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[2016] ZAWCHC 64
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Liang v S (A344/2015) [2016] ZAWCHC 64; [2016] 3 All SA 571 (WCC) (1 June 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NO.: A344/2015
DATE:
1 JUNE 2016
REPORTABLE
In
the matter between:
CHENG
JIE
LIANG
.................................................................................................................
Appellant
And
THE
STATE
..............................................................................................................................
Defendant
Court:
Samela J
et
Cloete J
Heard:
13 May 2016
Delivered:
1 June 2016
JUDGMENT
SAMELA,
J
Introduction
[1]
On 28 October 2013, the appellant was charged in the Khayelitsha
Regional Court for the contravention of the following. Ad Counts
1
and 2, contravening s 42 (1) (b) of the Nature and Environmental
Conservation Ordinance 19 of 1974, alternatively s 4 (2) (a)
of the
Ordinance. Ad Count 3, contravening of
s 44
(2) of the
Marine
Living Resources Act 18 of 1998
alternatively, contravening
Regulation 36
(1) (a) promulgated under the Act.
[2]
The appellant who was legally represented throughout the trial
pleaded not guilty to all the counts. After evidence was
led,
on 5 September 2014, the appellant was found guilty on the main
charge in respect of counts 1 and 2 and guilty on the alternative
charge in respect of count 3, and sentenced as follows:
2.1
counts 1 and 2 were taken together and he
was sentenced to ten (10) years imprisonment, of which three (3)
years were suspended
on condition that the appellant paid the sum of
five (5) million rand, regarded by the court a quo as a fair portion
of the proven
commercial value of ivory, within twelve (12) months
from the date of sentence;
2.2
on count 3, the appellant was sentenced to
two (2) years imprisonment, the ivory and abalone were forfeited to
the state;
2.3
count 3 was not to run concurrently with
counts 1 and 2; and
2.4
five (5) million rand was directed to be
paid to the Cape Nature Board, and that the Police Department had to
deal with the division
of the money.
[3]
The application for leave to appeal on the 19 November 2014 against
both conviction and sentence was refused by the court a
quo. On
petitioning the Judge President, leave to appeal was granted by this
court on the 17 March 2015. The appeal
is against the
convictions and sentences.
Factual
Background
[4]
The only evidence on record of the court’s proceedings is the
one led by the state. The defence submitted that the
court a
quo’s summary of the evidence was sufficient.
[5]
The appellant who drove an Audi vehicle, later found to be registered
in the name of Mien Shu Wu was stopped by the police,
as he drove
away from the scene and was brought back to the scene. The
appellant was found in possession of keys to Units
12 and 349 and
cell phones. The Manageress of the Storage Spot, Ms Kapp had
identified the appellant as a regular visitor
to Unit 12, and
informed the police that the appellant was at the aforementioned unit
shortly before (their arrival). She
further testified that Unit
12 was leased by Mr Wu who left South Africa to China on 13 September
2012. Mr Lieu leased Unit
349 and could not be traced.
[6]
On one of the seized cell phones from the appellant, photos of the
whole elephant tusks were found, which were enhanced by the
forensic
laboratory expert, and had certain inscriptions on them. Captain
Brink was able to determine that photos of the whole
tusks were taken
on the 13 September 2012 at 16h17. Appellant’s finger and
palm prints were found on both Units 12 and
349 boxes. Mr Paul
Geldenhuys had noticed during the weighing process of each ivory item
in the photo from the seized cell phones
that markings were similar
on certain pieces cut up. He had noted that the whole tusks seen on
the photos from the appellant’s
cell phone had been locally
cut, a day, two or three before the arrest date. He was of the
opinion that ivory poaching was syndicate
related, and everybody in
the chain was remunerated for their deeds, and that the appellant was
one of the links in the chain.
[7]
The police had observed the remarkable carrier bags with Orlando
Pirates and Big Five (5) logos. The appellant on being advised
to
call a legal representative had requested to use his own cell phone.
When Constable Nyamana on the 3 October 2012 was removing
large ovens
in Unit 349, he had found another box which contained ivory.
[8]
Relevant to count 3, the following evidence is important. A Caravelle
registered in the appellant’s name was found parked
in one of
the garages. The police found inside, abalone. Ms Wermich had
lifted the appellant’s prints from the boxes
and plastic bags
carrying abalone. At the Coral Road scene, empty boxes similar to the
ones found at Storage Spot and Orlando Pirates
bags were seen. That
was the state’s case.
[9]
After the closure of the state’s case, the defence without
calling the appellant or witnesses closed its case without
any
evidence being led.
Issues
To Be Decided
[10]
This court is called upon to decide the following, whether:
10.1
the court a quo was correct in convicting the appellant on both
counts 1 and 2 or whether this amounted to splitting the charges;
10.2
the fine of R5 million imposed exceeded the court’s monetary
jurisdiction;
10.3
the sentence of two years imprisonment on count 3 was too harsh; and
10.3
the conviction and sentence should be in any event be upheld.
