The appellants appealed their convictions to the Supreme Court. The grounds for the appeal were that the admissions made to Mr Kao of the Ministry of Wildlife and Conservation were inadmissible for not being made freely and voluntarily, with which the High Court agreed. The onus was on the state to prove beyond a reasonable doubt the admissions made to them and in their plea explanations were made freely and voluntarily. Furthermore, admissions are to cover all the elements of the offence. The accused indicated that they were instructed by their headman to kill the giraffe, so it was for the court to determine whether this amounted to an admission. The most important determination of the appeal was whether the trial magistrate failed to inform the accused of their rights to legal representation, and other rights, during their trial as they were unrepresented, and which was his duty to do so. The appellants argued that this constituted a fatal irregularity that would set aside the convictions and sentences.
Country
Court
Type of court
Seat of court
Windhoek
Court jurisdiction
Date of opinion
1993
Abstract
Language of document
English
Reference number
[1993] NASC 2 (15 October 1993)
Charges
Wrongfully and illegally hunted 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, which states that, "No person other than the lawful holder of a permit granted by the Executive Committee shall at any time hunt any specially protected game."
Species
Transnational
No
Decision
The appeal court held that it was clear from the record that there was no evidence justifying a conviction on count 1, as the admission upon which the Magistrate relied was not given freely and voluntarily; did not speak to all elements of the offence; and the accused lacked intention to commit the offence. The Magistrate failed to perform his duty to inform the accused of their right to legal representation, as well as other rights, such as the right not to self-incriminate. The proceedings were therefore set aside as the irregularity was held to be so fatal as it affected their right to a fair trial. The convictions and sentences were set aside.
Appealed
Yes
Penalty
Conviction and sentence were set aside.
Court cases cited
S v Bruwer 1993(2) SACR 306 (Nm)
S v Rudman 1992(1) SA 434 (AD)
S v Khanvile 1988(3) 795 (N)
S v Brown 1984 (3) SA 399 (KPA0)
S v Daniels en Ander 1983(3) SA 275 (A)
S v Daniels 1983(3) SA 275 (A)
S v Andrews 1982(2) SA 269 (NC)
S v Evans 1981 (4) SA 52 (C)
S v Motaung 1980 (4) SA 131 (T)
S v Khumalo 1979 (4) SA 480 (TPD)
Legislation cited
Nature Conservation Ordinance, No. 4 of 1975
Criminal Procedure Act
Text and analysis