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[2018] ZAWCHC 45
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S v Miller and Others (SS13/2012) [2018] ZAWCHC 45; [2018] 2 All SA 488 (WCC); 2018 (2) SACR 75 (WCC) (19 March 2018)
IN THE HIGH COURT OF
SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
REPORTABLE
CASE
NO: SS 13/2012
In
the matter between:
THE
STATE
And
PHILLIP
JAMES
MILLER
ACCUSED No. 1
WILLEM
JACOBUS VAN
RENSBURG
ACCUSED No. 2
ADRIAAN
GEVAN
WILDSCHUT
ACCUSED No. 3
TONY
PETER DU
TOIT
ACCUSED No. 4
JOHANNES
EMIL
LIEBENBERG
ACCUSED No. 5
RODNEY
ONKRUID
ACCUSED No. 6
STANLEY
SIFISO
DLAMINI
ACCUSED No. 7
DESMOND
DAVID
PIENAAR
ACCUSED No. 8
GREGORY
ABRAHAMS
ACCUSED No. 9
SENTENCES HANDED DOWN ON MONDAY 19
MARCH 2018
GAMBLE,
J:
INTRODUCTION
[1]
On 4 September 2017 Accused no’s 1 to 4 were convicted on
several charges relating
to the unlawful possession or control for
commercial purposes of varying quantities of abalone at times during
the period 2005
to 2006 in contravention of Reg 39(1)(a) of the
Regulations published the Marine Living Resources Act, 18 of 1998
(“the MLRA”).
The same accused were also convicted of
contravening s2(1)(e) of the Prevention of Organised Crime Act, 121
of 1998 (“POCA”)
in that they conducted (or were
associated with the running of) an unlawful enterprise through a
pattern of racketeering activity.
Accused no’s 2,3 and 4 were
also found guilty of contravening s 18(1) of the MLRA in that they
operated a fish processing
establishment without the necessary
license.
[2]
Accused no 5 was convicted of a single count of contravening the
aforesaid Reg 39(1)(a)
in that he was found in unlawful possession of
a quantity of abalone on a single occasion in October 2006 but was
acquitted under
the POCA charge he faced. The charges against accused
no. 7 were held in abeyance after he absconded just after the
commencement
of the trial in August 2014, while accused no’s 6,
8 and 9 were acquitted on all charges.
[3]
After conviction the case stood down for several months while
pre-sentencing reports
were procured. Upon resumption on 5 February
2018 after the summer recess the court heard evidence in mitigation
of sentence on
behalf of all the accused, the details whereof will
appear later as each accused is dealt with invidually. The court also
heard
evidence in aggravation of sentence presented by the State and
the Court asked that a social worker who had furnished a report in
relation to accused no 3’s domestic circumstances be called to
give oral evidence in amplification of her report.
[4]
Thereafter the court adjourned for argument on sentence which
concluded on 7 March
2018. The court is once again indebted to
counsel on both sides for their detailed written and oral submissions
made in regard
to sentence, which have greatly assisted in this
onerous task at the end of what has been a marathon trial lasting in
excess of
165 court days.
THE GENERAL APPROACH IN RELATION TO
SENTENCE IN CRIMINAL MATTERS
[5]
It has been said on more than one occasion that the function of
passing sentence is
a task both most onerous and lonely, for it falls
on the Presiding Judge alone to consider the multitude of relevant
facts and
circumstances and to achieve the necessary balance to
ensure that the sentences imposed are fair, just and lawful. In this
matter,
the court has been fortunate to continue to enjoy the
assistance of an experienced assessor who has been consulted in
relation
to the sentences which will be imposed and with which he is
in agreement. But, at the end of it all it is the court’s
function
to conclude these proceedings by imposing sentence on each
of you, and so it must be.
[6]
The approach to sentence in the constitutional setting was restated
by Sachs J in
S v M (Centre for Child Law as amicus curiae)
[2007] ZACC 18
;
2007 (2) SACR 539
(CC) at
[10]
. In that matter the Constitutional
Court confirmed that the point of departure (or the “
north
star”
as Sachs J called it) in considering sentence remains
the decision of the erstwhile Appellate Division in
S v Zinn
1969
(2) SA 537
(A) at 540G-H in which the so-called “
triad
sentencing formula
” was defined. I quote in full from para
10 of the judgment in
M.
“
[10]
Sentencing is innately controversial. However, all the parties to
this matter agreed that
the classic
Zinn
triad is the paradigm from which to proceed when embarking on ‘the
lonely and onerous task’ of passing sentence. According
to the
triad the nature of the crime, the personal circumstances of the
criminal and the interest of the community are the relevant
factors
determinative of an appropriate sentence. In
S
v Banda
1991(2) SA 352 (B) at
355A Friedman J explained that:
‘
The
elements of the triad contain an equilibrium and a tension. A court
should, when determining sentence, strive to accomplish
and arrive at
a judicious counter-balance between these elements in order to assure
that one element is not unduly accentuated
at the expense of and to
the exclusion of the others. This is not merely a formula, nor a
judicial incantation, the mere stating
whereof satisfies the
requirements. What is necessary is that the court shall consider, and
try to balance evenly, the nature and
circumstances of the offence,
the characteristics of the offender and his circumstances and the
impact of the crime on the community,
its welfare and concern.’
And, as Mthiyane JA pointed out in
Director of Public Prosecutions, KwaZula-Natal v P
2006 (1)
SACR 243
(SCA) at para 13, in the assessment of an appropriate
sentence the court is also required to have regard to the main
purposes of
punishment, namely, its deterrent, preventative,
reformative and retributive aspects. To this the quality of mercy, as
distinct
from mere sympathy for the offender, had to be added.
Finally, he observed, it was necessary to take account of the fact
that the
traditional aims of punishment had been transformed by the
Constitution.”
[7]
In footnote 3 to para 10 of his judgment Sachs J refers to a report
by the South African
Law Commission of November 2000 entitled “
Report
on a New Sentencing Framework
” to give context to his
reference to the controversial nature of sentencing.
“
The
report explains at para 1.2 that individual decisions are announced
to a critical public who analyse them against a variety
of
expectations. They not only ask whether the sentences express public
condemnation of the crime adequately and protect the public
against
future crimes by the reform and incapacitation of offenders and by
the deterrence of both the individual offender and other
potential
offenders, but also whether the sentences are just in the sense of
similar sentences being imposed for offences that
are of equal
seriousness or heinousness. In addition there is a growing
expectation that the sentence must be restorative, in the
sense both
of compensating the individual who suffered as a result of a crime
and of reparing the social fabric that criminal conduct
damages. All
these concerns are inevitably particularly prominent amongst victims
of crime, who have a special interest in the
offences that they
themselves have suffered.”
[8]
Nowadays the public interest in sentencing of offenders, which is the
final destination
in any criminal trial, is spurred on by both the
demand for societal recompense for the extraordinary levels of crime
with which
our communities are plagued on a daily basis and the media
coverage of criminal proceedings which now convert the living room
into
a virtual court room. And so, one often has to endure the
indiscriminate public clamour for heavy sentences when considering
that
leg of the triad. But at the end of the day, a balanced approach
is what the Constitution demands of a court of law, always cogniscant
of the fact, as Ackermann J pointed out in the Constitutional Court
in
S v Dodo
2001 (1) SA 594
(CC) at para 38, that one must not
lose sight of the dignity of the offender involved given that
“
(h)uman beings are not commodities to which a price can be
attached; they are creatures with inherent and infinite worth; they
ought
to be treated as ends in themselves, never merely as a means to
an end.”
[9]
A further consideration which is important in the present matter is
the fact that
the court is dealing with multiple accused who have
been convicted of a variety of offences. In such circumstances the
court must
have regard to the principle of consistency which demands,
on the one hand, that similar sentences be imposed in circumstances
where similarly placed offenders commit similar crimes and on the
other hand that the perpetrators of more serious crimes be sentenced
more severely thereby ensuring that the most blameworthy offenders
receive the severest sentences. See in this regard
SS Terblanche
,
A Guide to Sentencing in South Africa, 3
rd
ed at p139
para3.2.
THE NATURE OF THE OFFENCES INVOLVED
AND THE INTERESTS OF SOCIETY IN RELATION THERETO.
[10]
These 2 legs of the
Zinn
triad will be addressed jointly given
that they are closely aligned to each other. In so doing, I turn
firstly to consider the crimes
of which the accused have been
convicted. On the one hand there are the contraventions of the MLRA,
which involve the unlawful
possession, control and/or keeping of
large quantities of abalone for commercial purposes and the
processing thereof in informal,
illegal fish processing
establishments (“FPE’s). On the other hand, there are the
contraventions of POCA which embrace
the running of, and/or
participation in, the affairs of an unlawful enterprise through a
pattern of racketeering activity.
[11] The
prescribed sentences for the various offences give one some idea of
how seriously the Legislature
considered the gravity of the offences.
As already pointed out in the main judgment, each act of illegal
possession etc of abalone
for commercial purposes carries with it the
sanction of a fine up to a maximum of R800 000 or imprisonment
of not more than
2 years. That sentence is stipulated without any
regard for the amount or size of abalone involved in any particular
act of such
possession. The offence of running an unlicensed FPE
attracts a fine not exceeding R2m or imprisonment up to a maximum of
5 years.
[12]
Turning to the POCA contraventions, the Legislature has determined in
s3(1) that a fine of R1000m
(ie a billion Rand) or life imprisonment
may be imposed for a contravention of s2(1)(e) of that act. I know of
no heavier penal
sanction for any statutory contravention in our law.
In addition, Part 2 of Chapter 3 of POCA makes provision for a court
convicting
a person of a contravention of that act to conduct an
enquiry into any benefit which such person may have derived from the
proceeds
of the crime which has been committed. In that event the
court may make an order that such proceeds be forfeited to the State.
Such an enquiry has been launched by the Asset Forfeiture Unit
against accused no 2 and will be dealt with by this court in due
course after sentencing has been concluded.
THE EFFECT OF ABALONE POACHING ON
THE MARINE ENVIRONMENT
[13] It
has been suggested by some that the illicit possession of abalone is
really a victimless crime.
It is said that unlike murder, rape or
robbery there is no victim who suffers physical harm at the hands of
the perpetrator. The
perception is that offences such as the illegal
possession of rare plants, reptiles, diamonds, gold, ivory, rhino
horn or abalone
are invariably driven by commercial interests and it
is sometimes said that such persons should be convinced, often by the
imposition
of a hefty fine, “
that financially the game is
not worth the candle.”
See
R v Mbele
1955 (4) SA 203
(N) at 207A.
[14] In
this case the State adduced the evidence of a number of employees of
the Branch: Marine and
Coastal Management (“MCM”) of the
erstwhile Department of Environmental Affairs and Tourism. Pursuant
to the rearrangement
of government departments these witnesses later
fell under the current Department of Agriculture, Forestry and
Fisheries (“DAFF”).
They are Messers Bernard Liedemann,
Angus McKenzie and Keith Thompson to whom I shall refer through their
former employment at
MCM. I do not intend reciting their evidence in
any detail: it is a matter of record in the case and I shall focus
thereon only
to the extent that it impacts on the question of
sentence.
[15] The
evidence of the MCM officials gave the court some idea of the extent
of the abalone industry
(both legal and illegal) in South Africa, the
current state of abalone stocks along our coastline, the impact of
abalone poaching
on the marine environment and the value of abalone
in the trade, both locally and abroad. Mr McKenzie’s evidence
in the trial
was illustrated by a useful Powerpoint presentation
which included tables emanating from marine research and photographs
of abalone
poaching taken in situ.
[16] The
evidence of Mr McKenzie, a qualified oceanographer with more than 30
years experience with
MCM in the field of abalone research, explained
in detail how in the 1950’s and 1960’s abalone was
originally harvested
by local artisanal fisherman living along the
coastline from Hawston to Gansbaai and beyond in small craft using a
surface supply
of compressed air piped down to divers on the sea bed.
It was an unsophisticated, community-based activity in which the
locals
took from the sea what they believed was their rightful due.
[17]
However, as the product became more sought after due to its
popularity in the Far East particularly
on festive occasions, it
became necessary to control the fishing rights relating to abalone.
For instance, in the 1985/6 fishing
season, MCM, employing scientific
measures, determined (as it did with other species of fish and rock
lobster) what the annual
TAC (total allowable catch) would be for
abalone for that season. The season, I should point out, corresponds
with the tax year
– from 1 March in year 1 to 28 February in
year 2. Each holder of the right to harvest abalone was allocated a
portion of
the TAC for individual commercial exploitation. The
rights-holder (invariably a diver) was required to bring the abalone
ashore
at a designated place where a fisheries’ inspector was
available to inspect the catch, weigh it and endorse the diver’s
permit accordingly.
[18] MCM
also ensured that the processing of abalone for the export market was
strictly controlled
through the licensing of FPE’s to which
export permits were granted. Most of these FPE’s were said to
be in the Hermanus/Overstrand
area, close to the where the resource
was harvested.
[19] In
the result, a rights-holder for the harvesting of abalone was
permitted to collect annually
no more than the weight specified in
the permit and was obliged to deliver the harvested animals (for that
is what they really
are) in their shells only to a registered FPE.
The rights-holder could instruct the FPE how the harvested product
was to be processed
(eg tinned, dried or frozen) and might even
nominate the end user (eg by designating a specific purchaser), or
the holder could
sell the product to the FPE which was then entitled
to process and on-sell the abalone at its discretion. Where a
rights-holder
had not used up the entire allocation in a particular
year, MCM permitted the balance of the allocation to be rolled over
to a
subsequent year.
[20] It
can be seen therefore that the commercial harvesting, processing and
exporting of abalone
was strictly controlled and monitored by the
authorities so that the sustainability of the resource could be
maintained, on the
one hand, and the revenue stream could be
monitored on the other hand. It was important that commercial
enterprises involved in
the abalone market paid their dues to the
fiscus, thereby ensuring revenue to the State derived from the
commercial exploitation
of its natural resources. Mr McKenzie
testified that by far and away the bulk of abalone harvested in South
Africa was destined
for the Far East and was usually shipped through
the port of Hong Kong.