Applicable
La
[11]
Hiemstra’s
Criminal Procedure
LexisNexis at 24-100 states that s 235 of the Criminal Procedure Act
51 of 1977(CPA) only provides as to how the record of judicial
proceedings can be proved, not what evidence is admissible: see
S
v Nomzaza
1996 (2) SACR 14
(A) at
16f-g. See also
S v Dlamini and
Others
[1999] ZACC 8
;
1999 (2) SACR 51
(CC) at para
[96]
where the Constitutional Court referred to
Nomzaza
and at para [87] stated that ‘
In
the narrow context of the right to be released from detention the
crux of the issue is that ss 60(11B)(c) not only makes the
record of
the bail proceedings part of the subsequent trial record, but makes
any evidence the accused elects to give at the bail
hearing
admissible against him or her at trial provided the court hearing the
bail application had warned the accused of the risk
of such use.
The first part of ss (11B)(c), which automatically incorporates the
bail record in the trial record, is an unremarkable
procedural
provision which merely allows a shortcut: under s 235 of the CPA a
certified copy of the bail record can in any event
be handed in at
the trial’.
Compare
S
v Balkwell and Another
2006 (1) SACR
especially paras [40] – [41] where the bail proceedings had
been formally admitted in terms of s 220 of the
CPA and were
therefore held admissible despite the absence of prior warning.
[12]
The Magistrate in his judgment said (in the court a quo) the
appellant was not properly informed during the bail proceedings
in
accordance with s 60(11B) (c), and the evidence of the appellant
by way of affidavit during the bail proceedings was thus
inadmissible. He relied on
S v Cloete
1999 (2) SACR 137
(C) [accused not warned sufficiently in bail application and bail
application record thus ruled inadmissible]; and
S v Sejaphale
2000 (1) SACR 603
(T) [non-compliance with the requirements of s
60(11B) (c) rendered the record of the bail proceedings
inadmissible]; see as well
S v Balkwell
and Another
[supra]; and
S v Agliotti
2012 (1) SACR 559
(GSJ). In
Agliotti
it was stated at paras [20] and [21] as follows:
‘
In
our application at hand, the admissibility of bail proceedings in
this subsequent trial is in issue. Section 235, in my
view, may
be of relevance, as it also deals with previous judicial proceedings;
however it does not relate to the admissibility
of the contents of
such proceedings at an accused’s subsequent trial. I find
the section consequently not directly
relevant to the enquiry we are
dealing with presently. The case quoted by the state, viz S v
Nomzaza
1996 (2) SACR 14
(A), ruled that the evidence given by the
accused at a bail application can be allowed at a later trial “if
such evidence
is otherwise admissible.
[21]
The rider used in the case “if such evidence is otherwise
admissible”, in my view illustrates the point I made
above,
that the admissibility of the bail evidence is the paramount
consideration, not just the admission or proof of the previous
record
through section 235 of the Criminal Procedure Act …’
[13]
S 41 of Ordinance 19 of 1974 (“the Ordinance”) provides:
‘
No
person shall donate or sell any wild animal or the carcase of any
such animal to any other person unless, when he or she delivers
such
animal or carcase to such other person, he or she furnishes such
other person with a written document signed by him or her
reflecting
–
(a)
the full names and addresses of such
first mentioned person;
(b)
the full names and address of such
person;
(c)
the number and species of wild
animals or carcases so donated or sold;
(d)
the date on which such animal or
carcase was so donated or sold; and
(e)
a statement by him or her that he or
she has donated or sold such animal or carcase to such other person.’
[14]
S 42 of the Ordinance provides:
‘
Any
person found in possession of any wild animal or the carcase of any
such animal shall be guilty of an offence unless, in the
event of –
(a)
the animal having been hunted by him
or her on the land of any other person, he or she is in possession of
the written permission
contemplated by section 39; or
(b)
his or her having acquired such
animal or carcase from any other person, he or she is in possession
of a written document contemplated
by section 41.
(1)
The provisions of subsection (1)
shall not apply in any case where a relative or full-time employee of
any owner of land is found
in possession of a wild animal or the
carcase of any such animal such relative or employee has hunted on
the land of such owner
with his or her permission or which such owner
has sold or donated to such relative or employee.’
[15]
S 43 of the Ordinance provides:
‘
Every
document referred to in section 39 and 41 shall be retained by the
person to whom it was furnished for a period of at least
two months
from the date on which it was so furnished or while such person is in
possession of the wild animal or carcase to which
it relates,
whichever is the longer period.’
[16]
S 44
(2) of the
Marine Living Resources Act 18 of 1998
reads as
follows:
‘
No
person shall land, sell, receive or possess any fish taken by any
means in contravention of this Act.’
and
[17]
Regulation 36
(1) (a) provides:
‘
No
person shall during and following fishing or related activities,
transport any abalone that is –
(a)
Not in the whole state, except on
the authority of a permit.’
[18]
S 90
of Act 51 of 1977 (as amended) provides:
‘
In
criminal proceedings any exception, exemption, proviso, excuse or
qualification, whether it does not accompany in the same section
the
description of the offence in the law creating the offence, may be
proved by the accused but need not be specified or negatived
in the
charge and, if so specified or negatived, need not be proved by the
prosecution.’
[19]
Defining statutory offences Du Toit et al Juta (Revision Service 55,
2015) at 14-32 provide:
‘
In
defining statutory offences, prohibited conduct is often cast in the
form of a general prohibition. The general prohibition is
then made
subject to a series of exceptions. These exceptions may, for example,
relate to factual situations, a person’s
sex, age, profession
or to the racial group to which he belongs. Section 90 is
applicable to this sort of statutory provision.
