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[2018] ZAWCHC 58
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Du Toit and Others v Provincial Minister of Environmental Affairs and Development Planning: Western Cape and Others (14275/16) [2018] ZAWCHC 58; [2018] 3 All SA 532 (WCC); 2019 (1) SACR 311 (WCC) (24 May 2018)
Republic
of South Africa
IN THE
HIGH COURT OF SOUTH AFRICA
[WESTERN
CAPE DIVISION, CAPE TOWN]
Case
No: 14275/16
In
the matter between:
FRANCOIS
DU
TOIT
First Applicant
JACOBUS
LE ROUX
MOCKE
Second Applicant
MANFRED
OEHL
Third Applicant
and
PROVINCIAL
MINISTER OF
ENVIRONMENTAL
AFFAIRS AND
DEVELOPMENT
PLANNING: WESTERN CAPE
First Respondent
NATIONAL
MINISTER OF ENVIRONMENTAL
AFFAIRS
Second Respondent
WESTERN
CAPE NATURE CONSERVATION
BOARD
Third Respondent
DIRECTOR
OF PUBLIC PROSECUTIONS:
WESTERN
CAPE
Fourth Respondent
JUDGMENT
DELIVERED: 24 MAY 2018
LE
GRANGE, J
:
Introduction:
[1]
This matter arose as a result of the alleged illegal hunting of two
kudus during the night in December 2014, in the Karoo near
Merweville
and the possession of a badly injured steenbok. The hunting of wild
animals in the Western Cape, including species like
kudu and
steenbok, is regulated by the Nature Conservation Ordinance
[1]
(“the Ordinance”). The hunting season for Kudu in 2014
was from the period 1 May 2014 to 31 August 2014 with a daily
bag
limit of one kudu
[2]
.
Seemingly, no proclaimed hunting existed for steenbok in 2014 which
implied that the hunting of steenbok at any time during the
year
required a permit.
[2]
Night hunting, and in particular with the aid of a spotlight, was
also prohibited at the time unless a hunter(s) was issued
with a
Certificate of Adequate Enclosure (CAE)
[3]
.
[3]
Officials of the Third Respondent (“Pietersen and Jullies”)
stopped the Applicants who were driving in two separate
vehicles on a
public road and were requested to produce the permits for their night
hunting. Pietersen and Jullies made use of
a flash and or torch light
(“the torch”) to assist in illuminating the night time
darkness.
[4]
The Applicant are now adamant that Pietersen and or Jullies, when
they made use of the torched light to visually inspect and
to shine
it through the window (s), of the vehicle(s), conducted an
unreasonable search and a violation of the right to privacy.
The
freshly hunted kudus, car battery and spotlights were in public sight
on the back of the one vehicle: a Toyota Land Cruiser
(“Land
Cruiser”). The steenbok was in the back of the second vehicle,
a Toyota Hilux bakkie (“Hilux”).
The hunting rifles were
behind the seat inside the cabin of the Hilux. It was open and
clothed only in the darkness. The illumination
of the torch light
made it easily visible from outside the vehicle where Jullies and
Pietersen were standing.
Background
Facts
:
[5]
In the founding affidavit of the First Applicant (“Du Toit”),
the factual matrix underpinning the Applicants’
case can be
summarised as follows:
In
the early hours of the morning of 12 December 2014 the Third
Applicant (“Oehl”) who at the time was 16 years old,
drove the Land Cruiser. His friend, a young girl of similar age was
with him sitting in the passenger seat.
[6]
According to Du Toit, they were on their way in his Land Cruiser from
his farm Grootfontein to the farm Fonteintjie. Whilst
driving on the
road that leads from Merweville to Beaufort West, Pietersen and
Jullies stopped the Land Cruiser.
[7]
Oehl was thereafter confronted and questioned where he came from by
Pietersen and Jullies. In the process the interior of the
vehicle was
inspected by shining a torch into the cabin. Pietersen and or Jullies
thereafter proceeded to inspect the back of the
vehicle (the
load-area) by torchlight and in the process, found the two kudu
carcasses. Upon further inspection of the load-area,
the two
spotlights and a battery (“lighting equipment”) was
found.
[8]
According to Du Toit, the search and inspection, which led to the
discovery of the carcasses and the lighting equipment, took
place
without the permission or consent of Oehl.
