Case Summary: S v Kau
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Facts
- In
January 1992, a giraffe was hunted and killed at Nom-Tsoa in Grootfontein
and another was killed nearby;
- No one
saw anyone killing either giraffe;
- An
employee of the Ministry of Wildlife and Conservation and two companions
saw giraffe hoofs and footprints, followed them and came across a
partially skinned giraffe;
- There
were no people but there were knives, axes and spears;
- After
a while, some people arrived. They (the applicants) were interrogated (and
ultimately arrested) and some of them testified and made admissions
to what had happened to the giraffes;
- It was
on the strength of this evidence that the Magistrates’ Court relied on
when charging and convicting them on two counts of wrongfully
and illegally hunting protected game;
- They
all appealed to the High Court, where (although their admissions were
declared inadmissible) their convictions and sentences were upheld on
remaining evidence and their appeal was dismissed;
- They
appealed further to the Supreme Court.
Issues
One: Is the state obliged to provide very poor
accused persons with legal aid?
Two: Seeing as the High Court had declared the
admissions made by the applicants inadmissible, was the High Court right to
confirm their convictions and sentences on the strength of remaining evidence?
Rules
- Article 12(1) of the Constitution esp ss
12(1)(a)&(e);
- Section 115 of the Criminal Procedure Act, 51
of 1977.
Analysis
The court expressed surprise that, after finding that the
admissions made by the appellants had been inadmissible, the High Court had
still gone on to convict them on remaining evidence. This court could find no
criminal intent to satisfy itself that the appellants had indeed gone out
hunting the giraffes. Per Dumbutshena Aja, “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”.
Furthermore, in considering the matter of legal
representation, the court stated that its concern was not with the accused’s
entitlement thereto but, rather, their being informed of their entitlement
thereto:
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… 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 s 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 s
115 and/or the consequences flowing from the appellants revealing the
foundation of their defence (at p2 & 6).
Among other irregularities, instead of properly discharging
his duties under s115, the trial magistrate did not inform the accused that
they were not obliged to answer questions; instead, they were simply told that
“you may reveal the basis of your defence or remain silent if you wish”. For
this very reason alone, the trial was unfair.
Holding
The first issue was held in the affirmative, as
qualified in the foregoing analysis. The rights provided by Article 12(1)
of the Constitution, particularly ss12(1)(a)&(e); i.e. the rights to a fair
trial and to legal representation are entrenched and no deviation from them is
permissible.
It was held further that Section 115 of the Criminal
Procedure Act, 51 of 1977 obliges the presiding officer to ask questions
if it is not clear from an accused's plea explanation to what extent (s)he
denies or admits the issues raised in her/his plea and which issues are or are
not in dispute. The accused should be informed that (s)he is not obliged to
answer questions.
The second issue was held in the negative, also
as qualified in the foregoing analysis.
The appeal was upheld and both the convictions and sentences were set aside.🍎