Where the legislature
makes use of this procedure, the State need only allege and prove
essential elements of the offence. An accused
who alleges that he is
excluded from the scope of the provision by an exception, exemption,
proviso, excuse or qualification (‘exception’
will
henceforth be used to encompass all of these items) will, however,
have to prove the same. The State does not even have to
allege that
an accused is protected by an exception or other limitation. The
reason for this particular provision in s 90, in regard
to the burden
of proof, lies in its efficiency. While it is easy for an accused to
prove that exculpatory factors operate in his
favour, the State would
face insurmountable problems in proving that an exception or other
limitation would not apply in a particular
case.’
[20]
In
S v B M
2014 (2) SACR 23
(SCA) at para [3], the court in dealing with
duplication or splitting of charges said the following:
‘
It
is apparent that charging Mr BM with two separate counts, arising out
of what was clearly one and the same incident, involved
an improper
duplication (splitting) of charges. It has been a rule of
practice in our criminal courts since at least 1887
that “where
the accused has committed only one offence in substance it should not
be split up and charged against him in
one and the same trial as
several offences”. The test is whether, taking a common
sense view of matters in the light
of fairness to the accused, a
single offence or more than one has been committed. The purpose
of the rule is to prevent a
duplication of convictions on what is
essentially a single offence and, consequently, the duplication of
punishment. Its
operation is well illustrated by the example
given in
R v Kuzwayo
,
of the theft of 10 apples from an orchard on one occasion, where
there is only a single offence, and the theft of one apple a
day over
10 days, where there are 10 offences. Here, if there were an
offence it was patently a single offence committed
with a single
intention. It should not have been split into two charges’.
[21]
In
Goldberg v Director of Public
Prosecutions, Western Cape
2014 (2)
SACR 57
(WCC) a full bench dealt with the meaning of ‘acquired’
and ‘found in possession’ for purposes of s 42(1)(b).
It was held at para [67] that “In order for the appellant to
have been convicted it was necessary for the state to prove
beyond
reasonable doubt that the appellant ‘acquired’ the ivory
items from another person. It was also necessary to
prove beyond
reasonable doubt that the appellant was ‘found in possession’
of the ivory items”. At para [74]
it was held that the word
‘acquired’ in s 42(1)(b) means that the person found in
possession should have obtained ownership
from a disposer or should
at least have a vested right to obtain ownership from the disposer.
At para [74] it was held further
that the form of possession
contemplated in s 42(1)(b) is possession for one’s own
benefit. Possession is unlawful
unless the person found in
possession has a statement of origin as contemplated in s 41.
Only the person who holds for his
own benefit would be in possession
of the statement of origin, and the statement of origin would confirm
that such a person is
the one who acquired the item in question.
A person who has custody of an item on behalf of another would not
himself be
in possession of a statement of origin. Possession
for the benefit of another does not constitute “possession”
for purposes of s 42(1).
Witness’
right to silence
[22]
S 35 (1)(a) of Act 108 of 1996 (the Constitution) provides:
‘
Everyone
who is arrested for allegedly committing an offence has the right –
(a) to remain silent;’
[23]
In
S v Boesak
[2000] ZACC 25
;
2001 (1) SACR 1
(CC) the court said at para [24]:
‘
The
right to remain silent has application at different stages of a
criminal prosecution. An arrested person is entitled to
remain
silent and may not be compelled to make any confession or admission
that could be used in evidence against that person.
It arises
again at the trial stage when an accused has the right to be presumed
innocent, to remain silent, and not to testify
during the
proceedings. The fact that an accused person is under no
obligation to testify does not mean that there are no
consequences
attaching to a decision to remain silent during the trial. If
there is evidence calling for an answer, and an
accused person
chooses to remain silent in the face of such evidence, a court may
well be entitled to conclude that the evidence
is sufficient in the
absence of an explanation to prove the guilt of the accused.
Whether such a conclusion is justified
will depend on the weight of
the evidence. What is stated above is consistent with the
remarks of Madala J, writing for the
Court, in
Osman
and Another v Attorney-General,
Transvaal, when he said the following:
‘
Our
legal system is an adversarial one. Once the prosecution has
produced evidence sufficient to establish a prima facie case,
an
accused who fails to produce evidence to rebut that case is at risk.
The failure to testify does not relieve the prosecution
of its duty
to prove guilt beyond reasonable doubt. An accused, however,
always runs the risk that, absent any rebuttal,
the prosecution’s
case may be sufficient to prove the elements of the offence.
The fact that an accused has to make
such an election is not a breach
of the right to silence. If the right to silence were to be so
interpreted, it would destroy
the fundamental nature of our
adversarial system of criminal justice.’
Sentence
[24]
In
S v Zinn
1969 (2) SA 537
(A) at 540G-H court said:
“
What
must be considered ‘is the triad consisting of the crime, the
offender and the interests of society.” The
provisions of
the Act inform courts of the attitude of society to crimes of a
particular nature, specified in a schedule to the
Act, which includes
drug trafficking where the value of the drug exceeds a certain
amount.’
[25]
S 86 (1) (b) of the Ordinance provides:
‘
A
contravention of section 27 (1), 29, 31, 40, 41, 42 (1) 44(1) (a),
(b) or (e) or 46 involving an African elephant, to a fine not
exceeding ten years or to both such fine and such imprisonment, and
to a fine not exceeding three times the commercial value of
any
African elephant or the carcase thereof in respect of which the
offence was committed.’
