court who is too poor to hire a lawyercannot be assured a fair trial unless counsel isprovided for him. This seems to us to be anobvious truth. Governments, both state andfederal, quite properly spend vast sums of moneyto establish machinery to try defendants accusedof crime. Lawyers to prosecute are everywheredeemed essential to protect the public's interestin an orderly society. Similarly, there are fewdefendants charged with crime, few indeed, whofail to hire the best lawyers they can get toprepare and present their defences. Thatgovernment hires lawyers to prosecute, anddefendants who have the money hire lawyers todefence, are the strongest indications of thewidespread belief that lawyers in criminal courtsare necessities, not luxuries. The right of onecharged with crime to counsel may not be deemedfundamental and essential to fair trials in somecountries, but it is in ours. From the verybeginning our state and national constitutions andlaws have laid great emphasis on procedural andsubstantive safeguards designed to assure fairtrials before impartial tribunals in which everydefendant stands equal before the law. This nobleideal cannot be realised if the poor man chargedwith crime has to face his accusers without alawyer to assist him."

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

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


17/25

16Rights entitles indigent accused to be assisted with theirdefences.

In the less prosperous states legal aid schemes are not wellfunded. Only those accused persons charged with seriousoffences can hope to receive legal aid. However, theresponse from those who want to see equality and fairness incriminal trials should not be that legal aid for all accusedis impossible. They should strive to work for entitlementto legal representation for all perhaps not now but in thefuture.

More often than not indigent accused are rushed to courtsbecause the police have obtained confessions before going toCourt. It may be there that the unfair trial started. Whenthese people are in the custody of the police more oftenthan not determines whether an unrepresented accused pleadsguilty or not guilty.

Legal representation for all is still a far off dream notbecause it is not the right thing to do but because thosewho control the purse strings of State tell us there is nomoney, governments cannot afford it. They may be right butthe ideal remains.

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


18/25

17requires that the judicial officer hearing the trial mustinform an accused of his right to representation unless itis apparent t o him and for good reason, that the accused, asstated above, is aware of his right. See S v Bruwer, supra,at 30 8 - 309 and S v Mabaso, 1990(3) S.A. 185 at 204 C - J.

In this case the failure to inform appellants of their rightto legal representation resulted in an irregularity which inthe peculiar circumstances of this case resulted in theappellants being unable to lead evidence and to cross-examine effectively state witnesses. They could not beexpected t o understand the presumption in section 85 of Act4 of 1977. They were ignorant of court procedures. Thatwas apparent from the failure of most of the appellants togive evidence in their own defence, to address the court atthe end of defence evidence and to submit or lead evidencein mitigation of sentence. The failure by the Magistrate toinform appellants of their rights to a lawyer was anirregularity which, in my view, led to a failure of justice.In view of the manner in which the trial was conducted thisirregularity, standing by itself, is sufficient for purposesof vitiating proceedings.

One of the irregularities relied upon by the appellants tovitiate the proceedings is that the trial Magistrate failedto explain to the appellants the existence and implicationsof the presumption created by section 85(2) of the NatureConservation Ordinance 4 of 1975, as amended. Section 85(2)reads:


19/25

18"Whenever any person performs an act and he wouldcommit or have committed an offence by performingthat act if he had not been the holder of alicence, registration perm it, exemption, document,written permission or written or other authorityor power (hereinafter in this section called thenecessary authority) to perform such act, heshall, if charged with the commission of suchoffence, be deemed not to have been the holder ofthe necessary authority, unless the contrary isproved."

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

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

One has to read section 85(2) to discover what thepresumption i s. The appellants wh o, it is generally agreed,are unsophisticated, illiterate and uneducated could not beexpected to know of its existence by a mere mention ofsection 85 on the chargesheet. And even if they had beenshown section 85(2) it would have meant nothing to them.Appellants of this kind would need proper explanation of theimport of the presumption. And only a lawyer or theMagistrate could have given that explanation. In this casethe Magistrate did not explain to the appellants theimplications of the presumption. He did not tell them whatthey had to do in order to meet the requirements of section85(2).