[21] In
addition to the commercial exploitation of abalone, in the past
recreational divers were permitted
to harvest a daily bag limit for
personal consumption. Initially this was set at 5 units per person
per day and subsequently reduced
to 3. From about 1994 onwards, MCM
noticed an upsurge in the harvesting of abalone by recreational
divers and thereafter a siginificant
increase in poaching along the
coast around Hawson near Hermanus. During the next 10 years poaching
of abalone was said to have
increased about 10 fold, so much so that
in the 2003 season recreational diving for abalone was banned
indefinitely, a situation
which persists to this day.
[22] As
the demand grew and law enforcement clamped down, poachers of abalone
began using sophisticated
equipment such as specialized air supply
tanks (called “bombs”) which were silent (unlike the
compressors of old) and
enabled clandestine diving expeditions to
take place. Through the use of night sights, radio scanners and
cellphones the poachers
were able to take out abalone around the
clock, making use of 7m inflatable craft with powerful engines
(so-called “
super- ducks
”) so as to outpace the
hapless fishing inspectors.
[23]
Applying the maxim of “safety in mumbers” large groups of
divers took to the sea
to harvest abalone. In a photograph included
in Mr McKenzie’s presentation one can see as many as 14 crew
members on one
“super-duck” as it makes its way out to
sea. These fishermen were supported on land by gangs of men and women
armed
with a variety of weapons including semi-automatic rifles.
Understandably, the small numbers of under-resourced fisheries’
officers were no match for these poachers who shamelessly made their
way over the beaches of the Overstrand to relieve the small
craft of
their valuable cargos.
[24] As
a consequence there was an unmitigated plunder of the country’s
natural resources and
the areas under attack were soon fished out.
Undeterred, the poachers expanded their horizons moving further east
and west of Hawston.
It would be fair to say that Gansbaai, directly
across the picturesque Walker Bay from Hermanus but about 40kms by
road to the
east, became synonymous with the illegal abalone poaching
industry in the first decade of this century. Indeed, accused no 3,
Mr
Wildschut, a sometime resident of that village, confirmed as much
in his evidence in mitigation of sentence.
[25] But
the poachers did not only begin exploiting new marine areas
(including the marine protected
areas off Betty’s Bay and
Robben Island), they also started taking out smaller, undersized
abalone. While the minimum shell
diameter of a legally sized animal
measured 114mm, Mr McKenzie testified that more than 60% of poached
abalone seized by the authorities
was found to be undersized. This
meant that the reproductive cycle of the species was being
compromised as immature adults were
harvested.
IMPACT ON THE THE TOTAL ALLOWABLE
CATCH
[26] The
response of the authorities to this impending ecological disaster was
to reduce the TAC annually
and to reduce the areas (“zones”)
in which harvesting was permitted to take place. Mr Thompson, who was
recalled by
the State to give evidence in aggravation of sentence,
testified that in the 2003/4 season the TAC for abalone was fixed at
282
tons, a figure which was down by nearly 30% in comparison to the
previous season. That tonnage was allocated to 300 individual rights
holders who each received permission to harvest a quota of 940 kg per
season at that time.
[27]
There was a steady decline in the TAC. By 2005/6 it was down to 223
tons and the following season
(2006/7) it almost halved to 125 tons.
These are important figures to which I shall return later since the
abalone involved in
this matter was exported between January 2005 and
September 2006. In the 2007/8 season the TAC was reduced further to
75 tons but
the situation was so dire that no TAC was allocated in
the 2008/9 season in an endeavour to protect the species.
[28]
This environmentally proactive step understandably resulted in an
outcry amongst the licensed
fisherman who suffered a complete loss of
income. The court was informed that litigation ensued and that as a
consequence thereof,
the authorities were ordered to reinstate a TAC
in the 2009/10 season: for the next 4 seasons 150 tons were
allocated. These were
shared amongst the rights-holders who were then
each allocated 500kg per season. In the 2013/14 season the TAC was
dropped again
to 96 tons rendering an annual quota of 320 kg for each
rights-holder. As matters presently stand that is the TAC for the
2017/18
season.
[29] Mr
Thompson explained to the court how the weight of the abalone is
reduced through the processing
phase. First of all, the animal must
be delivered to the FPE in a live state ie “shell-on”.
Once the shell is removed
and the abalone is gutted of its entrails,
its weight reduces by about 70%. So, for example, a live animal
weighing 1kg on delivery
to the FPE will render approxiamately 300g
of raw meat for processing for human consumption. That 300g portion
of abalone meat
can be frozen and exported as such, or it can be
canned.
[30]
There is evidently also a good market in the Far East for dried
abalone, which must also be processed
by an FPE. In such event, said
Mr Thompson, there is a further reduction in the mass of the cleaned,
fresh meat by about 70% rendering
around 90-100g of dried abalone
meat from a live, “shell-on” animal of 1kg. For the
purposes of this judgment I shall
refer to the live, “shell-on”
animal as “
live abalone”
.
[31] Mr
Liedemann, now a Deputy Director in DAFF charged with MLRA
compliance, told the court that
he visited Hong Kong in October 2011
in the course of his work in a related abalone prosecution and
encountered any number of retail
stores selling a variety of marine
products, from sharkfin, mussels and sea cucumbers to a large
selection of abalone products.
He was able to sneak a few photographs
of abalone on the shelves of a store he passed (he was apparently not
permitted to go in
and photograph) and produced these as Exhibit VV.
On several of these photographs one can see dried abalone stored in
large glass
cannisters. According to Mr Liedemann, South African
abalone is on sale “on almost every street in Hong Kong”
and some
of his photographs included South African abalone, which he
was able to identify.
[32] The
price reflected on the cannisters photographed by Mr Liedemann
suggests a retail price of
HK$ 3800 per catty. This, according to
Wikipedia Online
Encyclopaedia
, is a traditional unit
of mass used in the Far East for weighing food and groceries in shops
and street markets. In Hong Kong it
is the equivalent of 604 metric
grams. I shall return later to the Rand equivalent per kilogram of
dried abalone on sale in Hong
Kong. Suffice it to say that there is a
huge mark-up of this sought after product from the time that it
leaves the kelp-clad reefs
of Gansbaai and beyond until it reaches
the shelves of stores in Hong Kong.
[33] Mr.
McKenzie’s presentation included a table recording the total
number of units of abalone
confiscated during the decade between 2001
and 2010. The lowest was in 2001 when 300 000 units were seized
and the highest
in 2007 when this figure had trebled to 900 000
units. Understandably, the authorities were unable to produce
accurate figures
indicating the annual tonnage of abalone illegally
harvested and exported from South Africa but Mr McKenzie was able to
cast some
light on the probable extent thereof.
[34]
When he testified in 2014 Mr Mckenzie testified that the TAC was 150
tons which meant that a
maximum of 150 tons of live abalone could be
caught for commercial exploitation throughout South Africa. If that
abalone was cleaned
and frozen for export, said the witness, this
would have rendered approxiamately 50 tons of fresh or frozen abalone
available for
legal export. If the total TAC was dried, on the other
hand, this would have rendered only 15 tons of dried abalone
available for
export. Mr McKenzie said that he inspected the abalone
seized in this matter when the containers exported through V&A
Cold
Storage were returned from Singapore and the contents taken to
the MCM store in Paarden Eiland. There he found boxes of abalone
concealed as pilchards, some containing frozen abalone and some
containing dried abalone. This confirmed his earlier evidence that
there is a market in Hong Kong for both forms of processed abalone.
[35] In
reply to questions from the Bench, Mr McKenzie testified that the
South African authorities
were in regular contact with the
authorities in Hong Kong responsible for the monitoring of the
illegal trafficking of wild life
and related products through that
port. His knowledge thereof stemmed from a working group on which he
served. Mr McKenzie testified
that a member of the working group in
Hong Kong monitored the quantities of abalone passing through that
port and submitted an
annual report to the group. At the time of
giving evidence in 2014 Mr McKenzie testified that it was estimated
that a total of
between 1000 and 2000 tons of processed South African
abalone passed through Hong Kong annually.
[36]
Assuming for the moment the lower figure of 1000 tons, and assuming
further that all of this
abalone was frozen (and we know that it was
not), the evidence shows that the TAC would have been exceeded 20
fold. Put differently,
if 50 tons of frozen abalone could be lawfully
exported in terms of the 2014 TAC of 150 tons, then 950 tons of the
1000 tons of
abalone monitored by the Hong Kong authorities was
illegal. This suggests, at the very least, that of the order of 95%
of the South
African abalone passing through Hong Kong in 2014 was
illegally harvested and exported. The assumptions I have made are
conservative
and the volume of illegal abalone will increase if
account is taken of the possible movement of 2000 tons and, further,
if it is
assumed that some of the tonnage was dried.
[37] At
the end of the day, I believe it can be stated with a fair degree of
certainty that the evidence
establishes that extraordinarily large
amounts of South African abalone have left our shores for the Far
East market and that only
a very,very small percentage thereof was
legally harvested and exported. I turn now to consider the
consequences of this plunder
of one of our country’s prized,
natural marine resources.
THE CURRENT STATE OF THE RESOURCE
[38] In
the first place, consideration has to be given to the current state
of the resource. As already
indicated, Mr Mckenzie testified about
the diminishing size of confiscated abalone. Whereas a legally sized
live abalone in the
shell was required to measure 114mm in diameter
(a little larger than the width of the palm of an adult male hand)
and to weigh
about 700g, the authorities found increasingly that
smaller and smaller animals were being harvested. In one of Mr
McKenzie’s
slides from 2014 one sees a pair of outstretched
male hands holding 10 small shucked abalone rather than the 2 (or
perhaps a maximum
of 3) which one would legitimately expect to find.
Furthermore, upon his return to the witness box in 2018, Mr Thompson
spoke of
seeing confiscated, shucked abalone as small as a R5 coin.
In the circumstances, the marine biologists are most concerned that
the reproductive ability of the species is under serious threat.
[39] Mr
McKenzie told the court of the necessity to introduce designated
zones where abalone could
be harvested in an attempt to maintain the
sustainability of the resource. These zones were surveyed over the
years to measure
the density of abalone found in an area of 50sq
metres of ocean bed (that is an area of approxiamately 7x7m). He
showed, for example,
that around 2001 the density of abalone in the
Gansbaai area was of the order of 0,75 units per 50 sq metres while
in 2010 it had
dropped significantly (about 5 fold) to around 0,15
units. Both Messers McKenzie and Thompson were extremely pessimistic
about
the survival of the species and the extinction of wild abalone
appears to be a very real possibility.
[40] The
area from Hermanus to Gansbaai has seen the growth of the mariculture
industry and, in particular,
the harvesting of farmed abalone which
is grown in tanks close to the sea. Such farms might well ensure the
continued existence
of the species but it seems that even they are
under threat from the poaching community. In a press report on the
News 24 website
on 9 August 2017 it was stated that more than 120 men
had descended on an abalone farm at Danger Point near Gansbaai the
previous
day and indiscriminately helped themselves to farmed
abalone. It was reported that the following day law enforcement
officials
came upon 37 bags (containing 3100 units of abalone)
awaiting collection.
[41]
According to Mr Thompson the abalone produced at these mariculture
facilities is treated like
gold. He described to the court how the
live product is transported to the airport under armed guard in
vehicles customarily associated
with cash-in-transit deliveries and
related an anectodal incident where an off-duty policeman, who was
apparently moonlighting
as a security escourt for such transport, was
gunned down in an attack on such a vehicle.
[42]
While the long term effect on the ecology due to the elimination of
abalone remains a matter
of speculation and will probably only be
fully appreciated in the decades to come, both Mr Mc Kenzie and Mr
Thompson testified
regarding a noticeable uptake of West Coast rock
lobster in areas where they were formerly not found and where abalone
stocks are
now depleted. This was particularly noticeable in the area
around Cape Hangklip and eastwards. Evidently the theory is that the
lobster feed on small abalone, some as small as a thumb nail, and
that the destruction of the larger abalone has left the smaller
units
vulnerable to predation by lobster.
[43]
Furthermore, it is said that the stripping of abalone off the reefs
and rocks on the ocean floor
has led to an increased surface area for
kelp to take root. Consequently, there has been an increase in the
density of kelp forests
and there are concerns that this will affect
the proliferation of in-shore fish species which might struggle to
survive in the
more dense kelp forests. It seems fair to say then
that the large scale destruction of abalone is likely to have
significant ecological
consequences beyond just the extinction of the
species.
SOCIAL IMPLICATIONS FOR LOCAL
COMMUNITIES
[44] The
involvement of organized crime syndicates, in particular the
so-called Chinese Triad gangs,
in abalone is well documented. In a
paper issued by the Institute for Security Studies in April 2005 (ISS
Paper 105) the well known
author Jonny Steinberg discusses the
involvement and influence of these organizations in abalone smuggling
at length in a paper
entitled “
The Illicit Abalone Trade in
South Africa”.
So do Charles Goredema and Khalil Goga in a
later paper issued by the same institute in August 2014 (ISS Paper
262) entitled “
Crime Networks and
Governance in Cape
Town
”. Both papers link the high incidence of substance
abuse in areas where abalone smuggling is rife to the emergence of
drug
smuggling syndicates who are said to exchange abalone for drugs.
[45]
While there is no evidence in this case which links Richard Chao, the
mastermind behind the criminal
enterprise run under the names
Rapitrade and Syroun, I believe that it is fair to say that abalone
poaching generally has had a
deleterious effect on society. This
phenomenon is not only to be found in the writings of academics
distant to the area. Accused
no 3 himself shared with the court his
personal experience of substance abuse and anti-social behaviour
amongst the youth in his
neighbourhood at Gansbaai where jobs are few
and poaching a ready source of income for the locals. This situation
is also confirmed
in a recent study commissioned by the Western Cape
Department of Human Settlements in collaboration with the Overstrand
Local Municipality,
in which a social development agency known as
SOREASCO was asked to report on the needs and demand for affordable
housing in the
area under the jurisdiction of the Overstrand Local
municipality.
[46] In
chapter 7 at p 128 of their report entitled “
Quality of
Life
” the authors refer to their assessment of the concerns
of local residents in the areas from Betty’s Bay to Gansbaai
as
follows.