[26]
S 58
(4) of the
Marine Living Resources Act 18 of 1998
provides:
‘
A
regulation made under this Act may provide that a person who
contravenes or fails to comply with a provision thereof, shall be
guilty of an offence and liable on conviction to a fine or
imprisonment not exceeding 2 years.’
[27]
In
S v Mpofu
1985 (4) SA 322
(ZHC) at 329H-330C the court stated:
‘
Inquiries
by the court, or evidence given may indicate that there is no
possibility of the accused repaying the complainant, and
the passing
of a suspended sentence to allow for restitution may be considered
therefore to be a complete waste of time.
Even so I fail to see
how such a provision would cause any prejudice to the accused or
anyone else and the accused would at least
be given the chance,
should the opportunity arise unexpectedly and subsequently, to secure
the benefit of a reduced sentence. To
put it another way, in the
context of a condition relating to compensation, the justification of
the sentence is not dependent
upon there being a reasonable prospect
that the condition imposed will be met, for the purpose of the order
is based on a different
footing altogether . . . the accused is
encouraged to perform the act by the carrot that is held in front of
him. His blameworthiness
is reduced by meeting the condition,
and a lesser penalty is, therefore, appropriate. If he is
unable to perform the act
required of him, he will not suffer any
additional penalty, but will merely be unable to earn the reduction
offered to him.’
[See
also
S v Kok
2015 (2) SACR 637
(WCC) at para [15]. See also
S
v Grobler
1992 (1) SACR 184
(C).]
Discussion
[28]
The appellant’s core grounds of appeal were the following:
28.1
there was a duplication of charges on counts 1 and 2;
28.2
the court a quo erred in finding that the appellant had acquired and
possessed the ivory;
28.3
the court a quo was incorrect that the appellant was in possession of
abalone;
28.4
the court a quo misdirected itself in rejecting the bail proceedings;
28.5
the court a quo was incorrect that the state had proved the charges
beyond reasonable doubt;
28.6
the trial court was too harsh in sentencing the appellant to two
years on count 3, and committed an irregularity with regards
to the
sentences on counts 1 and 2.
[29]
During argument the state conceded that the conviction on counts 1
and 2 amounted to a duplication of charges, but submitted
that the
court a quo otherwise correctly convicted and sentenced the
appellant. The state requested this court to confirm the convictions
on counts 1 and 3 as well as the sentence, and to dismiss the appeal.
[30]
Boxes of ivory were found in storage Units 12 and 349 on 14 September
2012 and thereafter the appellant was arrested.
Constable
Mnyamana on the 3 October 2012 had found another box containing ivory
when he removed the large oven in Unit 349.
This resulted in
the appellant being charged with two (2) separate counts of unlawful
possession of ivory. However there
was no evidence that the
appellant or any other syndicate member had placed the ivory found on
count 3 in Unit 349 after the 14 September
raid. I am of
the view that the appellant was correct that counts 1 and 2 should
not have been split and that the appellant
should have been acquitted
on count 2. The prejudice to the appellant lies in the
duplication of the convictions (irrespective
that the 2 counts were
taken as one for purposes of sentence) and the state’s
concession was correctly made.
[31]
The appellant submitted that the only issue between the state and the
defence in respect of counts 1 and 2 was whether the
appellant had
‘acquired’ the ivory from another person and had been in
‘possession’ thereof. In respect
of the abalone
referred to in count 3, the only issue was whether the appellant had
been ‘
unlawfully and wrongly
engaged in keeping and/or controlling and/or storing and/or
transporting and/or being in possession’
of
the 1138 dried abalone. The state argued that the court a quo,
relying on s 90 of Act 51 of 1977 (as amended) and in interpreting
s
42(1)(a) and (b) in light of the relevant case law arrived at the
correct decision that the appellant was in possession of the
ivory
(counts 1 and 2) and abalone (count 3). The state’s
evidence proved the following:
31.1
a cell phone (seized from the appellant)
had photographs depicting the whole elephant tusks;
31.2
the only reasonable inference to be drawn
was that the appellant was involved in taking the photographs on 13
September 2012, hours
prior the elephant tusks were found cut up in
Unit 12;
31.3
Mr Paul Geldenhuys’ opinion regarding
syndicates of several persons, each of whom formed part of a chain
for their individual
financial benefit, was supported by Colonel
Potgieter;
31.4
Ms Kapp’s evidence was that the
appellant regularly visited Unit 12, and on the 14 September 2012 had
been there at 13h55;
31.5
the appellant’s fingerprints were
found in both storage Units 12 and 349;
31.6
the appellant’s prints were also
found on the box and plastic bag containing the abalone; and
31.7
the abalone had been found in the vehicle
registered in the appellant’s name.
[32]
In the absence of contradictory evidence to the above facts, I am of
the view that the court a quo correctly decided that the
appellant
had acquired and was in possession of the ivory and the abalone.
Consequently, I am of the view that the appellant
had a case to
answer, however, he elected not to testify.
[33]
The appellant submitted that although during the bail application he
was not warned by the Magistrate in terms of s 60(11B)(c)
of Act 51
of 1977 (as amended) the bail record should still have been admitted
because it was handed in by agreement in terms of
s 235 of the CPA.