20/25

19Mr Kuny submitted that a presumption of this nature was asophisticated concept not normally appreciated or understoodby a lay person. It could in a criminal case operateharshly against an accused who is unrepresented. Themagistrate ought to have fully explained it to theappellants. He did not do it. I agree with Mr Kuny. In Sv Ntuli and Another 1967(3) SA 721 (N) at 722 F - G - James,J, as he then wa s, appreciating the danger of unexplainedpresumptions said this:

"Mr Combrink, who appeared for the appellant,referred us to two cases, S v Lanqo, 1962 (1) SA107 (N), and S v Moeketsi, 1965 (2) P.H. H157, inboth which it was said that it was desirable forthe court to warn an accused person who wasundefended of the existence of presumption set outin sec. 90 bis of the Act, so that the accusedperson would not fail to give evidence to rebutthat presumption if he wished to do so. It isclear that both to the desirability of a warning,but there is no fixed rule laying down that thisis an essential prerequisite to a conviction. Itseems to me that in cases where an accused has notbeen warned of the presumption, it is the duty ofthe court to look at the evidence with particularcare to satisfy itself that the accused has notbeen prejudiced by the fact that no warning hasbeen given."

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


21/25


22/25

21by the Magistrate to draw the attention of appellants to thepresumption in section 85(2) of the Ordinance was mostmaterial so as to taint the proceedings and to militateagainst the appellants having a fair trial. Therefore suchan irregularity would result in setting aside theproceedings. I agree. See S v Andrews 1982(2) SA 269 (NC)at 277 B and the English Headnotes, S v Ntuli, 1967 (3) SA721 (N) at 722 F - G.

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

"Accused rights explained. Accused understands."

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

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

He should have recorded the nature of the explanation givento appellants. All that he told them about cros s-examination should have been written down.

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


23/25

22record do not suggest what it was that the Magistrate toldthe appellants. In this case it is difficult to believethat the Magistrate explained fully what cross-examinationwas all about because the record reveals that appellants didnot understand what they were expected to do during cross-examination .

Appellants were not informed of their right to makesubmissions at the close of the defence case. Theseirregularities prevented appellants from putting before thecourt reliable and comprehensive evidence. Because of thisa doubt is created in the mind of the Appellate Court. Onewould still want to know whether appellants understood thepurpose of leading evidence and cross-examining Statewitnesses. Without a precise record giving particulars ofthe nature of explanations made to the appellants it isdifficult to come to the conclusion that the Magistratefully explained to the appellants their rights. It is easyto come to the view that appellants failed to perform duringthe proceedings because the Magistrate did not tell themfully what their rights were and what they were expected todo. One would like to know whether appellants failed toperform because they were just not up to it on account oftheir illiteracy and other disadvantages. See S v Danielsen Ander, supra, at 317 A - E and S v Motaung 1980 (4) SA131 (T) at 133 A - B.

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


24/25

23Mr Kuny when he argued that in the circumstances of thiscase it cannot be said, in the absence of representation ontheir behalf, that all the evidence which should have beenplaced before Court was in fact placed before the Court orthat State witnesses were properly cross-examined and testedor that the cases of each of the appellants were properlypresented. See S v Shabancru, 1976 (3) SA 555 (A) at 558 Fwhere Jansen, J.A. remarked:

"The case against the appellant on the meritscertainly appears to be formidable and to havefully justified the conviction. But, on the otherhand, it is impossible to say what effect aproperly conducted defence could have had on theultimate result."

In the instant case the importance of the above statementbecomes more significant because there was no credibleevidence on the merits justifying conviction. Mr Miller,for the respondent, argued every conceivable point insupport of conviction. He did the best he could for thestate. In the end, while not conceding, he appreciated thelack of credible evidence and the seriousness ofirregularities in this case. The appeal against convictionmust succeed.

There was an appeal against sentence. In view of theconclusion to which the Court has come on conviction, it isunnecessary to consider submissions of counsel against or insupport of sentence. The fines imposed by the Magistratewere too severe for appellants who told the trial Court thatthey had no money with which to pay fines. Only one


25/25

24appellant indicated that someone else would assist in payinghis fine. The prosecutor asked for a suspended sentence andfor the two counts to be taken as one for purposes ofsentence. However the Magistrate did not take into accountthe prosecutor's submissions. He should have. Because theconvictions have fallen away it is unnecessary to set asidesentences except as a mere formality.

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

E. DUMBUTSHENA, ACTING JUDGE OF APPEAL

I agree

I. MAHOMED, CHIEF JUSTICE

I agree

M. CHOMBA, ACTING JUDGE OF APPEAL.M. CHOMBA, ACTING JUDGE OF APPEAL

kau and 15 others versus the state

Documents