Die spaar stel klere dui vir my daarop dat hy wou skaap steel by HC120913004735

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                 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
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       intention to steal livestock therefrom.


     (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.”
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  The magistrate was correctly not satisfied that Mr. Ambros admitted
  all the elements of the offence with which he was 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
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   daar geslag. Ek kom gereeld in die kamp. Amper elke dag.”


 (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
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   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 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 cross-examination 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
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      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 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”.
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(11) The matter was proceeded with without much ado. Certainly Mr.
   Ambros was owed an explanation by the Legal Aid 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
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   otherwise result by referring to the following aspects:
   (i)     the ramifications of the case and their complexity or
           simplicity;
   (ii)    the aptitude or inaptitude of the accused person to fend for
           himself or herself in a matter of those dimensions;
   (iii)   how grave the consequences of a conviction look;
   (iv)    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;
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      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
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
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            representation, he/she may ask the Court to make an order
            that he/she be provided with legal representation at state
            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
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