[9]
Du Toit further recorded that he and the Second Applicant (“Mocke”)
were in the Hilux and were driving behind Oehl.
They arrived at the
scene where Oehl had been stopped. The Hilux was brought to a
standstill. Mocke and himself alighted in order
to enquire what was
going on.
[10]
According to Du Toit, whilst Pietersen was in conversation with Mocke
and him, Jullies proceeded to the Hilux and conducted
a search
thereof by shining a torched light into the cabin whereupon the two
hunting rifles, which were located in the space behind
the driver’s
seat, were illuminated and discovered. The injured steenbok was also
found in the back of the vehicle. According
to Du Toit, the steenbok
was accidently hit by the Hilux and it was decided to take the
injured animal home rather than to leave
it to die next to the road.
[11]
Du Toit further recorded that the warrantless search was conducted
without their permission and as a result the two kudu carcasses,
the
lighting equipment, two rifles and the injured steenbok were now used
as evidence in the pending criminal trial against them.
[12]
The Applicants were thereafter summonsed to appear in the local
magistrate court. A request, in the form of written
representations, was thereafter made by the Applicants’ counsel
to the Director of Public Prosecutions, in the Western Cape
(“DPP”).
The nub of the request was for the NDPP to consider withdrawing all
the charges against the Applicants as
a result of the constitutional
difficulties with sections 21(1)(f)-(j) of the Ordinance and the fact
that the Applicants will be
challenging the admissibility of the
evidence obtained by the officials on the night in question.
Apparently this request was denied
by the DPP which resulted in the
current matter.
[13]
The Applicants further relied upon a judgement delivered by the Full
Court of this division
[4]
(to which I will return later) for the proposition that the search
and seizure provisions in the Ordinance lack constitutional
muster
and it would be in the interest of justice that the impugned
provisions be declared invalid and unconstitutional.
[14]
The events of the night of 11 December 2014 leading into the
early hours of the morning of 12 December 2014 are described
in
an affidavit by Pietersen, a nature conservation officer. Affidavits
were also filed by Theresa van der Westhuizen (Van der
Westhuizen),
the manager to which he reports; as well as Meyer Jullies (Jullies),
the officer who accompanied him on the patrol
which led to the
apprehension of the Applicants. The latter affidavits by Van der
Westhuizen and Jullies were filed in the criminal
proceedings and
were not initially requested by the Applicants in terms of Uniform
Rule 35(12). Paul Gildenhuys, who is the
programme manager of
the Biodiversity Crime Unit of the Third Respondent, also filed an
affidavit in response to the application.
[15]
According to Pietersen, during the early part of December 2014,
Van der Westhuizen received information from an unknown
person who
informed her about the illegal hunting of kudus at night in the
Merweville district. The information received lacked
specifics as
there was no confirmation of the precise location, the time, date or
the names of the persons who were alleged to
be involved, apart from
the allegation that the hunting would be at night and obviously out
of season.
[16]
As a result of the information, night patrols were introduced. No
search warrant was obtained due to the paucity of the information.
At
about 22h00 on 11 December 2014, whilst their vehicle was
parked at a crossing in a public road, they observed a spotlight
that
moved repeatedly back and forth across the veld in the distance.
[17]
According to Pietersen, the use of a spotlight in this manner was a
common occurrence during illegal night hunting. The spotlight
was
observed for approximately 45 minutes. Thereafter the spotlight
disappeared. They drove along the Merweville road in
the direction of
Merweville. However, they did not see the spotlight again and after
about 5 kilometres they decided to turn around
and drive back to the
crossing.
[18]
They stood next to their patrol vehicle on the side of the road with
its headlights on. A vehicle approached them from the
same direction
where they observed the spotlight earlier. They waited for the
vehicle and decided to stop the vehicle. When
the vehicle came to a
complete standstill, they noticed that it was a Land Cruiser with an
open load bed. The Third Applicant (“Oehl”)
who at the
time was 16 years old was driving the vehicle. A friend of Oehl’s,
a girl of similar age, was sitting in the passenger
seat.
[19]
Pietersen, whilst standing close to the driver’s side of the
vehicle, observed the horns of a kudu protruding from the
back of the
Land Cruiser. The horns were clearly visible from where he was
standing. He then looked to the back of the Land
Cruiser and observed
two kudu carcasses lying on the back of the vehicle in open and plain
view.