“
Increasing
social and deviant behaviour within communities was repeatedly
mentioned as a primary factor negatively impacting on
the quality of
life of surveyed communities. This was described as a serious issue
in all settlements, albeit in varying degree,
with the least affected
community reported to be Mooiuitsig in Betty’s Bay and the
worst Masakhane in Gansbaai. Participants
from the latter mentioned
community repeatedly mentioned their disquiet with the
steady decline in the moral standing in this
community, stating that Masakhane used to be a very safe community.
The situation has,
however, changed drastically. It has become,
according to a leader, a community that has been… ‘
high-jacked
by criminal elements
directly
linked to the poaching groups active in the area
’
and residing in Masakhane.
The decay in the social fibre in
Masakhane is endemic according to the respondents. The youth,
including the very young, are increasingly
being affected and
becoming involved in criminal behaviour, particularly relating to
drugs and alcohol abuse and sexual promiscuity.
Particular concern
was expressed about young girls that are being corrupted by the
display of affluence and conspicuous spending
by poachers. Some of
the local police were also implicated by the respondents claiming
that they assist poachers in their criminal
activities….
The exact same
sentiment was expressed by a community leader… in Pearly
Beach. Concern was raised about the increasing crime
and abuse of
substances in this settlement, claimed to be intimately associated
with the practice of
poaching. The
impact of this illegal activity on the community’s mores and
cohesion is negative and is exacerbated by the
lack of concerted
punitive action by what is described and alleged to be a corrupt
local police service.
This sentiment was repeated by
community leaders and members of Hawston, stating that children are
increasingly getting involved
in drugs and gang activities…..
It is evident from these narratives
that a general deep concern pertaining to the decline in the social
fabric exists among all
low income settlements of the Overstrand. In
all discussion spontaneously this was directly associated to the
abalone poaching
sub-culture evident in these communities….”
[47]
There are no doubt a variety of socio-economic, socio-political and
historical factors which
contribute to the predicament of poor
communities in our province. However, this court cannot ignore the
anecdotal evidence before
it of the negative impact that abalone
poaching has had on the residents of the areas where the resource has
been so actively poached.
[48] In
the circumstances this court rejects the notion that the illegal
exploitation of abalone for
commercial purposes is a victimless
crime. This court has little doubt that both the leaders and the
residents of those communities
look to the courts to take appropriate
steps to improve the quality of life and safety of their communities
when the perpetrators
of this scourge are brought to book.
[49]
Clearly none of the accused before court were directly involved in
the removal of abalone from
the sea. But each of them, in his own
individual way, was a vital link in the chain of production which
facilitated the illegal
export of hundreds of tons of this prized
delicacy to its end users. They are all intelligent people who were
willing and knowing
participants in the greater scheme to advance the
commercial interests of people like Richard Chao, the prime mover
behind this
unlawful enterprise. They too like Chao were driven by
greed and without their participation, the poachers would not have
had a
market for their bounty. In the circumstances, their moral
blameworthiness is not far off that of the mastermind.
[50]
Notwithstanding the current concerns about the extinction of the
species (and I pause to mention
that Steinberg in his 2005 paper
predicted that it was already imminent then), the poaching of abalone
continues apace. In the
main judgment I referred to news reports of
regular police raids and roadblocks at which large quantities of
illegal abalone were
seized during 2017. There does not appear to
have been any let-up in that situation.
ON-GOING POACHING
[51] At
the very time that Mr Thompson was giving evidence in aggravation of
sentence (8-13 February
2018), there was a news report of a gas
explosion (with the loss of a life) at an illegal FPE in Maitland a
mere 10km or so from
the seat of this court. Mr Thompson confirmed,
after checking records at the MCM store, that more than 11400 units
of dried abalone
weighing 669kg were seized during the raid at those
Maitland premisies, together with 15355 units of fresh, shucked
abalone weighing
1603kg. This is a total of 26735 units with the
average weight of a unit of fresh abalone being 104g and dried 5 g.
[52] In
addition, Mr Thompson informed the court of another on-going
investigation in which he was
involved at the time of testifying
involving the seizure of a large quantity of abalone at a destination
which he preferred not
to disclose for fear of prejudicing that
investigation. And, indeed only last week we read in the local
newspapers of a large raid
in the Overstrand in which a number of
fisheries inspectors were arrested along with more than a dozen
poachers.
[53] In
short it must be said that the alarming fact is that poaching of
large quantities of undersized
abalone continues unabated. The
sentences handed down by the lower courts (often fines coupled with
an alternative of imprisonment,
as we see in the case in respect of
accused no 3 in regard to his guilty plea after his arrest at Foxhole
Farm in February 2006)
seem to have been no more than an occupational
hazard taken into account by the unlawful enterprises as part of
their necessary
running expenses.
[54] The
poaching of abalone, like other forms of poaching, is an offence
which at its core is based
on dishonesty. As this case shows, the
participants in such crime will go to extraordinary lengths to
conceal their activity, knowing
full well that what they are busy
with is unlawful. In the result, the sentences handed down in a
matter such as this must send
a clear message to those who choose to
become involved in abalone poaching, wherever in the chain they may
fit in, that heavy sentences
are lkely to be handed down in the
future.
THE ESTIMATED VALUE OF THE ABALONE
INVOLVED
[55] I
turn now to consider the value of the abalone involved in this
matter. The State led evidence
from Mr Thompson on his re-call in
relation to the going price paid by legal FPE’s for abalone in
2005-6. He testified that
as part of his preparation for testifying
in criminal prosecutions relating to abalone over the years he and
his colleague Barend
Smal (who also testified in realtion to the
convictions) made regular enquiries from the handful of FPE’s
in the Hermanus
to Gansbaai area regarding the price paid by those
entities to rights-holders for the purchase of live abalone at the
time of such
enquiries. The purpose of the enquiry was to attempt to
fix some sort of basic, reliable market price for abalone. Mr
Thompson
did say that it was not an easy task as competitors in the
industry did not easily reveal their trade secrets.
[56]
These figures were set out in a table annexed to Mr Thompson’s
statement prepared for submissions
on sentence, Exh RSC6A, which
reflects that the price paid in 2006 by the FPE’s for live
abalone was R300/kg . Mr Thompson
then purported to calculate the
value of the abalone controlled commercially by each of the accused
by multiplying that rate by
the mass handled per accused. His
calculation in relation to the mass so controlled is, however,
fundamentally flawed and cannot
be relied upon. Suffice it to say at
this stage that the value was overstated due to errors which crept
into the calculations resulting
in the overstatement of the mass of
abalone attributed to each accused.
[57] Mr
Uijs SC, on behalf of accused no 2, took issue with this aspect of Mr
Thompson’s evidence
and attempted to demonstrate that in 2006
the price paid for live abalone was only R150/kg. Counsel did not
adduce any viva voce
evidence in this regard but sought to rely on
various documents which he handed in from the Bar and placed before
the witness for
comment. The documents in question are Exhs RSC 9 to
RSC13.5. The State objected to the admissibility of these exhibits
and in
the result they were only provisionally admitted into
evidence.
[58] The
documents include invoices and payment advices purportedly issued by
a company known as Legitprops
3016 CC, which traded as S&W
Fishing. It appears now to be common cause that this was an FPE
operating out of the industrial
area in Hermanus of which accused no
2 was a member together with a certain Mr Shaun Smith. These
documents suggest that in April
and September 2004, S&W Fishing
paid rights-holders R150/kg for live, “shell-on” abalone
delivered to its factory.
[59]
There is also a “
Purchasing Agreement
” between S&W
Fishing and one D.Bannister in terms whereof the latter’s
entire allocation of 600 kg of live abalone
for the 2004/5 season was
purchased by S&W for R78 000. This equates to R130/kg.
[60]
Given that the documents were intended to be used only for purposes
of mitigation of sentence,
and that the accuracy thereof was not
critical to the guilt of the accused, I am prepared to allow some
latitude in relation to
the issue of admissibility, much like one
would allow in a letter of commendation or a testimonial regarding an
accused person.
The admission of these documents does however leave
one with a problem: how does one square the rate referred to therein
with the
evidence of Mr Thompson, based on his annual survey,
regarding a “
going rate
”?
[61]
Obviously, if the S&W Documents had been proved through a witness
one would have been in
a position to establish the accuracy of the
rate, and, importantly, the circumstances under which it was paid.
One notes, for instance,
that the purchase agreement with Bannister
makes provision for an upfront payment by S&W and it is possible
therefore that
the price was discounted to make provision for this
indulgence by the purchaser in favour of the seller.
[62] The
evidence of Mr Thompson is not without problems either to the extent
that it relies on the
say-so of others. But there is some consistency
(and hence reliability) in the fact that what he presented is really
a survey of
rates paid by a number of FPE’s. When challenged in
the witness box with the accuracy of his figures, Mr Thompson
approached
one of the FPE’s, Walker Bay Canners Ltd, and asked
the accountant (a Mr van der Berg) to verify the rates in his
(Thompson’s)
table. A reply dated 7 February 2018 (Exh RSC
12.1-2) on the letterhead of Walker Bay Canners (which it appears is
a subsidiary
of I&J Ltd, a well-known, listed company in the
fishing industry) stated that their records only went back as far as
2011.
Nevertheless, the price paid per kg to rights-holders for live
abalone during the period 2011 to 2017 refelected in that letter
adequately corroborates Mr Thompson’s table for those years.
There is no reason to think that the rates for earlier years
would
not have been reliably obtained.
[63] In
the matter of
S v Roberts and others
to which further
reference will be made later, the rate payable to divers for live
abalone in the Eastern Cape in 2006 was said
to be US$ 40 –
60/kg. Assuming an exchange rate of R6,70/ US$ at that time (the
figure put forward by Ms van der Merwe in
argument), this equates to
a price of around R270 to R400/kg, rates which sit comfortably with
those mentioned by Mr Thompson.
[64] In
the result, one is left with a range of suggested rates for the
payment of live abalone from
2004 to 2006 of between R130/kg and
R300/kg. I suppose this might be termed the local “
commercial
value
” of the product for that is what legitimate
rights-holders might have received for the sale of the abalone if
they had been
permitted to harvest it and lawfully dispose thereof to
an FPE. It therefore reflects the cost of the lost opportunities for
those
rights-holders. For the purposes of later calculations as to
the value of abalone involved in this matter, and in an endeavor to
be fair to all concerned I shall assume that the price for live
abalone in the years 2005 – 2006 was R250/kg.
[65]
However, this is not the only comparator in relation to the
measurement of the financial implications
of the crimes of which the
accused have been convicted. We know from the evidence that the FPE’s
are responsible for the
export of processed abalone since they are
the entities that are licensed to do so. To the extent that accused
2, 3 and 4 have
been convicted as a result of their involvement in
the running of unlawful FPE’s, one may ask what the value was
to them
of the abalone which Rapitrade on the one hand, and Syroun on
the other, delivered to V&A for export by Richard Chao.
[66]
Save in respect of accused no 4, that figure is unknown to the court,
as is the value to Chao
of the hundreds of tons of frozen and dried
abalone which he unlawfully exported to Hong Kong. In regard to Mr du
Toit, Mr Uijs
SC pointed out in final argument that in his evidence
he said that he was paid R30/kg by Chao for his work in cleaning,
packing
and freezing the abalone. This evidence was not challenged,
said counsel. Mr Uijs SC also referred the court to an invoice
included
in the bundle of documents handed up during argument on
sentence which suggested a rate chargeable by a legitimate FPE. In
the
absence of evidence to the contrary, I am prepared to work with
the rate referred to by Mr du Toit in evidence.
[67]
What we do know, for instance, is that the mass of frozen abalone
delivered by accused no 4 to
Sea Freeze in 2005 was 44 tons, to V&A
in 2005 was 1,8 tons and to V&A in 2006 was 24,46 tons. This
amounts to 70,26 tons
of frozen abalone over the 2 seasons. This
figure excludes the abalone seized at Kendal Road and Brackenfell and
which had not
yet been delivered to Chao. Applying the accepted
formula referred to by Mr Thompson of a 70% loss of weight between
live and processed
abalone, we can estimate what the mass of the live
abalone delivered to Mr Du Toit for processing was, and we can also
calculate
the value thereof at the rate of R250/kg.
[68] In
the result, we see that the weight of the total mass of 70,26 tons of
frozen product actually
delivered by or on behalf of Mr du Toit for
storage by Rapitrade would have been of the order of 234 tons in the
shell. At the
alleged rate of R250/kg the cost of buying in that live
abalone from a rights-holder would have been R58,5m. I shall deal
with
the Kendal Road and Brackenfell abalone separately as that had
not yet been delivered when seized.
[69]
In his cross examination of Mr Thompson, Mr Uijs SC referred the
witness to RSC 13.1 which was
said to be an invoice for the export of
live wild abalone by a registered FPE to a purchaser in Hong Kong.
The document reflected
the value thereof in March 2006 as being US$
49/kg. According to the website of the South African Reserve Bank
(
www.resbank.co.za
)
the exchange rate for 1 US$ on that day was R6,25 meaning that the
export value to the FPE would have been R306,25/kg. If this
document
is a valid and reliable invoice, it suggests that live abalone that
had been purchase for R150/kg (as contended for on
behalf of accused
no.2) was being on-sold live for just over R300/kg which reflects a
mark up of 100%. If the live rate is increased
to R250/kg, the
mark-up is lower.
[70]
Certain of the other documents handed up by Mr Uijs, refer to abalone
transactions in October
2013 with an entity called Sea Point Sidewalk
CC. In her evidence in mitigation on behalf of accused no 2, Ms van
Rensberg suggested
that at some stage or other her husband had an
interest in this corporation. The documents refer to the export of
some 40 kg of
frozen abalone at the rate of US$ 100/kg, while the
exchange rate as reflected on that invoice was R9,80/US$. The
“
product weight
” recorded on the invoice was
120kg, which Mr Uijs suggested was the weight of the live abalone
before it was shucked and
gutted. The conclusion counsel sought to
draw then was that a delivery of 120 kg of live abalone rendered 40
kg of frozen abalone
which was exported for R980/kg before deduction
of freight and admin expenses. So, after paying R420/kg for live
abalone (the 2013
figure suggested by Mr Thompson in his table), the
legal FPE effected a mark-up in excess of 130%.
