University of Botswana Law Journal - PULP

108 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
unfavourable onus is placed on an accused. The Court noted that in such a
case, the judicial officer should “explain to the accused in clear terms that to
escape conviction he has to prove certain matters and he should fully explain
what these matters are. In other words, the accused should be given fair notice
of any issues not stated in or apparent from the substantive charge.” 109 In the
Court’s view, failure to inform the accused may prejudice her in the conduct
of her defence. In the circumstances, the Court felt compelled to set aside the
conviction.
The dearth of authorities in this area presents a perfect opportunity to
engage in some comparative analysis. The Namibian case of S v Kau and
Others 110 presents a crystal exemplification of the duty of the judicial officer
in bringing the purport and effect of an unfavourable presumption to the
attention of the unrepresented accused. In that case, sixteen appellants all
illiterate, were charged and convicted of the offence of wrongfully and
illegally hunting specially protected game. The legislation proscribing this
conduct provided that no person other than the lawful holder of a licence shall
hunt specially protected game. 111 On appeal, the appellants argued among
other things, that the trial magistrate erred in failing to explain the existence
and implications of the presumption created by section 85(2) of the Nature
Conservation Ordinance. 112 The section imposed an onus on the appellants
(then accused) to prove that they had a licence to hunt. The Supreme Court
held that the appellants being illiterate were not expected to know of the
provision merely by its mention on the charge sheet. The appellants, therefore,
required a proper explanation of the import of the provision. In the Court’s
view, only a lawyer or magistrate could make such an explanation. The Court
held that as the accused were unrepresented, the magistrate had a duty to
explain the provision and the shifting of the onus. Failure to explain the
presumption was held to amount to an irregularity, thereby rendering the trial
unfair. The Court proceeded to set aside the conviction.
The South African Courts have also in a number of cases ruled that
judicial officers have a duty to explain unfavourable presumptions to the
unrepresented accused. In S v Cross, 113 an accused had failed to pay his
monthly instalments in respect of a maintenance order. When once the
prosecution had proved failure to pay, an onus fell upon him to establish
109 Mosanana v The State op.cit. note 107 supra at p. 31.
110 [1993] NASC 2; 1995 NR 1. Obtained from: (last visited 1 September 2010).
Cyclostyled copy on file with the author.
111 Section 26(1) of the Nature Conservation Ordinance 4 of 1975 as amended.
112 The section provides as follows:
“Whenever any person performs an act and he would commit or have committed an offence by
performing that act if he had not been the holder of a licence, registration permit, exemption, document,
written permission or written or other authority or power (herein in this section called the necessary
authority) to perform such act, he shall, if charged with the commission of such offence, be deemed not to
have been the holder of the necessary authority, unless the contrary is proved.”
113 1971 (2) 356 (R,AD); S v Lango op.cit. note 47 supra; S v Kekwana 1978 (2) SA 172 (NKA); S v Brown
1984 (3) SA 399 (KPA); S v Khumalo 1979 (4) SA 480 (TPD).