[20]
It was evident to Pietersen that the Kudus were shot recently as the
carcasses were still warm. Two spotlights and a battery
(similar to
those used in motor vehicles) were also clearly visible in the back
of the Land Cruiser.
[21]
According to Pietersen there was no need to search the vehicle as the
carcasses, spotlights and car batteries were in open
public view. He
then enquired whether they had the necessary permits to hunt at
night. Oehl referred him to the First Applicant
(“Du Toit”)
who is also his grandfather. Du Toit followed in the Hilux with the
Second Applicant (“Mocke”).
[22]
Pietersen further stated that both Oehl and his friend remained
inside the vehicle as none of the Land Cruiser’s doors
were
opened at any stage. There was also no need to request
permission to search the Land Cruiser and the kudus, spotlights
and
battery, remained on the back of the Land Cruiser.
[23]
When the Hilux arrived the vehicle was stopped. Both Du Toit
and Mocke alighted and approached Pietersen and Jullies.
[24]
Pietersen then enquired about the kudus that were found at the back
of the Land Cruiser. Du Toit apparently stated that
he hunted
the kudus on his farm, Grootfontein. After further enquiries it
became evident that the Applicants did not possess any
of the
required permits to have hunted the kudus at night.
[25]
In the meantime, whilst Pietersen interacted with Du Toit and Mocke,
Jullies walked towards the Hilux with a torch. He then
called
Pietersen. The Hilux bakkie was a so-called 1½ cab
bakkie with a fairly large area between the seats and
the back of the
cabin. Jullies by using the torch to illuminate the night time,
observed the two hunting rifles laying in
plain view in the area
behind the seats of the bakkie. He pointed these out to
Pietersen, who also observed the two hunting
rifles through the small
rear side window of the Hilux bakkie. The hunting rifles were
in plain view and were not concealed
or enclosed in rifle bags.
[26]
Mocke then told Pietersen that he was the owner of the Hilux bakkie
and that the rifles belonged to him and Du Toit.
Pietersen
further observed a steenbok lying in plain sight on the load bed of
the Hilux bakkie. The steenbok was badly injured,
and Pietersen was
informed that the steenbok had been hit by the bakkie and that they
decided to picked it up and loaded it on
the back of the bakkie.
[27]
According to Pietersen there was no need to conduct a search of the
Hilux as the steenbok and rifles were in plain sight. The
Applicants
were then informed to accompany them to the Police Station.
According to Pietersen the Applicants were not arrested
at the scene
and it was only after they handed the matter to the police that the
firearms, the spotlights, the battery and the
carcases were seized by
the police as evidence.
[28]
Gildenhuys also recorded that according to the Third Respondent’s
records, a CAE permit was not issued to hunt at night
on the farm(s)
of Du Toit. According to Geldenhuys his department was fully aware of
the Constitutional Court decision
[5]
that legislation which permits warrantless search’s for the
purpose of obtaining evidence in criminal prosecutions is
inconsistent
with the constitutional right to privacy. In that regard
Gildenhuys recorded a process that was embarked upon by the Third
Respondent
to revise the Ordinance to bring it in line with the
Constitution and the National environmental law in November 2003. To
this
end, a chapter in CapeNature’s Peace Officer’s
manual, dealt explicitly with search and seizure provisions including
a paragraph that that sections 21(1)(f)-(j) of the Ordinance do not
pass Constitutional muster and that officials must not rely
upon it
to search private property. According to Gildenhuys, in the present
instance, a search warrant was not required as the
items found and
seized were openly displayed. For this proposition, Gildenhuys also
relied on the dictum in Goldberg
[6]
.
It was further stated by Gildenhuys that it is still open to the
magistrate to decide whether the evidence was unconstitutionally
obtained in terms of section 35(5) of the Constitution, and whether
such evidence should be admitted or not. According to Gildenhuys
if
the magistrate decides to admit the evidence, even on the premise
that the enabling legislation is unconstitutional, then it
is not
necessary for this to Court decide the constitutional attack.
The
Relief:
[29]
The relief sought by the Applicants are essentially threefold. The
First is whether the conduct of the nature conservation
officers, in
conducting their investigation amounted to a search and seizure
operation that should be declared inconsistent with
the Constitution
and invalid. Secondly, whether sections 21(1)(f) to (j) of the
Ordinance, are inconsistent with the Constitution
of the Republic of
South Africa, 1996 (“Constitution”) and, accordingly
should be declared to be invalid. Lastly, if
an order of invalidity,
is granted whether it should operate retrospectively from 1 December
2013.