[71] I
referred earlier to the evience of Mr Liedemann regarding dried
abalone which he saw on sale
in legitimate retail outlets in Hong
Kong in 2011 for HKD 3800/catty. That would equate to around HKD
6333/kg in 2011 terms. According
to the website of the SA Reserve
Bank the average exchange rate in 2011 was HKD 1 = ZAR0,95, giving an
equivalent of just over
R6000/kg for dried abalone on sale in Hong
Kong in 2011. That is also the figure that Mr Liedemann put up.
[72] The
court does not know what the price per catty for dried abalone was in
2006, but, in light
of inflationary increases in commodities
generally it is fair to infer that it was lower 5 years earlier than
HKD 3800. According
to the tables on the Reserve Bank website the
average exchange rate in 2006 was HKD1 = ZAR1,10.
[73] In
the absence of any reliable evidence, it is not for the court to
speculate what the 2006 price
was in Hong Kong for dried abalone per
catty. But what the court can do is to look at Mr Thompson’s
table which reflects
the price allegedly paid by FPE’s for
fresh abalone in 2011 as being R400/kg. Taking this as a baseline
figure, and comparing
it to the 2011 price in Hong Kong for dried
abalone (R 6000/kg), one can assume that the value of 1kg of live
abalone in South
Africa increased around 15 fold (ie 1500%) before it
attained its dried selling price in Hong Kong. And assuming that the
same
increase in value applied in 2006, live abalone with a value
then of R250/kg might have sold for around HKD 3750/kg for dried
abalone.
[74] Mr
Thompson testified that there was a difference between the prices
paid for live abalone by
legitimate FPE’s to rights-holders and
those paid to poachers by illegal FPE’s. He suggested that in
the latter case
the poacher might only receive half of the going
commercial rate. If that is so, the profits to be made through the
illegal exportation
of the product would be even higher than those
suggested above.
[75]
These figures all necessarily involve a degree of speculation given
that there are so many variables
in the calculations which might
influence the figures one way or the other. For the purposes of
sentence in this matter it is not
necessary (nor practically
possible) for the court to arrive at an accurate figure: this is not
a case where there is a direct
correlation between the quantity of
contraband involved and the extent of the sentence such as one finds,
for example, in drug
legislation. But what the court can find is that
there was (and no doubt still is) a massive difference between what
the South
African diver (or rights-holder) earns for a kilogram of
live abalone and what the Hong Kong consumer pays for a kilogram of
the
product in its dried form. Simply put, the figures demonstrate
persuasively that there are very good profits to be made along the
value chain through the illegal poaching, processing and exporting of
South African abalone.
THE MASS OF ABALONE INVOLVED
[76] A
further consideration in relation to the gravity of the offence and
its impact on society relates
to the loss of revenue which the fiscus
suffers through illegal poaching of abalone. I dealt earlier with the
inter-relationship
between the TAC and the high percentage of abalone
entering Hong Kong illegally. It is now apposite to consider the
numbers involved
in this matter. Mr Thompson testified that the
combined TAC for the years covering this case totaled 348 tons of
live abalone –
223 tons for the 2005/6 season and 125 tons for
the 2006/7 season. That is the equivalent of 104,4 tons of shucked,
fresh/frozen
abalone. For purposes of these calculations it will be
assumed that a frozen unit of cleaned abalone is the same weight as a
fresh
cleaned unit and I shall henceforth therefore only refer to
frozen abalone for purposes of mass comparison.
[77] The
mass of frozen abalone exported on behalf of Rapitrade in this case
totals at least 74,3
tons. This comprises
77.1
44 tons exported via Sea Freeze in Hout Bay
during 2005;
77.2 1,8 tons delivered by
accused no 4 to V&A on 25 February 2005 (count 14);
77.3
A total of 21,5 tons exported via V&A
Cold Storage from 24 February 2006 to 23 August 2006;
77.4
In addition to this tonnage, there
were some 12,1 tons of frozen abalone which were retrieved after the
containers seized in Singapore
(“the Singapore containers”)
were returned to Cape Town. According to Exhibit ZZZZ, these
containers were shipped from
V&A on 12–13 September 2006.
Rapitrade’s share of this tonnage was 2,96 tons;
77.5
There were 1706 frozen units seized
at Kendal Road, which at 110g/unit weighed 1876 kg or 1,876 tons, and
77.6
Lastly, there are the 1969 frozen
units seized at Brackenfell on 6 October 2006, which at 110g/unit
weighed 2165 kg or 2,165 tons.
[78]
Accused no 2 has been linked to 27,5 tons of Rapitrade’s frozen
abalone, Accused no 4 has
been linked to the full amount of 74,3 tons
and Accused no 5 to 2,1 tons thereof.
[79]
Syroun, on the other hand, handled at least 67,43 tons of abalone,
some of it frozen and some
dried, made up by
79.1 31,33 tons of abalone (both
frozen and dried) exported via V&A from February to 4 September
2006;
79.2 10788 freshly shucked units
seized at Hercules Street. At 110g/unit this equates to 11866kg or
11,86 tons;
79.3 11030 freshly shucked and
frozen units found at Faraday Street which equates to 12133 kg or
12,13 tons; and
79.4 Syroun’s share of the
Singapore containers, which consisted of both frozen and dried
abalone exported between 12
and 13 September 2006. We are unable to
state with any degree of certainty how many of the frozen units
belonged to Syroun. What
we do know, however, is that there were
45602 dried units in two of the Singapore containers. This must have
belonged to Syroun
and at 30g/unit this quantity of dried abalone
equates to 13680 kg or 13,68 tons.
[80] In
addition to the tonnages referred to in para 79, Syroun handled other
dried abalone. It is
reasonable to assume (and I did not understand
counsel to argue to the contrary) that the dried abalone found at
Faraday Street
and Volmoed Farm, Rawsonville was part of Syroun’s
intended export product. The total of the dried abalone seized at
those
localities amounts to 24713 units made up as to –
80.1 41 units found at Faraday
Street; and
80.2 24672 units found at
Volmoed.
[81] The
weight of these units at 30g/unit equates to 1683 kg or 1,683 tons of
dried abalone. For
purposes of comparison and the calculation of
values generally in this case it is preferable to calculate the
weight of the fresh,
shucked abalone before it was dried. And then it
is necessary to calculate the live weight thereof to arrive at the
local commercial
value of the product. In the result, it is
reasonable to conclude that 1683 kg of dried abalone was derived from
18700kg (18,7
tons) of live abalone, which, when shucked, cleaned and
then frozen would have been reduced to 5610kg or 5,6 tons.
[82] In
addition to the amounts already dealt with there is the evidence
regarding the raid at V&A
Cold Storage on 19 September 2006 when,
according to the revised indictment 72749 units of abalone were
found. These units comprised
both frozen and dried abalone and were
stored on 12 pallets. One of these pallets, it is common cause,
belonged to an entity called
“Aqualina” and played no
part in this case. That leaves 11 pallets which contained abalone
stored on behalf of both
Rapitrade and Syroun. As I have said, that
stored on behalf of Syroun contained dried product but may well have
included frozen
abalone as well.
[83] On
the available evidence,the court is unable to conclude how many of
these units were stored
on behalf of Rapitrade, and how many on
behalf of Syroun. Nor are we able to assess what quantity of the said
units were frozen
and how many were dried. All that can be said is
that the tonnages calculated on behalf of both Rapitrade and Syroun
are significantly
understated, and further that there are of the
order of 5 tons or more which cannot be reliably linked to either
company. When
considered in the greater scheme of things, however, 5
tons of abalone, although worth a lot of money, will not have a
significant
impact in relation to sentence in this matter. In the
circumstances, the accused must receive the benfit of any doubt
occasioned
by the lack of conclusive evidence on this score.
[84] The
effect of these calculations is that it can be concluded with a
reasonable degree of certainty
that the combined mass of frozen
abalone handled by Rapitrade during the period 2005 to 2006 amounts
to 74,3 tons. The live weight
thereof would have been of the order of
247 tons which at R250/kg was worth R61,9m.
[85]
Valuing Syroun’s exports is more difficult because of the
combination of frozen and dried
abalone. In fairness to accused no 3
the court will assume that all of Syroun’s product was frozen
and can therefore be valued
at R250/kg. The total tonnage of 69,8
tons processed and stored by Syroun in the 8 month period from
February to August 2006 equates
to 232,6 tons of live abalone. At
R250/kg this equates to R58,16m. It is important to stress that the
monetary values expressed
are in 2006 terms and do not take account
of the effects of inflation and the devaluation of money. The present
day value of that
money would certainly be higher.
[86] In
summary then, while the TAC for the 2 seasons (2005/6 and 2006/7)
amounted to 348 tons of
live abalone, the unlawful enterprise in this
matter controlled by Richard Chao processed almost 480 tons of live
abalone (Rapitrade’s
247 tons + Syroun’s 232,6 tons).
This is nearly 132 tons more than the permissible TAC in a shorter
period than that covered
by the TAC and amounts to almost 140% of the
TAC.
[87]
These are startling figures when they are considered in the context
of the TAC and what MCM considered
to be the appropriate mass of this
resource to be exploited commercially. And, I would hasten to add, as
accused no 3’s evidence
suggests, this was not the only
unlawful enterprise involved in abalone poaching at that time. While
this matter has been running,
another lengthy POCA trial involving
the poaching and export of abalone (The State v Frank Barends and
others, case no SS 47/2012)
has been running in this Division before
Mr Justice Erasmus. Judgment in that matter has not been delivered
yet.
[88] In
considering the agreed rates and volumes for purposes of sentence, it
is apparent that certain
of the assumptions made in paragraphs 321,
347 and 353 of the judgment on conviction in relation to the weight
of individual units
of abalone were incorrect. Those assumptions have
been ignored for purposes of sentence and only the calculations in
this judgment
on sentence have been considered.
IMPLICATIONS FOR THE FISCUS OF THE
POACHING IN THIS CASE
[89] Mr
Ebenhaeser Beukes returned to the witness box to testify in relation
to sentence. He is a
tax investigator with the SA Revenue Service and
was asked to estimate the lost revenue to the fiscus as a consequence
of these
offences. Mr Beukes testified that he sat down with Mr
Salvin Africa after the latter’s arrest and considered the
contents
of exhibit GG to determine the amount of abalone (exclusive
of pilchards) which was exported through the two cold storage
companies
involved in this matter. As a consequence of an extensive
consultation with Mr Africa, the sole shareholder and director of
both
companies, the witness was able to provide figures for revised
tax estimates in relation to Rapitrade and Syroun for the periods
relevant to this case.
[90] Mr
Beukes stated that as far as Rapitrade was concerned, the company had
declared a loss of R18
313 for the tax year ending 28 February 2005
(i.e. calendar year 2004). Having consulted with Mr Africa the tax
position of the
company was revised so as to reflect an under
declaration of income for that tax year and a revised taxable income
in the amount
of R2 262 407. The tax payable on this amount
(exclusive of penalties and interest) amounted to R656 222. For
the 2006
tax year, Rapitrade rendered no tax return and on the
strength of the documentation made available to it SARS issued a
revised
assessment reflecting a taxable income of R27 486 030.
The tax payable on that figure amounted to R7 919 948.
Finally, for the 2007 tax year, there was once again no return filed
on behalf of Rapitrade, an assessment by SARS was fixed in
the amount
of R29 833 830 with tax in the amount of R8 590 810
payable.
[91]
Turning to Syroun, Mr Beukes testified that that company’s tax
return for the 2005 tax
year reflected a loss of R59 505. This
figure was revised so that the assessment reflected a taxable income
of R11 870
65 with tax in the amount of R333 619 payable. For
the 2006 tax year the company filed no tax return. A revised
assessment drawn
up by SARS for that year reflected taxable income of
R4 494 360 with tax payable in the amount of R1 252 364.
Lastly,
in respect of the 2007 tax year, Syroun similarly filed no
tax return and pursuant to a revised assessment prepared by SARS was
found to have a taxable income of R13 896 740. The tax payable
on this was R3 969 054.
[92] In
the result, SARS has calculated that the two companies owe it a total
of R22 722 017
in arrear taxes for the three tax years in
question. These amounts were not paid and would ordinarily attract
penalty interest
and fines of up to 200% of the assessed taxes.The
composite figure after the addition of interest and penalties for the
liability
of Rapitrade for the 3 tax years in question is R51 636 688
while in respect of Syroun it is said to be R12 731 798.
The sum of these amounts for the 3 years under review is R69 368 486.
[93] The
asumptions made by Mr Beukes are conservative in relation to the
calculations made in this
judgment. Furthermore, it must be said that
the estimates referred to by Mr Beukes could have been subject to
challenge by the
taxpayers if they were considerd to be inaccurate.
And, if the companies had been tax compliant and their assessed taxes
had been
paid timeously, or an arrangement arrived at for the payment
thereof in instalments, it is possible that there might have been a
reduction in the interest and/or the penalty components. But, at the
end of the day, the loss to the national fiscus as a consequence
of
the abalone involved in this matter having been exported illegally,
is still significant and runs into tens of millions of Rands.
LOSS SUFFERED BY FISHING
COMMUNITIES
[94] In
my view, a further important consequence of the abalone in this
matter having been poached,
as opposed to lawfully harvested and
exported, is that the livelihoods of the traditional artisanal
fishing communities and/or
rights-holders have been negatively
affected. Mention has already been made of the fact that in the 2009
season the harvesting
of abalone was effectively stopped when no TAC
was declared. Furthermore, the steady decline in the TAC over the
years (eg. from
282 tons in 2003 to 96 tons presently) has had a
direct effect on the earning capacities of those communities who were
usually
the beneficiaries of lawful rights allocations.
[95] Put
differently, the increase in abalone poaching has led to a smaller
quantity of the resource
being made available for lawful harvesting,
with the result that there is then less abalone available for
commercial exploitation
to enable families to earn a decent living.
And, it would not be unreasonable to infer that persons who would
otherwise have earned
a living lawfully as rights-holders, might be
driven (out of necessity) to poaching to enable their families to
survive –
a real case of a dog chasing its own tail.
[96] As
I have already demonstrated, the facts here show that abalone worth
more than R128m was harvested
and supplied to Rapitrade and Syroun
for processing and export in the 2005/6 and 2006/7 financial years.
This does not mean that
the local fishing communities suffered a loss
in that amount, because the authorities would certainly not have
permitted such an
indiscriminate stripping of the marine resources.
