1 IN THE HIGH COURT OF SOUTH AFRICA [CAPE OF GOODHOPE PROVINCIAL DIVISION] REPORTABLE HIGH COURT REF. NO.: 04 03742 MAGISTRATE S SERIAL NO.: 30/04 CASE NO. LG 146/2004 In the matter between: THE STATE And CLIFFORD AMBROS ACCUSED REVIEW JUDGMENT DELIVERED ON 22 APRIL 2005 DLODLO, J 1) This matter came before me by way of automatic Review in terms of Section 302 read with Section 304 of the Criminal Procedure Act 51 of 1977 as amended. Upon reading the record I came to the conclusion that there is no evidence justifying a conviction in this matter. I consequently asked the magistrate to provide me with reasons for convicting the accused. It took time but the magistrate has responded. 2) The accused was charged with the contravention of Section 4(1) of Act 57 of 1959 (the stock theft Act). It was alleged by the State that on 9 June 2004 and at Saairivier, Prince Albert district, the accused unlawfully and intentionally trespassed on the kraal or the land surrounded with fence belonging to one Aron Muller with the intention to steal livestock therefrom.
2 3) Mr. Ambros elected to apply for legal aid but his application was refused. He was then forced to handle his own case. He pleaded guilty to the charge preferred against him. The magistrate proceeded to put questions to him in terms of Section 112(1) (b) Act 51 of 1977. The questioning went on thus: V: Verstaan U wat aan U verduidelik is? A: Ja. V: Pleit U vrywillig skuldig? A: Ja. V: Was U op of omtrent 9/06/2004 te of naby Siderivier, Prince Albert? A: Ja. V: Wat het U daar gedoen? A: Ek wou gaan hout maak en toe ek sien toe kom daar n wit bakkie opgery in die kamp in, toe het ek gestaan en kyk waarheen gaan die bakkie. Toe het die bakkie gaan staan en toe het die Meneer my voetspore gevolg tot daar waar ek staan. Toe vra hy wat soek ek op sy grond. Toe sê ek, ek soek n stukkie hout. Toe vat hy my saam en bel die polisie wat my toe kom haal het. V: Was U in n omheinde kamp? A: Ja. V: Is daar vee in die kamp? A: Ja, maar dit was nog ver van my af gewees. V: Was dit U doel om die vee daar te steel? A: Nee. V: Is daar n pad deur die grond? A: Net die plaas se pad. V: Het U enige reg of toestemming gehad om op die plaas of in die kamp te wees? A: Nee. V: Geweet U doen verkeerd en pleeg n misdaad? A: Ja. The magistrate was correctly not satisfied that Mr. Ambros admitted all the elements of the offence with which he was
3 charged. He accordingly in terms of Section 113 of Act 51 of 1977 entered a plea of Not Guilty. (4) The matter was tried on 9 September 2004. The prosecution led the evidence of Aron Muller, the farm owner. The gist of Mr. Muller s testimony can be summarized thus: Op 9/06/2004 was ek op my plaas Saairivier. Ek het in my bakkie op die plaas gery. Op n stadium het ek n onbekende persoon op die plaas opgemerk. Ek het die voetspore gevolg wat ek in die plaaspaadjie gesien het. Toe kry ek beskuldigde waar hy wegkruip agter n bos. Ek het tot by hom gegaan. Hy het gesê dat hy kom hout maak het. Hy het n bondel by gehad wat soos n spaar stel klere gelyk het. Waar ek hom gekry het is n kamp n veekamp. Dié kamp word per hek verkry. By my huis verby loop die pad deur Saairivier na die kamp Daar was daardie stadium so 120 skaap in kamp gewees Daar is hout in die rivierloop langs, maar beskuldigde het nie daarlangs geloop nie. Hy het in die rigting van die skaap geloop. Die skaap was so 500 tree van hom af op n rantjie. Daar is nie hout waarmee jy kan vuurmaak nie. Die beskuldigde het geen houtmaak gereedskap by hom gehad nie. Die spaar stel klere dui vir my daarop dat hy wou skaap steel. Want dan gaan hy met die skoon klere terug skema toe. Die skema is so 3km as ek moet skat van die kamp af. Daar loop nie n pad deur die veld nie. n Mens moet deur die veld stap soontoe. Dit is nie n normale plek waar mense hout maak nie. Niemand mag hout daar in die kamp maak nie. Daar word gereeld vee gesteel in die kamp. Die afgelope jaar was al seker 60-70 skaap daar geslag. Ek kom gereeld in die kamp. Amper elke dag.