The respondent submitted that the court a quo ruled correctly that
the evidence contained in the bail record
was inadmissible, because
the appellant had not been warned of his rights. It is my view
that the court a quo correctly excluded
the bail proceedings (as a
matter of law) because the Magistrate had no discretion (in the
absence of appellant’s warning).
The bail proceedings
were not admitted in terms of s 220 but in terms of s 235,
and it was therefore not necessary for
the Magistrate to have ruled
on the admissibility of its contents before the state closed its
case.
[34]
The appellant submitted that the respondent failed to prove all the
charges beyond reasonable doubt. The respondent argued
that the
court a quo correctly held that the state proved the charges on
counts 1 and 3 beyond reasonable doubt. I am of
the view that
in the circumstances count 1 and the alternative charge in count 3
were proved by the state beyond reasonable doubt.
[35]
The appellant submitted that a fine not exceeding three times the
commercial value of the ivory amounted to an additional sentence
and
the Magistrate should not have sentenced the appellant to a fine
coupled with an alternative period of imprisonment. Also that
the
Magistrate should have conducted an inquiry regarding the appellant’s
ability to pay a fine. The respondent pointed out
that the appellant
was not a first offender on the abalone count and also showed no
remorse, and submitted that the court a quo
correctly sentenced the
appellant. The court a quo took the following into account (in
sentencing): (i) the prescribed penalty
as well as the commercial
value of the ivory which was in excess of R21 million; (ii) the court
a quo applied the provisions of
s 86(1)(b); (iii) the quantity of the
ivory in count 2 had a value of R146 348 as compared to the
value of the ivory in count
1 of in excess of R21 million and, even
if the conviction on count 2 was set aside, the difference would have
been very minimal.
However I refer to the findings of my sister in
relation to sentence with which I agree.
CLOETE
J
[36]
I support my brother’s findings and add the following. It was
argued on behalf of the appellant that, although the bail
record was
admitted in terms of s 235 of the CPA, the fact of his consent
dispensed with the ‘
if such evidence is otherwise
admissible’
requirement referred to in
Agliotti
.
[37]
To my mind the fact of the appellant’s consent does not solve
his problem, because its basis was what is contained in
s 235.
The authorities referred to by my brother make it clear that s 235
is nothing other than a procedural provision
and it does not detract
from the requirement of prior warning in s 60(11B)(c). In other
words, the record itself may be admitted
(whether by consent or
otherwise) in terms of s 235, but the admissibility of its
contents is another matter entirely. In
Balkwell
the position was different, because the bail record was admitted in
terms of s 220 of the CPA, which rendered its contents
admissible despite the absence of prior warning.
[38]
It was common cause during argument before us that the appellant did
not give oral testimony during the earlier bail proceedings
but
instead deposed to various affidavits. Given that the purpose of
s 60(11B)(c) is to ensure that an accused person receives
a fair
trial, the remarks of the court in
Agliotti
at paras [39] and [40] are instructive:
‘
[39]
It is my considered view that, even where an accused or applicant, in
a bail hearing concerning schedule 6 offences, intends
to use an
affidavit, it is a peremptory duty of the court, right at the
beginning of the proceedings, to warn him fully and comprehensively
of the provisions of s 60(11B)(c). That would allow the
applicant/accused to make an informed choice before he decides on
testifying
viva voce or making use of an affidavit. It does not make
sense to me to want to utilise evidence obtained through both oral
testimony
and affidavit, but expect the owner of such evidence to be
warned only when he testifies orally. As I stated before, both oral
evidence and affidavit are evidence that may be used in the
subsequent trial. As such, the requisite warning should be issued by
the court to the accused before he elects to testify orally or to use
an affidavit. If he has been properly warned, then those
bail
proceedings should be admissible in his subsequent trial. That is why
in the
Commentary
(supra)
and
S v Van Wyk
(supra)
the words “(w)here an accused who was properly warned elects to
testify”, in my view, lend such an interpretation.
[40]
I reiterate: the warning must be issued before the accused makes an
election whether to testify viva voce or through
an affidavit. That
would in my view remove the possibility of any absurd interpretation
of the section, and also ensure a fair
trial for an accused person.’
[39]
In the present case the appellant made a number of s 220
admissions during the course of the trial. If it had been his
intention to admit the content of the bail record he would surely
have done so in terms of s 220. He was represented by two experienced
attorneys. Counsel for the state (who also appeared in the trial)
candidly informed us that the sole purpose of requesting the
court to
admit the bail record as an exhibit in terms of s 235 was to use
it to cross-examine the appellant if he chose to
testify during the
course of the defence case. That was the reason it was handed in
before the state closed its case. As it transpired,
no further
reference was made to the bail record because the appellant chose not
to testify.
[40]
If the appellant had testified then the admissibility of the contents
of the bail record would have been canvassed at that
stage. But not a
murmur was made by the defence about the contents of that record
during their case or even in argument before
conviction. The defence
thus clearly had no intention of having regard to the content of that
record and, as was found in
Agliotti
:
‘
[34]
I have listened attentively to all the proceedings in this court thus
far: defence counsel did not once refer to the
bail proceedings. The
state argues that Clinton Nassif referred once to them in his
testimony. That could be so, but Clinton Nassif
is a state witness,
not a defence witness. As a consequence, I cannot find and rule that
the defence has lifted its shield, justifying
the admission or use of
the bail proceedings in this trial.’