Rather, there would have been more abalone available for allocation
to rights-holders
with an increased TAC. Put simply, the poachers
have taken the resource away from those who would otherwise be
entitled to harvest
abalone lawfully with all the beneficiation that
that attracts.
THE IMPORT OF THE POCA LEGISLATION
[97] I
turn next to consider the import of the POCA convctions for purposes
of sentence in respect
of accused 1, 2, 3 and 4. The point of
departure is an understanding of the purpose of the act and its penal
provisions. In
National Director of Public Prosecutions and
another v Mohamed NO and others
[2002] ZACC 9
;
2002 (4) SA 843
(CC) at 850D, the
Constitutional Court, more than 15 years ago, considered the
constitutionality of s38 - a provision of POCA dealing
with the
preservation of seized propertry pending a forfeiture order. In
delivering the unanimous judgment of the court, Ackermann
J gave some
context to the main purpose of POCA.
“
[14]
The Act’s overall purpose can be gathered from its long title
and preamble and summarised as follows: The rapid
growth of organised
crime, money laundering, criminal gang activities and racketeering
threatens the rights of all in the Republic,
presents a danger to
public order, safety and stability, and threatens economic stability.
This is also a serious international
problem and has been identified
as an international security threat. South African common and
statutory law fail to deal adequately
with this problem because of
its rapid escalation and because it is often impossible to bring the
leaders of organised crime to
book, in view of the fact that they
invariably ensure that they are far removed from the overt criminal
activities involved. The
law has also failed to keep pace with
international measures aimed at dealing effectively with organised
crime, money laundering
and criminal gang activities. Hence the need
for the measures embodied in the Act.”
[98] The
measures in the act to which the Learned Justice refers are two fold.
On the one hand POCA
recognizes that often the hidden hand (or the
so-called “
kingpin”
) behind the criminal
enterprise is far removed from the persons who commit, and are
ultimately apprehended and charged with, the
predicate offences –
the so-called “
footsoldiers
”. To dissuade the
kingpins from embarking upon acts of racketeering POCA authorizes the
seizure and forfeiture of assets
believed to be the proceeds of
organized crime. As Justice Cameron put it in
National Director of
Public Prosecutions v Elran
2013 91) SACR 429
(CC) at [68], the
legislation is intended to enable the law enforcement authorities to
“
.. Follow
the money. Seize the profits. Target the spoils of criminality. This
is what POCA does… It targets the proceeds
of unlawful
activities by enabling confiscation of their proceeds upon a criminal
conviction…”
As I said earlier, that is what the
State has asked the court to do later in respect of the property of
accused no 2.
[99] But
in addition to the confiscation of assets, POCA mandates severe
sentences in appropriate
cases. It does so because, in addition to
granting orders which are intended to inhibit the rewards for the
kingpins of the network
of criminality, it aims to dissuade such
persons and the foot soldiers from indulging in such crime through
the deterrence of heavy
jail sentences. To that end POCA is intended
to be a serious response to a pernicious evil which undermines the
very core of our
constitutional order. We are still a relatively
young democracy trying to address the injustices, both social and
economic, of
the past and our public purse needs every cent it can
lawfully lay its hands on.
[100] And so, when our
natural resources and wildlife are indiscriminately preyed upon and
exploited by criminals whose
only interest is financial gain, the
courts are enjoined, through the punitive measures contemplated in
POCA, to protect those
resources for the benefit of the people to
whom they ultimately belong – the people of South Africa.
Prosecution of the masterminds
is no easy task for there are many
foot soldiers who will take the knock instead. But when cases
eventually come before our courts
involving the controllers of such
criminal syndicates the courts must not hesitate to consider invoking
the penal measures at thier
disposal, firstly, to seek retribution
for the theft of natural resources and secondly, to deter others who
think they can do the
same. As Justice Cameron suggested at para 70
of
Elran
“
We should
embrace POCA as a friend of democracy, the rule of law and
constitutionalism – and as indispensable in a world where
the
institutions of state are fragile, and the instruments of law
sometimes struggle for their very survival against criminals
who
subvert them”
[101] It is true that in
this case, the mastermind behind the criminal enterprise responsible
for the export of these
huge quantities of abalone to the East and
the undoubtedly ultimate beneficiary of the scheme has escaped the
clutches of the law
by breaching the trust reposed in him by the
court and skipping his bail. There is no doubt in the court’s
mind that Richard
Chao’s moral blameworthiness in respect of
these offences is high and at the end of it all the ultimate
beneficiary of this
enterprise has avoided the law for now.
[102] Nevertheless, those
who were willing to assist in the advancement of such interests for
their own personal financial
gain also attract a high degree of moral
blameworthiness. Without the planning, financing, processing,
packaging, storage and transportation
of these vast quantities of
abalone to the preferred destinations, the illegal poachers and
divers responsible for the harvesting
of the abalone would have no
market for their bounty. Furthermore, it is not often that the
members of what one might call the
“
middle management
”
of such an enterprise are apprehended. More often than not it is the
foot soldiers – the divers, the guards, the couriers
and the
FPE hands who are caught in possession of the abalone and for whom
bail is posted, legal representation provided gratuitously
and
ultimately a fine paid by someone higher up the chain of command.
That is exactly what this case has revealed.
[103] It is appropriate
therefore that when those members of “
middle management
”
of the criminal enterprise are eventually found out, they too be
dealt with in the manner that POCA contemplates, for that
is what the
law-abiding public in general and the particular communities whose
lives have been affected by this sort of criminality,
expect of the
courts. Serious criminal contraventions warrant serious sentences
subject of course to the consideration of the personal
circumstances
of each accused and it is to that pillar of the
Zinn
triad
that I now turn.
THE PERSONAL CIRCUMSTANCES OF THE
ACCUSED.
Accused No 1
[104] Phillip Milller, who
grew up and was schooled in Cape Town, is 57 years old and has 2
adult children. He is in
engaged to a woman from Heidelberg in the
Southern Cape who farms cattle. Mr Miller has extensive experience in
the local fishing
industry where he has worked most of his life.
Currently, he consults to a fish processing factory in the Strand
where he earns
between R20 000 and R30 000/mth. Mr Miller spends
extended weekends with his fiancé in Heidelberg where he
assists
with farming chores and during the week lives in the Strand
close to his place of employment.
[105] Mr Miller has had
various complicating orthopaedic conditions, resulting in many
operations, throughout his adult
life as a consequence of a
parachuting injury sustained while performing military service nearly
40 years ago. He also suffers
from high blood pressure and other age
related ailments but he is a big, strong man who has had a lifelong
interest in diving and
the sea. He has no criminal record.
[106] With the consent of
the State, Ms Joubert handed up a pre-sentence report prepared by an
employee of the Dept
of Correctional Services. From that report, and
indeed from hearing him in the witness box, it is apparent that Mr
Miller has always
been a person imbued with a sense of public service
and spiritedness. He has had a long involvement with the Navel Cadet
Corps
in Cape Town which is a voluntary organization that endeavours
to come to the aid of young people whose lives have become troubled
by engendering in them discipline and a love of the sea.
[107] Mr Miller returned
to the witness stand to give evidence in mitigation of sentence and
gave further evidence regarding
his personal circumstances. He
described the debilitating effect this case has had on him alluding
to his state of mind as that
of “
a dead man walking
”.
I have little doubt that the same can be said for his fellow accused
who have had to wait for many years for this matter
to be brought to
conclusion while a plethora of collateral legal challenges have been
made in relation to the legislation, the
indictment and the
admissibility of evidence in the case. That regrettably is the way in
which these long trials with multiple
accused run.
[108] Mr Miller is
possessed of no assets of any meaningful value and is not in a
position to pay a fine of any substance.
In a thorough pre-sentence
report Ms Ncediswa Sentile comes to the conclusion that Mr Miller is
a suitable candidate for a sentence
of correctional supervision in
terms of s 276(1)(h) of the Criminal Procedure Act, 51 of 1977 (‘the
CPA”) should the
court consider this an appropriate sentencing
option. She observes that as Mr Miller is in full time employment,
has a monitorable
address and he could be subjected to house arrest
and community service in Heidelberg.
[109] Ms Sentile observes
that Mr Miller does not acknowledge his guilt and takes no
responsibility for the commission
of the offences of which he has
been convicted. It is therefore to be inferred that he shows no
remorse for these offences. The
court observed that when Mr Miller
testified in regard to mitigation his evidence was carefully worded.
When cross-examined by
Ms van der Merwe about his apparent lack of
remorse, Mr Miller said the following –
“
I
definitely supplied sardines to Rapitrade, there is no question about
that. I had nothing to do with the exporting of abalone.”
Although the statement may be
construed to be ambiguous, what Mr Miller did not say is that he did
not know that Rapitrade was exporting
abalone through Sea Freeze when
he supplied pilchards to it through Pesca Atalantico.
[110] In my view Mr Miller
spurned the opportunity to take the court into his confidence, to
reflect on the matter and
exhibit genuine remorse. That having been
said, the court accepts that Mr Miller’s involvement in the
activities of the enterprise
was less serious than that of Accused no
2, 3 and 4. Although, he supplied pilchards to help mask the illegal
export of 44 tons
of frozen abalone worth around R11m, his own
interest (according to his counsel) was the commission he earned on
the supply of
pilchards which amounted to about R600 000 for the
year in question. It is true also that Mr Miller was struggling
financially
at the time after the collapse of his company, FTE, and
the he was driven also by need rather than just greed. In light of
these
factors, I am of the view that a lighter sentence is warranted
in the case of accused no 1.
Accused No 2.
[111] Other than tendering
pleas of not guilty on the charges he faces, Mr Willie van Rensburg
has not uttered a single
word in these proceeedings. He has refused
to take the court into his confidence on any aspects of the case,
preferring rather
to call his wife to give evidence in mitigation on
his behalf. In addition, Mr Uijs SC also handed up a report by Ms
Sentile confirming
Mr van Rensburg’s suitability as a candidate
for a sentence of correctional supervision under s276(1)(h) of the
CPA.
[112] From the limited
evidence placed before the court I am able to conclude that Mr van
Rensburg is 45 years of age,
is married and has 2 young daughters
aged 11 and 9 years respectively who are being educated at a private
school in the city. It
would appear that the mother is the primary
caregiver to the children.
[113] Mr van Rensburg grew
up in Hermanus and attended Stellenbosch University where he met his
wife, Ms Kim Sabbe.
He did not finish his B.Com degree there and
dropped out after 2 years. Ms van Rensburg told the court that she
went on to complete
an undergraduate degree and then an honours
degree in the field of property valuation at Stellenbosch. She is
clearly a successful
businesswoman in her own right and owns a
substantial investment portfolio. She describes her husband as an
innovative entrepeneurial
person with an eye for an opportunity.
[114] In her report Ms
Sentile refers to Mr van Rensburg’s current business activity
which is said to involve
the manufacture of fiberglass tanks for use
in the mariculture industry, in particular the farming of abalone. It
is said that
the company employs 27 permanent staff in Hermanus and
that Mr van Rensburg “
draws R20 000 per month from
his….business for his monthly living expenses excluding rent,
transport
and children’s school fees
.” Ms
Sentile reports that Mr van Rensburg travels through to Hermanus
every Monday for work purposes and returns to Cape
Town on weekends.
During the week he evidently stays with his mother in Hermanus. Ms
Sentile reports that Ms van Rensburg informed
her that she earns
around R25 000 per monthm from her business.
[115] Ms van Rensburg
confirmed the allegation in the report that the family lives in Head
Road in Fresnaye. She confirmed
too that this a prestigious address
in one of Cape Town’s exclusive suburbs overlooking the
Atlantic Ocean and said that
she thought that the family home was
worth around R18 million. Ms van Rensburg told the court that their
home is rented and that
the monthly rental was of the order of
R45 000. Rather surprisingly she did not know the name of the
owner of the property
(in which she said they have lived for the past
10 years) but suggested that the rental was paid through a well-known
national
estate agency.
[116] Ms van Rensburg told
the court that the school fees for their daughters, with whom she
says accused no 2 has a
close relationship, ran to around R40 000
per term. When the court asked how the family was able to afford an
obviously opulant
lifestyle, Ms van Rensburg said that she and her
husband funded certain of their shared domestic expenses through
their respective
businesses and drew therefrom what they needed to
live on on an ad hoc basis. She said that accused no 2 contributed
about R25 000
to the family’s expenses but that he has no
assets of any substance.
[117] There are certain
problems with the evidence presented on behalf of accused no 2. In
the first place, his wife
did not refer in any great detail to the
business venture dealt with by Ms Sentile. We heard little about the
fiberglass tank business
from Ms van Rensburg, but a lot about a
company called CKW Steel (Pty) Ltd. Ms van Rensburg acknowledged that
the name was an acronym
for “Clive, Kim and Willie” and
said that the “Clive” was a reference to Mr Clive
Coetzee, an acquaintance
of Mr van Rensburg, who has been present in
the public gallery for much of this trial lending moral support to
his long-standing
friend. Ms van Rensburg has no interest in the
business of CKW Steel, which according to company registration
documents handed
up by Mr Uijs SC, was registered in 2016 with
accused no 2 as the sole shareholder and director.
[118] Ms van Rensburg
explained that CKW was a company that her husband had set up with Mr
Coetzee which imported steel
products (for example wire and spikes)
from China for use mainly in the agricultural sector. To this end it
was said that Mr van
Rensburg regularly visited China on business.
The business was evidently run earlier through a Close Corporation
known as Sea Point
Sidewalk CC but later the name was changed to CKW.
It is apparent to us from the evidence of Ms van Rensburg that CKW is
currently
Mr van Rensburg’s primary source of income yet we
know very little of the financial viability of the company. We have
no
details of its turnover, the staff compliment and the salaries of
its employees or of its profitability.
[119] In the result I must
come to the conclusion that accused no 2 has not been frank with the
court regarding his
current financial position. On the available
evidence, this family enjoys an affluent lifestyle where just
accommodation expenses
and school fees amount to around R60 000/mth
yet where their joint income is said to be of the order of only
R45 000/mth.
These figures do not make provision for food,
clothing, medical expenses, motor vehicle and travel costs or
entertainment, and
at the end of the day the numbers simply do not
add up.