4 (5) Section 4(1) of the stock theft Act provides that a person who in any manner enters any land enclosed on all sides with a sufficient fence or any kraal, shed, stable or other walled place with the intent to steal any stock or produce on such land or in such kraal, shed, stable or other walled place, commits an offence. Apart from other elements of this offence intention to steal stock or produce is to me the most important element. The Act further provides that if the accused was found proceeding along any road or thoroughfare traversing such land, the onus of proof is upon the state. However, if the accused was found elsewhere on the land or is found in an enclosed place, (as is the case in the instant case) the onus is upon the accused to prove that he had no intention to steal any such stock or produce. The accused person is required to discharge such onus by adducing prima facie evidence that shows absence of intent to steal. It would then become necessary for the state to establish beyond reasonable doubt that he in fact entered with the intent to steal (See R v Qoboka 1929 TPD 35). (6) I am of the view that the issue of shifting onus is no longer constitutionally permissible. My view is simply that the state bears the onus of proof beyond reasonable doubt. Even if the accused did bear the onus to prove prima facie that his presence in the farm camp was not coupled with intention to steal, his explanation that, he went there for purposes of firewood should have been enough in my view. The accused is clearly a rural person who resides next to the same farm. The rural people have no sophisticated ways of cooking. They have no electric power. They make fire on the ground and/or on stoves in order to do their cooking. For fire making the rural people need
5 firewood. They collect firewood from their surroundings. (7) It is strange that the Court allowed Mr. Muller to express an opinion that because the accused had what he called spaar stel klere that in itself showed he intended to steal the sheep and would come out of the farm wearing different clothes. It was probably unknown to the trial court that when rural people go out to collect firewood, they take along some old clothes which are used to provide cushion on their heads where the load of firewood is normally placed for conveyance to their homes. Mr. Ambros in the instant matter explained to the court during crossexamination by the prosecution that the so called ekstra stel klere was his 2 baadjies which he would use om die sak hout op my kop te sit. He was questioned about why he did not have implements to be used in collecting firewood. I accept the prosecution had in mind things like cane knife or an axe. (8) Mr. Ambros answer in my view cannot be faulted because he answered Nee, Meneer, ons breek sommer die hout wat droog is. It is also common knowledge that dry wood is just broken away from the branches when firewood is collected. In order to collect firewood, you do not need implements like cane knife or an axe. The reason is simple and that is that the firewood is dry and is thus easy to break. The fire is only made with dry wood. (9) In my view there are no good reasons advanced by the trial court justifying its rejection of this version of Mr. Ambros. My view is that the trial court probably did not understand the version because it probably lacked knowledge of how rural people live. The state did not present evidence of such a nature that it can
6 be said it succeeded to prove the guilt of Mr. Ambros beyond reasonable doubt. The onus resting on the state in a criminal matter has been pronounced upon in countless decisions of our Courts. In S v Jaffer 1988(2) SA 84 (C) Tebbut J stated the following relevant legal principle: It is not, however, the correct approach in a criminal case to weigh up the State s version, particularly where it is given by a single witness, against the version of the accused and then to accept or reject one or the other on the probabilities The test is, and remains, whether there is a reasonable possibility that the appellant s evidence may be true. In applying that test one must also remember that the Court does not have to believe her story, still less has it to believe it in all its details. It is sufficient if it thinks there is a reasonable possibility that it may be substantially true. (R v M 1946 AD 1023 at 1027) See further S v Kubheka 1982(1) SA 534 (W) at 537 F-H; S v Munyai 1986(4) SA 712 (V) at 715G. (10) Another aspect that deserves my attention in this matter is that when Mr. Ambros s rights to legal representation were explained to him he elected to apply to the Legal Aid Board for representation. On 19 August 2004 all that appears on record is the following: Regshulp geweier. Beskuldigde deel mee dat hy sy eie verhoor gaan behartig. SA stel aanklag aan beskuldigde. (11) The matter was proceeded with without much ado. Certainly Mr. Ambros was owed an explanation by the Legal Aid