Counsel
and argument:
[30]
Mr. A La Grange, SC assisted by Mr. PA Botha appeared on behalf of
the Applicants. It was argued on behalf of the Applicants
in the main
that; the offending sections in the Ordinance are indeed
unconstitutional and the failure and delay by the Respondents
to
remove the unconstitutional provisions are unacceptable; the sections
of the Ordinance not under attack do not assist the Respondents
in
their case as the Respondents officials never intended to obtain a
search warrant; Jullies’s action and conduct on the
night in
question amounted to a targeted search which was in flagrant
disregard of the Applicants’ constitutional right to
privacy;
the confiscation of the items seized, in particular the firearms and
steenbok which are evidence in the pending trial,
eventuated as
direct result of the illegal search and that the Applicants as a
result have the necessary standing to bring the
application. It was
further contended that the order of invalidity must be declared
retrospective from 1 October 2013 as the Respondents
officials,
despite their knowledge that the offending provisions in the
Ordinance lacks constitutional muster, persisted to use
the draconian
powers bestowed upon it by the impugned provisions.
[31]
Mr. H J De Waal assisted by Ms Y Isaacs appeared on behalf of the
Respondents. The principal submissions advanced by them
were
the following: The Respondents do not insist that the relevant
provisions in provisions (f)–(j) of section 21(1) of the
Ordinance were constitutionally valid and have accepted that the
provisions relating to the search and seizure provisions in the
Ordinance were too broad and thus constitutionally compromised. It
was however, strongly contended that the constitutional challenge
by
the Applicants should not be entertained and be avoided for the
following reasons; firstly because the Applicants failed in
terms of
section 38 of the Constitution to show they have standing to
challenge the Ordinance as none of their right(s) in terms
of the
Bill of Rights had been infringed or threatened; secondly, the
Applicants failed to show that the nature conservation officials
conducted a search which violated their reasonable expectation of
privacy. (In support of this contention reliance was also placed
on
certain United States and Canadian jurisprudence to which I will
return.) Lastly, it was contended by the Respondents that even
if
there was a declaration of invalidity, such declaration should not
operate with retrospective effect.
Preliminary
Issues:
[32]
At the hearing the Applicants launched an application in terms of
Rule 6(5)(g) of the Uniform Rules of Court, for Pietersen
to be
subjected to cross-examination in order to test the veracity of his
version of events. This was opposed by the Respondents.
The
Respondents also applied for an order that an affidavit of the state
law advisor and Jullies be admitted into evidence.
[33]
The latter application was not seriously opposed by the Applicants.
According to the state law advisor, Jullies was dismissed
from the
employ of the Third Respondent on 26 April 2016, six months before
the filling of any answering affidavit. To this end
it was initially
decided not to trace Jullies to file a confirmatory affidavit as
Pietersen was at all times present with Jullies
on the night in
question. Jullies was later traced but reluctant to provide
assistance to file a confirmatory affidavit due to
his dismissal. The
request was to accept Jullies affidavit in the criminal matter which
was deposed to on 12 December 2014 soon
after the incident which
essentially confirms in essence Pietersen’s version.
[34]
The affidavit was deposed to by Jullies on 12 December 2014 at
approximately 3h45 the morning. In my view there could be no
prejudice to the Applicants’ case as whole if the affidavit is
accepted into evidence as the Applicants did have an opportunity
to
file an affidavit in reply. It follows that the affidavits were
allowed into the record as evidence.
[35]
In terms of Rule 6(5)(g), a court has a wide discretion in regard to
the hearing of oral evidence where an application cannot
be properly
decided on affidavit. Where it is apparent and palpably obvious that
good reason exist that an injustice will occur,
a court would be more
lenient to exercise its discretion and allow a deponent to an
affidavit to be cross-examined.
[7]
[36]
In the present instance, no such good reason existed to test the
veracity of Pietersen’s version by cross-examination.
In fact,
on the papers filed of record, although there may be some disputes of
fact, the bulk of his version is uncontroversial
and common cause.