[120] Ms van Rensburg was
asked in her evidence-in-chief to deal with the domestic
circumstances which prevailed in
November 2006 at the time accused no
2 was arrested when they would both have been aged about 34. She
explained that her husband
owned a townhouse in a complex in
Westcliff in Hermanus and that they also rented an apartment in
Clifton. The arrangement with
the landlord in Clifton was that they
had to vacate the apartment over the summer holidays when it was
rented out at a higher rate
and during that period the van Rensburg
couple (then still childless) would take up residence in their
Hermanus home.
[121] Ms van Rensburg, who
knows the property market well, confirmed that Clifton is the city’s
most expensive
suburb on the Atlantic Seaboard and it is apparent
that this young couple lived very comfortably at that time. We know,
too, from
the evidence in the main trial that Mr van Rensburg drove a
Mercedes Benz luxury vehicle. One is therefore inclined to ask where
the money came from?
[122] In his cross
examination of Mr Thompson, Mr Uijs SC handed up the unsigned
financial staements for the calendar
year of 2006 of a company called
Ligitprops 3016 CC. This was a close corporation which traded in
Hermanus as S&W Fishing and
the documents describe the nature of
its business as the export of abalone, although Ms van Rensburg said
that they exported crayfish
as well. Its members were Willie van
Rensburg and a certain Shaun M.Smith.
[123] The financial
statements of this CC for the year ended 28 February 2007 reflect a
healthy business with a gross
income derived from the sale of abalone
and crayfish of R11,7m. That figure was up by nearly R3,7m over the
previous year –
an increase in turnover of 46%, at a time when
the abalone TAC had basically halved. While the list of expenses
reflect a general
deduction for salary and wages of R54754, the
salary for members is recorded as nil. However, the members declared
a dividend totalling
R1,036m in that financial year. Assuming that
each member drew the same amount via that dividend, this would have
rendered a monthly
income of just over R43 000 per member –
not an insubstantial amount today let alone 12 years ago.
[124] In her evidence in
mitigation on behalf of her husband, Ms van Rensburg let the cat out
of the bag somewhat. She
said that when she married her husband in
2004 he and Shaun Smith were running the biggest privately owned
abalone exporting company
in the country. They were evidently very
successful – “huge” was the word Ms van Rensburg
proudly used. When
asked what the turnover of S&W Fishing was “at
that time” (and counsel was referring to the time around the
arrest
of no 2 in 2006), the witness repeatedly mentioned a figure of
R30m. She knew about this because her husband and Mr Smith had told
her of the figures.
[125] This figure, of
course, does not tally with the turnover mentioned in the company’s
financial statements
but it does give us some idea of the extent of
accused no 2’s probable benefits from his involvement with
Rapitrade. The
evidence fits neatly into the role described by Jaco
Botha – that accused no 2 was the financial backer of accused
no 4’s
illegal FPE which supplied huge amounts of abalone to
Rapitrade for export.
[126] Finally, it should
be mentioned that accused no 2 has 4 previous convictions – 1
for common assault in 1996
when he paid an admission of guilt fine,
and 3 contraventions under the erstwhile Sea Fisherires Act. These
relate to a single
incident in September 1988 when the accused was
found in illegal possession of shucked abalone. He was just 16 at the
time and
the magistrate imposed a sentence of a fine of R300
suspended for 4 years and an order that he write an essay of at least
500 words
on the topic of why it was his duty to conserve marine
life. While these convictions are old and must be ignored for present
purposes
in terms of s271A of the CPA, one wonders whether that essay
was written and whether its purpose was ever truly taken to heart.
[127] The total amount of
abalone involved in respect of the counts on which Mr van Rensburg
was convicted is 28,5 tons
of frozen abalone. This accords, in the
main, with the volume handled by Mr du Toit in 2006, save that Mr van
Rensburg was not
convicted on count 14 (which Accused no 4 was) which
involved 1,8 tons of abalone. The live weight of that frozen mass is
95 tons
and the value thereof at R250/kg amounts to R23,7m.
[128] This figure sits
fairly comfortably with Ms van Rensburg’s evidence about the
turnover of S&W. Of course,
we do not know exactly what Mr van
Rensburg’s benefit was as a consequence of his involvement in
the affairs of Rapitrade.
Perhaps it was half the difference between
the turnover in the financials and the figure mentioned by his wife?
Maybe it was more
and maybe it was less? But whatever it was, it can
be stated with a measure of confidence that Mr van Rensburg’s
interest
was driven by greed, given that he had a successful business
offering a reasonable income. In light of the fact that he has only
been convicted for his involvement with accused number 4 during 2006,
and has been associated with a lower amount of abalone, his
sentence
will be ameliorated accordingly.
Accused No. 3
[129] Gavin Wildschutt did
not testify in the main trial but was called to give evidence in
mitigation of sentence.
He told the court that he is 42 years old and
married with 4 children – a daughter aged 21 and 3 sons aged
18, 16 and 6 years.
He grew up with an absent father who was a truck
driver and was schooled in the Cape Town suburb of Elsies River where
he left
school in grade 11 to help provide for the family. Mr
Wildschutt’s early work life was as a guard on a taxi and later
as
a factory worker in Woodstock.
[130] The family lived in
a house at 58 Naomi Street in Elsies River which they owned. As I
understand it, Mr Wildschutt
is now the rightful owner of the
property in which his mother presently lives alone. He told the court
that he feels morally obliged
to his late father not to sell the
house while his mother still needs a roof over her head. In 2013 Mr
Wildschutt moved his family
to Gansbaai to live in an RDP house which
he had bought there. The family still stays in Gansbaai where the 2
youngest children
are in school. The 2 older children also currently
reside in the Gansbaai house. Mr Wildschutt is currently employed on
a casual
basis with a local building contractor, Mr Isak Fourie, for
whom he does tiling, painting and the like. Much of his time over the
last 4 years has been taken up with this case but when he is able to
work he earns up to R300/day.
[131] Ms Marilyn
Wildschutt is 43 years of age and is chronically ill. In 2010 she was
diagnosed with stage 3 cancer
of the spine which has since spread to
the liver and has progressed to stage 4. Notwithstanding advanced
stem-cell treatment she
has not recovered. Her mobility is severly
compromised and Ms Wildschutt is now mostly confined to bed. She is
cared for by her
husband, the neighbours and the 2 older children. It
seems as if Ms Wildschutt’s prognosis is very poor.
[132] The family survives
off Mr Wildschutt’s earnings, a disability grant for Ms
Wildschutt and social grants
for the 2 younger children. Their
daughter does part-time voluntary work as a teaching-assistant at a
local school while she is
studying through a correspondence degree to
become a teacher, while the oldest son is destined for university
where he intends
studying engineering.
[133] Mr Wildschutt
himself is not healthy and suffers from a congenital illness which
causes clotting of the blood
and for which he is permanently on
medication. While it is evident that Mr Wildschutt grew up in
difficult circumstances, he has
an engaging personality and is one
who expresses himself in forthright terms. He impresses as a firm
disciplinarian who has instilled
good values in his children, for
whom he obviously has high expectations.
[134] Mr Mellor handed up
a report relating to the family’s circumstances drawn up by Ms
T. Klaas-Jolimvaba, a
social worker with the Provincial Dept of
Social Services in Hermanus, as well as a pre-sentencing report by
Ms. J Engelbrecht
of the Department of Correctional Services. The
court requested that Ms Klaas-Jolimvaba be called to give oral
evidence in relation
to the family’s domestic circumstances in
light of the presence of the minor children and the directions of the
Constitutional
Court in
S v M
, the case referred to at the
beginning of this judgment.
[135] Ms Engelbrecht found
that Mr Wildschutt was a suitable candidate for a sentence of
correctional supervision while
Ms Klaas-Jolimvaba, particularly in
her oral evidence, assisted the court in assessing the impact that a
sentence of imprisonment
in respect of accused no 3 might have on the
interests of the children. I shall revert to that aspect shortly but
I first need
to address Mr Wildschutt’s criminal record and the
issue of remorse.
[136] Mr Wildschutt has 2
previous convictions, both of which arise from the raid at Foxhole
Farm on 8 February 2006.
As stated in the main judgment he tendered a
plead of guilty in terms of s105A of the CPA to a charge of
possession of 5050 units
of abalone for commercial purposes in
contravention of Reg 39(1)(a), and guilty to a charge of
participating in the running of
an illegal FPE in contravention fo
s18 of the MLRA. On 3 May 2006 accused no 3 was sentenced to a fine
of R40 000 or 18mths
imprisonment in the erstwhile Regional
(Environmental) Court in Hermanus, the charges having been taken
together for purposes of
sentence.
[137] In his s105A plea
explanation, which was concluded jointly with 5 other persons charged
in relation to Foxhole,
Mr Wildschutt expressly admitted that he was
responsible for the transport of abalone to and from the premises. In
the plea agreement,
in which he said he was employed at the time as a
wood-cutter earning R2000/mth, Mr Wildschutt associated himself with
the following
statements which were recorded in English for the
benefit of accused no 4 in that case. An Afrikaans translation
thereof was signed
by Mr Wildschutt, as the 5
th
accused in
that case:
“
5.
The seriousness of the crime is recognized by all parties,
specifically the ecological and economic importance
of protecting the
abalone resource.
6.
The following extenuating circumstances apply:
The more lenient sentences in
regard to accused 4, 5 and 6 is (sic) the result of possible merit
problems the State might have experienced
in proving the case against
the accused. Notwithstanding, accused 4, 5 and 6 indicated that they
are willing to plea (sic) guilty
to all counts and accordingly more
lenient sentences are seen as appropriate.”
[138] These convictions
have already been taken into account as predicate offences for
purposes of convicting accused
no 3 under the POCA charge. But they
are also relevant for purposes of aggravation in this matter. The
documents before this court
show that at the very time that Mr
Wildschutt was dealing with the consequences of his arrest at
Foxhole, he was busy with the
establishment of the abalone drying
facility at Volmoed. Of particular significance in this regard is,
firstly, the fact that the
rent for the cottage at Volmoed was paid
into Ms Mouton’s bank account in cash by accused no 3’s
wife in March and
May 2006, and secondly, that he was identified by
the witness David le Roux as one of the roleplayers involved in the
establishment
of the FPE there.
[139] There is further
aggravation to be found in the fact that accused no 3 was involved,
not only at Volmoed at that
time, but also in the establishment of
the FPE’s at Hercules and Faraday Streets. He was evidently
undeterred by the substantial
fine which was payable in respect of
Foxhole, but forged ahead with the processing of many, many tons of
abalone notwithstanding
his frank acknowledgement in his s105A plea
regarding the ecological and financial harm associated with this
activity. Clearly,
the fine was no more an occupational hazard for
the accused.
[140] Indeed, in later
explaining his plea in that matter to this court Mr Wildschutt
candidly said that initially the
State had offered a fine coupled
with a suspended sentence in relation to the Foxhole prosecution but
that he had refused this
option. Clearly, he realized that at that
stage he could not run the risk of having a suspended sentence
hanging over his head
if he was going to deal in poached abalone
further. In my view, therefore, the moral blameworthiness of Mr
Wildschutt’s conduct
in 2006 is very high.
[141] In her report to the
court in consideration of Mr Wildschutt’s suitability as a
candidate for correctional
supervision Ms Engelbrect noted the
following.
“
He takes
responsibility for his actions, understands and comprehends the
seriousness of his wrongdoings, verbalizes his remorse
and is willing
to be engaging (sic) in therapy in order to improve his social
functioning as well as life skills programs as (sic)
to assist him to
cope and deal with life (sic) situation….”
[142] Ms Klaas-Jolimvaba,
in her separate report had the following to say.
“
6.3
BEHAVIOUR
The accused made bad choices in the
past as he has a previous offense (sic) where abalone was involved.
According to him he learnt
from his past mistakes and decided to
change his behaviour by doing business in wood cutting….
7.1 PREVIOUS CONVICTIONS
The SAP 69 was
not available when we compile (sic) this report, as it was requested
from Gansbaai police station but unfortunately
we did not received
(sic). The accused was
involved in
case (sic) of abalone with his friends and was found guilty. He was
fine (sic) for the conviction. According to him
he learnt from his
mistakes. He bought a truck to do business with wood after his
release from prison.
7.2 CURRENT OFFENCE
The accused alleged the abalone
does not belong to him. He do (sic) not accept responsibility for the
offence…”
[143] When testifying in
mitigation of sentence, Mr Wildschutt was cross examined by the
prosecution in relation to
the allegations suggesting remorse on his
part. His contradictory response thereto demonstrates anything but
contrition. He firstly
turned his back on the plea bargain concluded
in response to the Foxhole arrest, saying he was most definitely not
guilty but had
been advised by his attorney, Mr du Plessis, that a
guilty plea was one way of avoiding the stresses, strains and delays
of a criminal
trial. He initially persisted in this court in
maintaining his innocence in that matter.
[144] But then Mr
Wildschutt unexpectedly demonstrated an apparent frankess to discuss
his past misdemeanours. He told
the court that in about 2002 he was a
driver for an abalone syndicate headed by the same Frank Barends
referred to earlier who
is currently standing trial in this Division
before Mr Justice Erasmus also on abalone related charges. Mr
Wildschut said that
in the course of his association with Barends he
had been involved in a motor car accident near Bonnievale, had been
arrested but
was later acquitted as no abalone was found in his
vehicle. He claims that he was in fact driving a decoy vehicle as
part of the
Barends operation.
[145] After initially
suggesting to the court that this was the incident in which he learnt
from his mistakes, and regretted
what he had done, accused no 3
changed tack and on further questioning by Ms van der Merwe said that
he was actually referring
Ms Klaas-Jolimvaba to the Foxhole arrest.
The mere fact of his arrest there was, he suggested, sufficient to
teach him a lesson
and deter him from any further involvement with
abalone.
[146] The court asked Mr
Wildschutt to clarify the matter. He then said that he relied on both
incidents as demonstrating
that he had learned from his past
mistakes. The first lesson he said he learned was when he became
involved with Mr Barends’
activities. This the court understood
to be an acknowledgment that Mr Wildschutt had been part of an
abalone poaching ring at that
time.