[41]
In further support of his argument counsel for the appellant relied
on
S v Ramavhale
1996 (1) SACR 639
(A) at 650i-651g. However there the court was
dealing with the admissibility of hearsay evidence within the context
of
s 3(1)(c)
of the
Law of Evidence Amendment Act 45 of 1988
,
and it is therefore distinguishable. Here the contents of the bail
record were inadmissible as a consequence of
s 60(11B)(c)
because the record itself was only admitted by consent in terms of
s 235.
In my view it was not incumbent on the trial court to
rule on its admissibility. If the appellant wished to rely on the
contents
at any stage then he should have made this clear to the
Magistrate.
[42]
The trial court was therefore correct in excluding the content of the
bail record when evaluating the evidence, and the submissions
made on
behalf of the appellant regarding the weight, if any, to be attached
to his affidavits tendered in the bail proceedings
need not be dealt
with.
[43]
It was also submitted on behalf of the appellant that the state
failed to prove that he held the ivory for his own benefit,
because
the possibility could not be excluded that he did so on instructions.
As to the meaning of ‘
found in possession’
for
purposes of s 42(1) of the Ordinance, the following passage in
Goldberg
is apposite:
‘
[76]
Mr Tarantal also submitted in his note than an employee who has
physical control over the items in a shop exercises such
control for
his own benefit, ie in order to earn a salary, even if he
simultaneously exercises control for the benefit of the owner.
I
reject that submission. The functions which an employee carries out
in the course of discharging his duties are all performed
for the
benefit of the employer. The employee places himself at the disposal
of the employer during the agreed hours to carry out
the latter’s
lawful instructions. Provided he does so, he is entitled to the
agreed wage or salary. The amount of his salary
is not dependent upon
or related to any specific task he may happen to perform during the
course of his day. Furthermore, I can
see no rational distinction in
that regard between employment as a manager and employment in an
inferior position.’
[44]
There was no suggestion, either during the trial or the appeal that
the appellant was carrying out the
lawful
instructions of an employer in relation to the ivory. He had access
to storage units in the middle of a city containing the partially
worked tusks of 9 freshly slaughtered African elephants. If he
received instructions as an “employee” to hold the ivory
then these instructions were patently unlawful. It could not have
been intended by the court in
Goldberg
,
nor for that matter, the legislature, that a person in the position
of the appellant could escape scot free under s 42(1)
in such
circumstances. Indeed the specific reference in
Goldberg
to ‘
lawful instructions’
makes this clear.
[45]
Turning now to the sentence imposed on the ivory counts.
[46]
The Nature and Environmental Conservation
Ordinance 19 of 1974 was promulgated on 21 February 1975 and
commenced on 1 September
1975.
[47]
The administration of the whole of the
Ordinance was under Proclamation R115 of 1994, published in
Government Gazette 15813 of 17 June
1994, assigned to the
Province of the Western Cape with effect from 17 June 1994 in
terms of Item 14(1) of Schedule 6 to the
Constitution.
[48]
The entire text of Ordinance 19 of 1974 was
substituted by s 1 read with Schedule 1 of the Western Cape Nature
Conservation Laws
Amendment Act, 3 of 2000, which was assented to on
23 March 2000 and which commenced on 1 April 2000. It is now
called The
Nature Conservation Ordinance, 1974 and I will hereafter
refer to it as ‘
the Ordinance’
.
[49]
S 86(1)(b) of the Ordinance provides that a
person convicted of a contravention of s 42(1) thereof, involving an
African elephant,
shall be liable to a fine of R100 000.00 or to
imprisonment for a period not exceeding 10 years or to both such
fine
and such imprisonment,
and
to a fine not exceeding 3 times the commercial value of any African
elephant or the carcase thereof in respect of which the offence
was
committed.
[50]
S 2 of the Ordinance defines "carcase"
in relation to any wild animal to also include the whole or any part
of the tusks
of a wild animal.
[51]
"Wild animal" is defined in s 2
of the Ordinance to mean any live vertebrate or invertebrate animal,
excluding any ostrich
used for farming purposes, belonging to a
non-domestic species and include such animal which is kept or born in
captivity.
[52]
S 287(1)
of the
Criminal Procedure Act 51
of 1977
reads as follows:
‘
287
Imprisonment in default of
payment of fine
(1)
Whenever a court convicts a person
of any offence punishable by a fine (whether with or without any
other direct or alternative
punishment), it may, in imposing a fine
upon such person, impose, as a punishment alternative to such fine, a
sentence of imprisonment
of any period within the limits of its
jurisdiction:
Provided
that, subject to the provisions of subsection (3), the period of such
alternative sentence of imprisonment shall not, either
alone or
together with any period of imprisonment imposed as a direct
punishment, exceed the longest period of imprisonment prescribed
by
any law as a punishment (whether direct or alternative) for such
offence.’
[53]
S 92(1)(b) of the Magistrate's Court Act,
32 of 1944 regulates the penal jurisdiction of lower courts and reads
as follows:
‘
92
Limits of jurisdiction in the
matter of punishments
(2)
Save as otherwise in this Act or in
any other law specially provided, the court, whenever it may punish a
person for an offence
-
(a)
by imprisonment, may impose a
sentence of imprisonment for a period not exceeding three years,
where the court is not the court
of a regional division, or not
exceeding 15 years, where the court is the court of a regional
division;
(b)
by fine,
may
impose a fine not exceeding the amount determined by the Minister
from time to time by notice in the Gazette for the respective
courts
referred to in paragraph (a)
;
(c)
…
.