For instance, it is not in dispute that the Applicants were stopped
on a public road; the powers, on which Pietersen
relied in the
Ordinance to stop and investigate, are not subject to any challenge;
whilst Pietersen were talking to Du Toit and
Mocke, Jullies walked
out on his own to the Hilux which stop a few metres away, Jullies had
a torch which he used to shine through
the vehicle’s windows;
the rifles were inside the closed vehicle and only covered in the
night time darkness; the rifles
were only observed when it was
illuminated by the torched; the steenbok was on the back of the Hilux
uncovered and in open sight
when illuminated with the torchlight.
[37]
It is further common cause that the impugned provisions of sections
21(1)(f)-(j) of the Ordinance may be constitutionally comprised,
but
the central question in law remains whether the use of the torchlight
to illuminate the night and the subsequent observing
of the evidence
which now forms the subject of a criminal trial, amounted to breach
of constitutional right to privacy.
[38]
It is now trite in our law that motion proceedings, unless concerned
with interim relief, are all about the resolution of legal
issues
based on common cause facts. Unless the circumstances are special
they cannot be used to resolve factual issues because
they are not
designed to determine probabilities. It is well established under the
Plascon-Evans
rule that where in motion proceedings disputes of fact arise on the
affidavits, a final order can be granted only if the facts
averred in
the applicant’s affidavits which have been admitted by the
respondent together with the facts alleged by the latter,
justify
such order. It may be different if the respondent’s version
consists of bald or un-creditworthy denials, raises fictitious
disputes of fact, are palpably implausible, far-fetched or so clearly
untenable that the court is justified in rejecting them merely
on the
papers.’
[8]
[39]
In my view this is not a matter where the application cannot properly
be decided on affidavit. In fact, Pietersen’s version
does not
consist of ‘
bald
or un-creditworthy denials, raises fictitious disputes of fact, are
palpably implausible, far-fetched or so clearly untenable
that the
court is justified in rejecting them merely on the papers’
.
It follows that where there is a dispute of fact the Respondents
version is to be accepted. The application in terms of s 6(5)(g)
could as a result not succeed.
Constitutional
Challenge:
[40]
Section 38 of the Constitution provides as follows:
“
Enforcement
of rights
Anyone listed in this section has
the right to approach a competent court, alleging that a right in the
Bill of Rights has been
infringed or threatened, and the court may
grant appropriate relief, including a declaration of rights.
The persons who may approach a
court are-
(a)
anyone acting in their own interest;
(b) anyone
acting on behalf of another person who cannot act in their own name;
(c)
anyone acting as a member of, or in the interest of, a group or class
of persons;
(d) anyone
acting in the public interest; and
(e)
an association acting in the interest of its members.”
[41]
From these provisions flow two requirements: firstly, there must be
an allegation that a right in the Bill of Rights has been
infringed
or is threatened and secondly, persons such as the Applicants, who
approach this Court in their own interest, must have
a sufficient
interest in the remedy they seek.
[42]
The relevant sections of the Ordinance, which included the impugned
sections 21(1)(f) to (j), provide as follows:
“
(1)
A nature conservation officer may, subject to any limitation imposed
in terms of section 25(2)-
(a)
demand
from any person performing or whom he or she reasonably suspects of
having performed any act for the performance of which
a licence,
permit, exemption, order or the written permission of the owner of
land or of any other person necessary under any provision
of this
ordinance the production of such licence, permit, exemption, order or
permission;
(b)
where
any person has performed or he or she reasonably suspects any person
of having performed on any land any act which may only
be performed
on land in respect of which a certificate of adequate enclosure has
been issued under section 35(4)(b), demand from
the owner of such
land the production of such certificate;
(c)
demand
from any person whom he or she reasonably suspects-
(i)
of
having committed an offence under this ordinance, or
(ii)
will
be able to furnish evidence in connection with an offence committed
or alleged to have been committed under this ordinance,
the name and
address and any other information necessary for the identification of
such person;
(d)
question
any person who in his or her opinion may be able to furnish any
information required by him or her in connection with the
enforcement
of any provision of this ordinance and for that purpose demand that
any vehicle, vessel, boat, craft, float, aircraft
or other means of
conveyance be brought to a standstill;
(e)
demand
from any person who is required under this ordinance to keep any
book, statement or invoice;
(f)
conduct
any investigation he or she considers necessary in order to ascertain