7 Board as to why his application was unsuccessful. This does not appear on record. Nor does it appear that the magistrate concerned himself with it. Mr. Ambros was clearly denied his constitutional right to a fair trial. Section 35(3) (g) of the Constitution provides that the right to a fair trial includes the right to have a legal practitioner assigned to the accused person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly. The position is that the state has chosen to carry out its obligations in this regard through the Legal Aid Board Act 22 of 1969. By establishing and funding the Legal Aid Board the state has not divested itself of its constitutional obligation to provide a legal practitioner, at its expense, if substantial injustice would otherwise result. That constitutional obligation rests on the state. A refusal by the Legal Aid Board to provide legal representation does not in all the cases absolve the state of its constitutional duty. If that duty exists in a particular case, then a refusal by the Legal Aid Board to provide legal representation does not put an end to the corresponding right. (12)In this case Mr. Ambros did not receive legal representation at state expense. The question is whether he had a right to such representation. The answer turns on the question whether substantial injustice would otherwise result. In S v Vermaas; S v Du Plessis 1995 (2) 292; 1995(7) BCLR 851; 1995(2) SACR 125 (CC), Didcott J described the matters which the Court should consider in deciding whether substantial injustice would otherwise result by referring to the following aspects: i) the ramifications of the case and their complexity or simplicity;
8 ii) iii) iv) the aptitude or inaptitude of the accused person to fend for himself or herself in a matter of those dimensions; how grave the consequences of a conviction look; any other factors that need to be evaluated in the determination of the likelihood or unlikelihood that, if the trial were to proceed without a lawyer for the defence, the result would be substantial injustice. (13) In my view this was not an easy matter for Mr. Ambros to handle on his own. He was plainly unable to obtain representation at his own expense. The main question in issue in the trial was (in my view) whether or not he had the requisite intention. It certainly required skilled cross-examination and proper presentation of the defence case. Mr. Ambros was a person of very limited or no education at all. He would not be able to undertake an effective cross-examination or to present his case effectively. In the event, he was sentenced to undergo imprisonment for twelve (12) months without an option of a fine. I do not think there can be doubt that a trial under these circumstances created the very likelihood that if it proceeded without a lawyer for the defence, the result would be substantial injustice. I do not thereby criticize the manner in which the magistrate conducted the trial. I merely make the point that effective representation is a necessity for a fair trial under circumstances such as these. The constitution created a general right to a fair trial (See Shabalala and Others v Attorney General, Transvaal and Another 1996(1) SA 725; 1995(2) SACR 761; 1995(12) BCLR 1593 (CC) at (29)). One of the explicitly specified elements of that right to a fair trial is the right under Section 35(3) (g) to a legal practitioner at state expense if
9 substantial injustice would otherwise result. 14) In this matter Mr. Ambros wisely wished to have legal representation. The Legal Aid Board refused to provide it. It does not appear from the record that Mr. Ambros was given a document which spells out that he had a right to appeal to the Director of the Legal Aid Board against the refusal of legal Aid (as provided in the Legal Aid Guide published in terms of Section 3A of the Legal Aid Act). Nor does it appear that Mr. Ambros was told that he had a right to ask the Court to order that legal representation be provided at state expense. That being so at the very least a doubt should have arisen in the mind of the magistrate as to whether Mr. Ambros was aware that, despite the refusal by the legal aid officer, he had other avenues open to him in order to obtain legal representation at state expense. That right is expressly acknowledged and regulated by Section 3B of the Legal Aid Act (also in the printed form). It is my view that in circumstances such as these, the presiding officer should inform the accused person: a) That he/she has a right to legal representation at state expense if substantial injustice would otherwise result. b) That he/she has a right to appeal to the Director of the Legal Aid Board against the refusal of legal aid by the legal aid officer, and how to exercise that right. c) That if the Legal Aid Board refuses to provide legal representation, he/she may ask the Court to make an order that he/she be provided with legal representation at state
10 expense (the procedure and matters to have regard to, are set out in Section 3B of the Legal Aid Act). In the instant matter the steps set out supra were not taken. The result was that Mr. Ambros abandoned his efforts to obtain legal representation and represented himself. My view is that he was not able to do so effectively. He thus did not receive the fair trial to which he was constitutionally entitled. Undoubtedly this is an irregularity not capable of being condoned. 15) The magistrate has asked that if the present conviction cannot stand, I must at least pronounce Mr. Ambros guilty of contravening Section 1(1)(a) of Act 6 of 1959 (trespass) because in terms of Section 270 of Act 51 of 1977 trespass is a competent verdict in the matter under discussion. I do not agree. Nowhere does it appear on record that Mr. Ambros was warned about the applicability of Section 1(1) (a) Act 6 of 1959. He was in fact never warned about any competent verdict for that matter. In the circumstances, the conviction of Mr. Ambros cannot stand. His conviction is hereby set aside. In its place the following is substituted The accused is found not guilty and he is discharged. DLODLO, J I agree and it is so ordered. HLOPHE, JP