[147] Then, said Mr
Wildschutt, the Foxhole arrest was a further warning and that the
mistake that he made there was
that he had associated with the wrong
people. And then in a most opaque way the accused said that whatever
he may have got up to
in 2006, he had led an exemplary life since
then. Although the temptation to become embroiled in abalone poaching
again was literally
on his doorstep in Gansbaai, Mr Wildschutt
suggested that he had avoided the temptation to do so and invited the
court to make
enquiries from the investigating officer, W/O Potgieter
in that regard.
[148] I regret to say that
I am unable to come to the conclusion that Mr Wildschutt has shown
true remorse in this matter.
Implicit in his evidence is an
acknowledgment that he was involved in abalone smuggling over the
period 2002-2006, and the persistence
of his involvement suggests
that at the time he was prepared to continue with such activities
despite being a family man. Indeed,
as I have said, Ms Wildschutt,
too, seems to have been involved to an extent at least as regards
Volmoed. And, it seems to me that
now the accused is understandably
desparate to avoid incarceration so as to be able to care for his
ailing wife and children.
[149] That then takes us
back to
M’s
case, which requires a court to have regard
to the provisions of s28 of the Constitution and consider the impact
of the childrens’
rights protected therein when imposing
sentence in a criminal matter. There the Constitutional Court
suggested the following guidelines
at para [36].
“
(a)
A sentencing court should find out whether a convicted person is a
primary caregiver whenever there are indications
that this might be
so.
(b) A
probation officer’s report is not needed to determine this in
each case. The convicted person
can be asked for information and if
the presiding officer has reason to doubt the answer, he or she can
ask the convicted person
to lead evidence to establish the fact. The
prosecution should also contribute what information it can; its
normal adversarial
posture should be relaxed when the interests of
children are involved. The court should also ascertain the effect on
the children
of a custodial sentence if such a sentence is being
considered.
(c) If on
the
Zinn
– triad approach the appropriate sentence is
clearly custodial and the convicted person is a primary caregiver,
the court
must apply its mind to whether it is necessary to take
steps to ensure that the children will be adequately cared for while
the
caregiver is incarcerated.
(d)
If the appropriate sentence is
clearly non-custodial, the court must determine the appropriate
sentence, bearing in mind the interests
of the children.
(e)
Finally, if there is a range of
appropriate sentences on the
Zinn
approach, the court must use the paramountcy principle concerning the
interests of the child as an important guide in deciding
which
sentence to impose.”
[150] The Constitutional
Court went on to point out that these guidelines are entirely
consistent with the constitutional
duty of the State to protect its
citizens by diligently prosecuting crime and that the sentence in
such a matter, which must be
approached and a case-by-case basis,
involves questions of context and proportionality. In that regard
there are two important
competing considerations which arise, the
first being the importance of maintaining the integrity of family
care wherever possible.
[151] In addition, said
the court, a further consideration is
“
[39]…..
(t)he duty of the State to punish criminal misconduct. The approach
recommended in para [36] makes plain that a court
must sentence an
offender, albeit a primary caregiver, to prison if on the ordinary
approach adopted in
Zinn
a custodial sentence is the proper punishment. The children will
weigh as an independent factor to be placed on the sentencing
scale
only if there could be more than one appropriate sentence on the
Zinn
approach, one of which is a non-custodial sentence. For the rest, the
approach merely requires a sentencing court to consider the
situation
of children when a custodial sentence is imposed and not to ignore
them.
[40] The tension lies
between maintaining family care wherever possible, on one hand, and
the duty on the State to deal
firmly with criminal misconduct, on the
other. As the
Zinn
triad recognises, the community has a great
interest in seeing that its laws are obeyed and that criminal conduct
is appropriately
prosecuted, denounced and penalised. Indeed, it is
profoundly in the interests of children that they grow up in a world
of moral
accountability where self-centred and antisocial criminality
is appropriately and publicly repudiated. In practical terms, then,
the difficulty is how appropriately and on a case-by-case basis to
balance the three interests as required by
Zinn
, without
disregarding the directory provisions of s 28. This requires a
nuanced weighing of all the interlinked factors in each
sentencing
process. The normative setting for the balancing will be the
intricate interrelationship between ss28(1)(b) and 28(2)
of the
Constitution, on the one hand, and s276 (1) of the CPA, on the
other.”
[152] In the case of the
Wildschutt household I accordingly have regard to the following
factors when considering an
appropriate sentence for accused no 3.
152.1 In light of Ms Wildschutt’s
chronic (and potentially terminal) medical condition, the accused
shares the role of caregiver
in the Gansbaai home. There is evidence
that the neighbours help out from time to time and there are also 2
major children in the
home, both of whom were described by the
accused as responsible and law-abiding young adults.
152.2
The family is in receipt of various State
grants through which its domestic expenditure is augmented.
152.3
In the event that accused no 3 is
incarcerated, a further grant will accrue to the family.
152.4
There are two major children in the home,
both of whom are capable of earning an income so as to contribute to
the family’s
domestic expenses.
152.5
Both
of those major children reside in the home and will be able to attend
to the care of their ailing mother and younger siblings.
152.6
The
family is well known to the local welfare authorities, one of whom in
particular (Badisa) has a satellite office in the town.
152.7
Both Mr and Mrs Wildschutt have extended
families who reside in the Western Cape, and are families to whom the
children can turn
in times of need. Similarly, it is not unreasonable
to infer that members of the extended family might step in of their
own accord
to address any welfare concerns which they might have in
regard to the Gansbaai home.
152.8
Mr Wildschutt owns a house close to the
Tygerberg Hospital. This was formerly their family home when they
resided in Cape Town and
was seadrched during the investigation in
this matter. That house could, no doubt, be utilised by Mrs
Wildschutt and the children,
in particular should the need arise for
her to attend hospital for treatment.
[153] Although Mr
Wildschutt has only been convicted in relation to his activities on
behalf of Syroun during the first
9 months of 2006, he was
nonetheless involved with a substantial amount of live abalone –
232,6 tons with a commercial value
of R58,16m as I have already
indicated. In his case it is an aggravating factor that he has 2
previous convictions arising out
of his arrest at Foxhole Farm and
that, notwithstanding that arrest, he continued with business as
usual. In fact, even after his
arrest in relation to the activities
at Bellville South, Belhar and Volmoed, he continued to deliver
abalone to V&A on behalf
of Syroun.
[154] Mr Wildschutt was
clearly driven by greed since he indicated that he and his wife were
running a remunerative
fish and fresh produce business from their
home in Elsies River which produced sufficient income to enable him
he to allegedly
buy a truck to transport wood, pay the fine arising
out of Foxhole and pay his bail in this matter - initially around
R100 000.
I am of the view that Mr Wildschutt’s moral
blameworthiness is high and that he is deserving of a heavy sentence.
Accused No.4
[155] Tony du Toit is 62
years of age and is divorced with 3 adult children and 4
grandchildren. He lives at Port Edward
in kwaZulu-Natal with his life
partner where he is currently unemployed. He previously held a sales
position at a local furniture
store, and his erstwhile employer
confirmed in writing that such employment is still available to him
should he not be incarcerated.
[156] Mr du Toit did not
give further evidence in this matter but Mr Uijs SC handed up a
pre-sentence report completed
by one S.D.Dladla of the Department of
Correctional Services in KZN. The report confirms that Mr du Toit has
a monitorable address
and is a suitable candidate for correctional
supervision in the event that the court considers that to be an
appropriate form of
sentence. Mr du Toit does not appear to be
possessed with any assets with which to pay a fine.
[157] Mr du Toit has a
string of previous convictions for dishonesty dating back to the
1980’s and one for assault
in December 1998. These convictions,
too, are to be ignored in terms of s271A of the CPA.
[158] As far as the
offences of which he has now been convicted are concerned, we have
found that Mr du Toit was responsible
for processing, on behalf of
Rapitrade, more than 74 tons of frozen abalone during the period Jan
2005 to Sep 2006. This equates
to about 247 tons of live product
valued at around R61,9m. In the circumstances Mr du Toit on his own
was responsible for handling
about 70 % of the TAC for those years.
Mr du Toit’s moral blameworthiness is high in the circumstances
and although he did
not testify in that regard, the correctional
supervision report suggests that Mr du Toit has expressed remorse for
what he did
and that he says that he ahs learnt from his wrongs.
[159] I am prepared to
accept that he is now contrite. Mr du Toit did not hide his
involvement in abalone processing
from the court, yet I suppose it
might be said that he could hardly do so in light of the evidence
which was stacked up against
him after the Durbanville and
Brackenfell raids. In any event, he sought to justify his conduct on
the tenuous basis of a belief
that he acted within the law. I have to
add that, having listened to the explanation offered by Mr du Toit on
the merits, I am
left with the abiding impression that he has taken
the fall for his friend and sometime business associate, Willie van
Rensburg.
The manner in which he attempted to distance Mr van
Rensburg from any knowledge of his abalone facility in circumstances
where
the latter was a major participant in the local abalone and
crayfish export market did not sit comfortably with the court.
[160] It is no pleasant
task to pass sentence on a man in his senior years but the amount of
abalone processed by Mr
du Toit’s FPE is massive. It seems that
when he arrived in the Western Cape from Gauteng in around 2004 he
was in a financial
predicament and that he took to abalone for a
livelihood. But when he did so, he took to it in a big way. At the
rate which he
alleged of R30/kg paid by Richard Chao for his
services, the almost 80 tons which he processed would have brought in
an income
of around R2,4m over about a 20 month period. That equates
to about R120 00 a month. In today’s terms it is a pretty penny
and would have been worth far more 12 years ago.
[161] We know from the
evidence of Jaco Botha that he and his fellow workers at the Kendal
Road FPE were paid well by
Mr du Toit and it is reasonable to infer
that there would have been other production expenses incurred in
relation to that turnover.
Nevertheless, I can only conclude that
accused no 4 too was overtaken by greed for the easy money which
abalone presented. The
consequences of his conduct have had a
significant effect both on the environment and on the communities who
lawfully survive off
the sea. Mr du Toit’s moral
blameworthiness is very high and he too deserves a heavy sentence.
Accused no 5
[162] Koos Liebenberg is
46 yrs old, single and is self-employed as a chef, earning between
R1500 and R2000/day. Like
accused no 2 he has maintained a stern
silence throughout these proceedings but presented the evidence of
his mother in mitigation
of sentence. Ms Liebenberg told the court
that her family suffers from a congenital illness which, in the case
of her son, has
manifested itself in colon cancer. Mr Liebenberg has
already had abdominal surgery for his condition and his long-term
prognosis
is cause for concern. Mr Liebenberg resides with his mother
in Stellenbosch and contributes towards her upkeep. He is not
possessed
of any substantial assets and is not in a position to pay a
fine.
[163] Mr Liebenberg has
only been convicted on one count of contravening Reg 39(1)(a), in
relation to the 1969 units
of frozen abalone found at Brackenfell on
6 October 2006 but his stash of frozen abalone weighed in excess of 2
tons. It seems
that he was in cahoots with the Rapitrade supply line
and in particular accused nos 2 and 4, but little else is known of Mr
Liebenberg’s
involvement in this matter and, in the
circumstances, when compared to his co-accused, his moral
blameworthiness is not high notwithstranding
the large amount of
abalone stored at Brackenfell.
CONSIDERATION OF AN APPROPRIATE
SENTENCE GENERALLY
[164] Having dealt with
the three legs of the
Zinn
triad, I move on to consider what,
in general terms, an appropriate form of sentence in this matter will
be. From what I have already
discussed, it is apparent that none of
the accused is able position to offer to pay a fine in any meaningful
amount, nor did any
of their counsel suggest that they were in a
position to do so.
[165] Counsel for the
defence each submitted that all of the objectives of sentencing could
be achieved in this case
by imposing non-custodial sentences on their
respective clients. In the result, counsel all urged the court to
consider the imposition
of sentences of correctional supervision in
terms of s276(1)(h) of the CPA. As
Terblanche
op cit at 317
points out, correctional supervision is indeed a suitable and
appreciable form of punishment which does not remove
the offender
from the community where he lives and works. It is intended to limit
the freedom of the offender through the imposition
of, inter alia,
house detention and community based service. In terms of s276A such a
sentence must be for a fixed period not exceeding
3 years.
[166] At the same time
counsel for the defence all readily conceded that the offences
involved here are of a serious
nature. In normal circumstances, one
would be cautious about imposing correctional supervision for
offences of such severity, particularly
because of the limited
duration thereof – as I have said for a maximum of 3 years.
[167] The Supreme Court of
Appeal has repeatedly cautioned that in serious cases the personal
circumstances of the offender
will often recede into the background
as the gravity of the offence and the interest of the public in
relation to a suitably severe
punishment come to the foreground.
Retribution and deterrence (both aimed at the accused personally and
towards the members of
society in general) are certainly still very
relevant considerations in our law.
[168] In
S v Swart
2004(2) SACR 370 (SCA) at 378c, Nugent JA referred to cases such
as
S v Nkambule
1993 (1) SACR 136
(A),
S v Mhlakaza and
another
1997 (1) SACR 136
(A) and
S v Di Blasi
1996 (1)
SACR 1
(A), and went on to remark as follows:
“
[12]
What appears from those cases is that in our law retribution and
deterrence are proper purposes of punishment and they
must be
accorded due weight in any sentence that is imposed. Each of the
elements of punishment is not required to be accorded
equal weight,
but instead proper weight must be accorded to each according to the
circumstances. Serious crimes will usually require
that retribution
and deterrence should come to the fore and that the rehabilitation of
the offender will consequently play a relatively
small role.”
[169] And in
S v
Vilakazi
2009 (1) SACR 552
(SCA) at 574 d the same Judge had the
following to say:
“
[58]…
In cases of serious crime the personal circumstances of the offender,
by themselves, will necessarily recede into the
background. Once it
becomes clear that the crime is
deserving
of a substantial period of imprisonment the questions whether the
accused is married or single, whether he has two children
or three,
whether or not he is in employment, are in themselves largely
immaterial to what that period should be… But they
are
nonetheless relevant in another respect. A material consideration is
whether the accused can be expected to offend again. While
that can
never be confidently predicted his or her circumstances might assist
in making at least some assessment.…”
[170] In her address on
sentence Ms van der Merwe referred the court to a number of earlier
superior court decisions
relating to sentences imposed in abalone
poaching matters. I mention them only to give some idea of the
parameters aginst which
the gravity of the present offences must be
judged. In
S v Prinsloo en n ander
2002 (2) SACR 457
(C) at
462g – 463d, Thring J (with the concurrence of Potgieter AJ),
in an appeal involving the possession of 50 abalone
remarked that
contraventions of the MLRA could no longer be regarded as trifling
affairs. The court referred to a number of earlier
decisions in this
Division calling for heavier sentences in circumstances where “
our
natural resources are being depleted daily.”