(d)
by correctional supervision, may
impose correctional supervision for a period as contemplated in
section 276A(1)(b) of the Criminal
Procedure Act, 1977 (Act 51 of
1977).
(3)
(a) The Court shall have
jurisdiction to impose any punishment prescribed in respect of an
offence under an ordinance of a province
or the territory which
relates to vehicles and the regulation of traffic on public roads,
notwithstanding that such
punishment exceeds the jurisdiction referred to in subsection (1)
.
(b)
Where a person is convicted of culpable homicide arising out of the
driving of a vehicle as defined in any applicable ordinance
referred
to in paragraph (a), the court shall have jurisdiction to impose any
punishment which the court may impose under that
paragraph in respect
of the offence of driving a vehicle recklessly on a public road.’
[My
emphasis].
[54]
According to footnote 28 to s 92(1)(b) in
the Butterworths publication of the Magistrate's Court Act the penal
jurisdiction of the
regional courts in respect of fines was increased
from R300 000.00 to R600 000.00 by GN 217 published in
Government
Gazette 37477 of 27 March 2014, with effect from
1 February 2013. Jones and Buckle,
The
Civil Practice of the Magistrate's Courts in South Africa
(10
th
Edition) states that the increase to R600 000.00 was effected by
GN R63 published in Government Gazette 36111 of 30 January
2013. Both
these dates seem to be incorrect. According to GN 217 the increased
jurisdiction to R600 000.00 became effective
on 1 June
2014. The increase in monetary penal jurisdiction does not operate
retrospectively (see
Veldman v DPP,
Witwatersrand Local Division
2006 (2)
SACR (CC) at paras [26], [28] and [34]).
[55]
Accordingly, the jurisdiction of regional
courts relating to the imposition of fines at the time the appellant
pleaded to the charges
on 28 October 2013 was R300 000.00 (as
determined by GN R1411 published in Government Gazette 19435 of 30
October 1998).
[56]
S 1(1)(a) of the Adjustment of Fines Act
101 of 1991 provides that where a person on conviction for an offence
may be sentenced
to pay a fine, the maximum for which is not
prescribed, or in the alternative to undergo a prescribed maximum
period of imprisonment,
the amount of the maximum fine which may be
imposed shall be an amount which, in relation to the period of
imprisonment is in the
same rate ratio as the ratio between the
amount of the fine which the Minister may determine in terms of s
92(1)(b) of the Magistrate's
Court Act and the period of imprisonment
as determined in s 92(1)(a) thereof for a court that is not a
regional court.
Similarly, s 1(2) of the Adjustment of Fines
Act provides that where a person may upon conviction for an offence,
be sentenced
to pay a fine of a prescribed amount or a maximum amount
which may be determined by the Minister, or in the alternative, to
undergo
a prescribed maximum period of imprisonment or be sentenced
to both such a fine and such imprisonment, the amount of the maximum
fine which may be imposed shall be an amount calculated in accordance
with the same ratio.
[57]
At the time the appellant pleaded to the
charges against him, the fine which the Minister of Justice
determined for lower courts
other than regional courts in terms of s
92(1)(b) of the Magistrate's Court Act was an amount of R60 000.00.
In terms
of s 92(1)(a) a district court can impose a sentence of
imprisonment of up to three years. The ratio so calculated is
thus
R20 000.00 for each year of imprisonment.
[58]
Applied to an offence in terms of s 42(1)
read with s 86(1)(b) of the Ordinance the maximum fine of
R100 000.00 can therefore
be increased to R200 000.00 (10
years x R20 000 per year = R200 000.00). However the
Adjustment of Fines Act
does not apply to a fine imposed with
reference to the value of the ivory seized. The court is
instead limited to its ordinary
penal jurisdiction as prescribed in
terms of s 92(1)(b) of the Magistrate's Court Act at the time when
the accused pleaded which,
in this case, was R300 000.00.
[59]
S 287(1)
of the
Criminal Procedure Act,
1977
then provides that the court may impose a sentence of
imprisonment as alternative to such a fine for a period within limits
of
its jurisdiction which, in the case of a regional court, is 15
years. However, in terms of the proviso to
s 287(1)
of the
Criminal Procedure Act, such
an alternative sentence of imprisonment
may not, either alone or together with any period of imprisonment
imposed as a direct punishment,
exceed the longest period of
imprisonment prescribed by the Ordinance for such an offence, which
in this case is 10 years imprisonment.
[60]
No provision is made in the Ordinance for a
lower court to impose a fine which exceeds its monetary jurisdiction
in s 92(1)(b) of
the Magistrates’ Court Act, whereas, for
example, the
Marine Living Resources Act 19 of 1998
provides as
follows at
s 70(3):
‘
(3)
Notwithstanding anything to the contrary in any other Act, a
magistrate’s court shall have jurisdiction to impose any
penalty prescribed by this Act.’
[61]
S 92 of the Magistrates’ Courts Act
contains a similar provision in s 92(2)(a), namely that a lower
court shall have
jurisdiction to impose any punishment prescribed in
respect of an offence under an Ordinance of a province or territory
which relates
to vehicles and the regulation of traffic on public
roads ‘
notwithstanding that such
punishment exceeds the jurisdiction referred to in subsection (1)’
.
[62]
Counsel for the state, while conceding that
the absence of a similar provision in the Ordinance itself is
problematic, sought to
persuade us that the words ‘
save
as otherwise in this Act or in any other law specifically provided…’
in s 92(1) empowers a lower court to nonetheless impose a fine
exceeding the limit set out in s 92(1)(b).
[63]
I am unable to agree. The approach to
interpretation of a statutory instrument was set out in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012
(4) SA 593
(SCA) at para [18] as follows:
‘
The
present state of the law can be expressed as follows: Interpretation
is the process of attributing meaning to the words used
in a
document, be it legislation, some other statutory instrument, or
contract, having regard to the context provided by reading
the
particular provision or provisions in the light of the document as a
whole and the circumstances attendant upon its coming
into existence.
Whatever the nature of the document, consideration must be given to
the language used in the light of the ordinary
rules of grammar and
syntax; the context in which the provision appears; the apparent
purpose to which it is directed and the material
known to those
responsible for its production. Where more than one meaning is
possible each possibility must be weighed in the
light of all these
factors. The process is objective, not subjective. A sensible meaning
is to be preferred to one that leads to
insensible or unbusinesslike
results or undermines the apparent purpose of the document. Judges
must be alert to, and guard against,
the temptation to substitute
what they regard as reasonable, sensible or businesslike for the
words actually used. To do so in
regard to a statute or statutory
instrument is to cross the divide between interpretation and
legislation; in a contractual context
it is to make a contract for
the parties other than the one they in fact made. The “inevitable
point of departure is the
language of the provision itself”,
read in context and having regard to the purpose of the provision and
the background to
the preparation and production of the document.’
[64]
If it was the legislature’s intention
that s 92 of the Magistrates’ Court Act be interpreted in the
manner proposed
by the state, there would have been no need for s
92(2)(a) to have been included, nor would there have been any need
for the inclusion
of provisions such as
s 70(3)
of the
Marine Living
Resources Act in
other statutory instruments.
[65]
The indications are that the omission of a
similar provision when the text of Ordinance 19 of 1974 was
substituted by the Western
Cape Nature Conservation Laws Amendment
Act was inadvertent. Given the consequences of this omission, if this
is indeed the case
there is clearly a pressing need for legislative
correction of this oversight.
[66]
I am therefore compelled to conclude that
the trial court exceeded the powers conferred upon it by s 92(1)
of Act 32 of 1944
in imposing the fine of R5 million.
Furthermore, as submitted by counsel for the Appellant and conceded
by the state during
argument, the trial court should not have
‘
telescoped’
the imposition of a fine into a condition of suspension of the term
of imprisonment. S 86(1)(b) provides for the imposition
of two
separate categories of penalty, the first being a fine not exceeding
R100 000 or imprisonment for a period not exceeding
10 years or
to both such fine and such imprisonment; and the second, to a fine
not exceeding three times the commercial value of
the ivory.
[67]
That having been said, there is no basis to
interfere with the sentence of 7 years direct imprisonment
imposed in respect of
the ivory counts. Even though there was a
splitting of charges, counsel for the appellant correctly conceded
that the quantity
of ivory on count 2 was insignificant when compared
to the quantity on count 1. Furthermore the trial court took both
counts as
one for purposes of sentence. As far as the amount of a
fine is concerned, it is my view that, having regard to the
particular
circumstances of the matter, the most severe fine that a
regional court can impose is appropriate, which would be R300 000.
[68]
As to the abalone count, regulation 96 of
the regulations promulgated under the
Marine Living Resources Act 18
of 1998
provides that:
‘
96
Offences and penalties
Any
person who contravenes or fails to comply with any provision of these
regulations, shall be guilty of an offence and liable
on conviction
to a fine not exceeding R800 000 or to imprisonment not
exceeding 2 years.’
[69]
The appellant was previously convicted on 24 February 2004, i.e.
8 years earlier, of unlawful possession of abalone
and sentenced
to a fine of R80 000 or 12 months imprisonment, with a further
12 months imprisonment suspended for 5 years.
He apparently paid the
fine of R80 000 to avoid incarceration. The suspended portion of
that sentence expired in January 2009.
He was apprehended for the
present offence in September 2012, just 3 ½ years later.
His earlier sentence clearly had
no deterrent effect and the trial
court, after carefully weighing all relevant factors, cannot be
faulted for imposing the maximum
period of imprisonment of 2 years.
[70]
In the result the following order is
made:
1.
The appeal succeeds in part.
2.
The conviction in respect of count 2
is set aside.
3.
The sentence in respect of count 1
is set aside and substituted with the following:
‘
The
Accused is sentenced to 7 (seven) years direct imprisonment, as well
as to a fine of R300 000 (three hundred thousand rands),
and
failing payment of such fine, 24 (twenty four) months imprisonment in
terms of
section 287(1)
of Act 51 of 1977. The sentences shall not
run concurrently and are antedated to 5 September 2014 in terms of
section 282 of Act
51 of 1977.’
4.
Save as aforesaid the appeal is
dismissed. The convictions on counts 1 and 3 are upheld as is the
sentence imposed in respect of
count 3.
M.I.
SAMELA
Judge
of the High Court
J.
CLOETE
Judge
of the High Court