[171] In the unreported
case of
Kenneth Marthinus v Die Staat
(Case no A570/2001, 12
April 2002), Van Reenen J (with HJ Erasmus AJ concurring) upheld a
sentence imposed by the Magistrate in
Hermanus of 6 months direct
imprisonment for the possession and transportation of 160 abalone in
the Gansbaai area.
[172] In
S v
Packereysammmy
2004(2) SACR 169 (SCA), the Supreme Court of
Appeal, in an appeal which arose out of a conviction in the Caledon
Magistrates’
Court for possession of 6140 units of abalone,
found that a sentence of 18 months imprisonment was not excessive.
And, in
S v Van Dyk
2005(1) SA 35 (SCA) that court confirmed a
sentence of 18 months imprisonment in terms of s276(1)(i) for
possession of 378 abalone.
All of those cases are more than 10 years
old and relate to relatively small quantities of abalone in
comparison to the present
matter. Also, they do not take account of
the significant increase in abalone poaching in the last 10 –
15 years, nor were
the provisions of POCA applicable to those cases.
[173] The State further
drew the court’s attention to the matter of
S v Roberts and
others
2013 (1) SACR 369
(ECP). That matter was a POCA based
abalone prosecution similar in nature to the present matter. It
involved a criminal enterprise
commercially exploiting abalone in the
Port Elizabeth area and concerned a large tonnage of abalone. The
court
a quo,
Chetty J, granted 3 of the 5 accused leave to
appeal their sentences to the Full Bench of the Eastern Cape
Division. That court
(Beshe J with Lowe J and Brooks AJ concurring)
upheld the sentences of Chetty J. The citation above is to the
judgment of Chetty
J in regard to the convictions, while his judgment
on sentence and that of the Full Bench are unreported but copies
thereof were
handed up by the State.
[174] In his judgment on
sentence handed down on 1 March 2013, Chetty J relied extensively on
a research paper placed
before him which emanated from the Dept of
Ichthyology and Fisheries Science at Rhodes University and which
dealt with “
the catastrophic results the relentless poaching
of abalone in the Eastern Cape has had on the marine ecosystem.”
Counsel for the State and defence were in agreement that this
court too could have regard to that report in relation to sentence
in
this matter and I have done so. Suffice it to say that the evidence
regarding environmental degradation which this court has
heard is
borne out in that paper. So too is the evidence regarding the massive
upsurge in abalone poaching over the last 20 years
or so.
[175] In seeking to draw
some comparisons between the present matter and the
Roberts
case
I note the following in respect of the latter.
175.1
The 10 charges related to possession of
abalone for purposes of commercial exploitation over the period
October 2005 to January
2009;
175.2
The charges involved 25914 units and a
further 8130 kg (8.13 tons) of abalone, all of which appears to have
been dried; and
175.3
The abalone was harvested in the Port
Elizabeth area, dried there and transported by road through the Free
State and Mpumalanga
to Mozambique, from where it was exported to the
Far East.
[176] The sentences
imposed by Chetty J ranged from 18 months, 2 years and 8 years to 18
years direct imprisonment,
while 2 of the accused received fully
suspended prison sentences. The first accused, Peter Michael Roberts,
who received a sentence
of 18 years imprisonment was convicted of
contravening both s2(1)(e) and (f) of POCA and had a previous
conviction for possessing
abalone for commercial purposes, as did the
accused who was sentenced to 8 years imprisonment.
[177] Assuming similarly
that the dried abalone in that matter represents 30% of the weight of
shucked/frozen abalone,
the tonnage of 8,13 dried product in that
matter represents approxiamately 27 tons of frozen abalone. To that
must be added the
25914 dried units which would have weighed around
777kg. Applying the 30% formula to that figure one finds that there
were 2590kg
or 2,5 tons of frozen abalone giving a grand total of
around 30 tons of frozen abalone, or about 100 tons of live abalone.
In the
result, the total mass of the abalone handled in the
Roberts
case over a period of 40 months pales into relative insignificance
when compared with the more than 400 tons processed in this
case in
half that time.
[178] Clearly, this case
is more serious than the
Roberts
matter. It involves a far
bigger operation, handling larger volumes of abalone over a shorter
period of time. It goes without saying
that the monetary value of the
abalone involved is higher too. Nevertheless, I believe that the
judgment of Chetty J, (confirmed
as it was on appeal by Beshe J)
provides a useful basis for considering the appropriate sentences in
this matter. In considering
such sentences, I have regard also to the
fact that POCA matters involving racketeering have, in the main,
attracted heavy sentences
from our courts. See, for example, in this
regard
S v Eyssen
2009 (1) SACR 406
(SCA),
S v Dos Santos
2010 (2) SA 382
(SCA),
S v Ndebele
[2011] ZAGPJHC 42 (14 March
2011),
Jwara v S
[2015] ZASCA 33
(25 March 2015). The
Legislature has determined that the FPE charges too merit fairly
stiff sentences.
[179] At the end of the
day, however, each case must be considered on its own merits –
there being no blueprint
for sentencing in matters such as these.
And, within the case itself, each accused must be considered
individually, with due regard
being had for his particular
involvement in the affairs of the enterprise, his moral
blameworthiness and for the existence (or
absence) of a criminal
record.
[180] There is one general
mitigatory factor which must apply to all the accused. This case has
hung like a dark cloud
over their heads for more than 11 years. It
took 8 years before the trial could commence for the various reasons
I referred to
earlier, some of which are attributable to the
pre-trial stances and challenges adopted by some of the accused. And
once it commenced,
the hearing of the matter has stretched over a
period of more than three and a half years. During that time the
accused have been
in court over protracted periods of time and their
earning capacities, such as they now are, have been compromised
accordingly.
All have complained of the depressing effect which the
uncertainty attached to this litigation has had on them. I believe
that
their sentences fall to be ameliorated somewhat in the light
thereof.
[181] As I have said,
counsel for the defence all asked for non-custodial sentences to be
imposed on the accused. The
State asked that all of the accused, save
for no 5, be sentenced to direct imprisonment. In the light of that
which I have set
out above I agree that, other than in respect of
accused no 5, direct imprisonment is the only suitable sentence for
crimes of
this gravity.
[182] In respect of
Accused no 1, Ms van der Merwe, when asked by the court whether a
sentence of imprisonment might
be imposed in terms of s276(1)(i) of
the CPA, fairly conceded that such a sentence would not be without
merit in light of the fact
that Mr Miller’s involvement with
the enterprise was tempered by his mens rea having been found to be
in the form of dolus
eventualis and that his activity only involved
the supply of pilchards for a period of about 12 months. He is also a
person with
a strong sense of public spiritedness.
[183] Finally, counsel for
the defence asked the court to bear in mind that there might be a
duplication of criminal
conduct in that those who ran illegal FPE’s
also had to possess the abalone to achieve these ends, and that the
POCA charges
are based on the very existence of predicate offences. I
agree with the priciples underlying those submissions. In my view,
the
cumulative effect of the sentences imposed can be addressed by
applying the provisions of s280 of the CPA and ordering sentences
to
run concurrently where appropriate.
RULING ON THE SECTION 204 WITNESSES
[184] The State relied
heavily for the convictions in this case on witnesses warned in terms
of s204 of the CPA. That
section warrants immunity from prosecution
for witnesses who answer potentially self incriminatory questions
frankly and honestly.
During argument the court indicated to the
prosecution some reservations about the manner in which Adam
Wildschutt and Salvin Africa,
the State’s key s204 witness,
answered questions. They were not the best of witnesses in my view
but at the end of the day
the court is satisfied that all of the s204
witnesses are entitled to their indemnities. The court was informed
from the bar that
the witness David le Roux has since died and
accordingly his discharge is no longer necessary.
[185]
In the result it is hereby ordered, in terms of
s204(2)(b)
of the
Criminal Procedure Act, that
the following State witnesses are
discharged from prosecution in relation to this matter-
·
Salvin Africa
·
Adam Wildschutt
·
Lydia Wildschutt
·
Jacobus Botha
·
Percival Clack
·
Harold Bauchop.
THE SENTENCES WHICH ARE IMPOSED
ARE AS FOLLOWS
[186]
ACCUSED NO 1 ,
PHILLIP JAMES MILLER
COUNT 2
(Contravening
s2(1)(e)
of the
Prevention of Organised Crime Act, 121 of 1998
– participation
in the affairs of an enterprise which conducts its affairs through a
pattern of racketeering activity)
4 years imprisonment in terms of
s276(1)(i)
of the
Criminal Procedure Act, 51 of 1977
.
COUNTS 15, 16, 17, 19, 21, 22, 23,
25, 26, 27, 28, 29, 30, 31 and 32
(Contravening Reg 39(1)(a) of the
Regulations as promulgated under Government Notice R1111 and
published in Government Gazette 19205
of 2 September 1998 –
unlawful possession of abalone for commercial purposes)
6 months imprisonment in terms of
s276(1)(i)
of the
Criminal Procedure Act on
each count all of which
is suspended for 5 years on condition that the accused is not
convicted of any contravention of the
Prevention of Organised Crime
Act, 121 of 1998
, or any offence arising from the provisions of the
Marine Living Resources Act, 18 of 1998
, and committed during the
period of suspension.
[187]
ACCUSED NO 2 ,
WILLIE JACOBUS VAN RENSBURG
COUNT 2
(Contravening
s2
(1) (e) of the
Prevention of Organised Crime Act, 121 of 1998
- participation in the
affairs of an enterprise which conducts its affairs through a pattern
of racketeering activity)
8 years imprisonment
COUNTS 34, 35, 38, 39, 41, 42, 43,
48, 105, 107 and 115
(Contravening Regulation 39(1)(a) of
the Regulations as promulgated under Government Notice R1111 and
published in Government Gazette
19205 of 2 September 1998 –
unlawful possession of abalone for commercial purposes)
8 months imprisonment on each count
COUNT 114
(Contravening
s18(1)
of the
Marine
Living Resources Act, 18 of 1998
– unlawfully operating an
unlicensed fish procecessing establishment)
4 years imprisonment.
The total period of imprisonment
therefore is 19 years and 4 months.
In terms of
s280
of the
Criminal
Procedure Act, 51 of 1977
, it is ordered that each of the sentences
on counts 34, 35, 38, 39, 41, 42, 43, 48, 105, 107, 114 and 115 is to
run concurrently
with the sentence on count 2.
The effective sentence is therefore
8 years imprisonment.
[188]
ACCUSED NO 3,
ADRIAAN GEVAN WILDSCHUTT
COUNT 2
(Contravening
s2(1)(e)
of the
Prevention of Organised Crime Act, 121 of 1998
– participation
in the affairs of an enterprise which conducts its affairs through a
pattern of racketeering activity)
15 years imprisonment
COUNTS 46, 47, 50, 51,100, 102,
104, 106, 108 and 109
(Contravening
Regulation 39(1)(a)
of
the Regulations as promulgated under Government Notice R1111 and
published in Government Gazette 19205 of 2 September 1998 –
unlawful possession of abalone for commercial purposes)
8 months imprisonment on each count
COUNTS 99 and 101
(Contravening
s18
(1) of the
Marine
Living Resources Act, 18 of 1998
– unlawfully operating an
unlicensed fish procecessing establishment, with the 2 counts being
taken together for the purposes
of sentence)
5 years imprisonment
COUNT 103
(Contravening
s18
(1) of the
Marine
Living Resources Act, 18 of 1998
– unlawfully operating an
unlicensed fish procecessing establishment)
5 years imprisonment
The total period of imprisonment
therefore is 31 years and 8 months.
In terms of
s280
of the
Criminal
Procedure Act, 51 of 1977
, it is ordered that each of the sentences
on counts 46, 47, 50, 51, 99, 100, 101, 102, 103, 104, 106, 108 and
109 is to run concurrently
with the sentence on count 2.
The effective sentence is therefore
15 years imprisonment.
[189]
ACCUSED NO 4,
TONY PETER DU TOIT
COUNT 2
(Contravening
s2(1)(e)
of the
Prevention of Organised Crime Act, 121 of 1998
– participation
in the affairs of an enterprise which conducts its affairs through a
pattern of racketeering activity)
15 years imprisonment
COUNTS 14, 15, 16, 17, 19, 21,
22, 23, 25, 26, 27, 28, 29, 30, 31, 32, 34, 35, 38, 39, 41, 42, 43,
48, 105, 107, 115 and 116
(Contravening
Regulation 39(1)(a)
of
the Regulations as promulgated under Government Notice R1111 and
published in Government Gazette 19205 of 2 September 1998 –
unlawful possession of abalone for commercial purposes)
6 months imprisonment on each count
COUNT 114
(Contravening
s18(1)
of the
Marine
Living Resources Act, 18 of 1998
– unlawfully operating an
unlicensed fish procecessing establishment)
5 years imprisonment
The total period of imprisonment
therefore is 34 years.
In terms of
s280
of the
Criminal
Procedure Act, 51 of 1977
, it is ordered that each of the sentences
on counts 14, 15, 16, 17, 19, 21, 22, 23, 25, 26, 27, 28, 29, 30, 31,
32, 34, 35, 39,
41, 42, 43, 48, 105, 107, 114, 115 and 116 is to run
concurrently with the sentence on count 2.
The effective sentence is therefore
15 years imprisonment.
[190]
ACCUSED NO 5,
JOHANNES EMIL LIEBENBERG
COUNT 116
(Contravening Regulation 39(1)(a) of
the Regulations as promulgated under Government Notice R1111 and
published in Government Gazette
19205 of 2 September 1998 –
unlawful possession of abalone for commercial purposes)
1 year imprisonment fully suspended
for 5 years on condition that the accused is not convicted of any
contravention arising from
the provisions of the
Marine Living
Resources Act, 18 of 1998
and committed during the period of
suspension.
GAMBLE,
J