whether any provision of this ordinance is being complied
with by any
person and may for such purpose without warrant and without
permission enter upon any land, premises, vehicle, place,
building,
tent, vessel, boat, craft, float, aircraft or other means of
conveyance and there carry out such inspection and investigation
as
may be necessary including an inspection or investigation of any
container or other thing found thereon or therein;
(g)
in
the course of any inspection or investigation in the exercise of his
or her powers and the performance of his or her functions
under this
ordinance, without warrant and without permission, demand that any
vehicle, vessel, boat, craft, float, aircraft or
other means of
conveyance be brought to a standstill and be kept stationary until he
or she has searched it;
(h)
without
warrant and without permission, enter upon any land, premises,
vehicle, vessel, boat, craft, float, aircraft or other means
of
conveyance and there conduct a search if he or she reasonably
suspects that there is thereon or therein anything which-
(i)
is used or has been used in;
(ii) forms
or has formed an element in, or
(iii) will
afford evidence of, the commission of any offence under this
ordinance;
(i)
without
warrant seize anything which -
(i)
may, in his or her opinion, afford evidence of the commission of an
offence under this ordinance,
or
(ii)
he or she reasonably suspects is being or has been used for the
conveyance of any fauna or flora in
respect of which an offence has
been committed under this ordinance, or
(j)
without
warrant seize and confiscate any wild animal which is found in
possession of or being kept in captivity by any person, if-
(i)
such person fails on demand by such officer to produce a permit
authorising such possession or
keeping, or
(ii)
such animal is in possession of or being kept in captivity by such
person contrary to any condition
specified in a permit produced by
such person authorising such possession or keeping.”
[43]
In the present instance, the Applicants are largely justifying their
challenge against the relevant provisions of the Ordinance
as a
result of the significance of the items found and seized on the night
in December 2014 in the pending criminal proceedings.
On the papers
filed of record it appears that the items found and seized formed the
basis of the prosecution’s case and the
outcome of the criminal
trial is largely dependent upon the admissibility or otherwise of the
said items.
[44]
The declaration of constitutional invalidity of sections 21(1)(f)–(j)
would as a result only assist the Applicants if
the impugned sections
in the Ordinance formed the only statutory authority upon which the
nature conservation officials have acted
to seize the items found.
[45]
The question that now arises is whether the Applicants have firstly
established that Pietersen and or Jullies had infringed
or threatened
their constitutional right to privacy and secondly that they have a
sufficient interest in the remedy they seek.
Constitutional
Avoidance.
[46]
The general principle in our law is that where it is possible to
decide any case, whether civil or criminal, without reaching
a
constitutional issue, that is the course which should be followed
[9]
.
An important consideration is whether such challenge (as in this
case) presents a live issue that needs a resolution, as a High
Court’s declaration of constitutional invalidity would have no
effect unless confirmed by the Constitutional Court.
[10]
[47]
In my view, the Applicants constitutional challenge for the reasons
that will follow cannot be entertained. In the first instance,
Pietersen and Juillies were entitled in terms of s 21(1)(a) and (e)
of the Ordinance, the constitutional validity of which is not
attacked, to be on the public road. They were further entitled to
stop the Applicants or any other person for that matter and to
have
asked them to produce the documents necessary for the lawful
possession of any items relating to fauna (wild animals) and
or flora
(endangered plants) as defined in the Ordinance under their control
that were in open display or in plain view.
[48]
The plain view doctrine was fully discussed in
Goldberg
v Director of Public Prosecutions, Western Cape
[11]
.
The doctrine as applied in the United States and Canadian
jurisprudence is accepted as being, in appropriate circumstances, an
exception to the requirement of a warrant. In order for the doctrine
to apply the United States and Canadian courts held that the
police
officials must have gained entry or be at the premises lawfully
before they may seize items in plain view.
[49]
In the
Goldberg v Director of Public Prosecutions, Western Cape
matter the Full Court held the following at para 40:
“
If
I were to apply the plain view doctrine in the present case, I would
conclude that the officials were lawfully in the public
area of the
Gift Shop premises for making the enquiries contemplated in
s 21(1)(a) and (e) of the Ordinance. When the required
documents
could not be produced, they were entitled to seize the ivory which
was in plain view. However, I do not think it is necessary
to rely on
a doctrine developed elsewhere. It suffices, applying the principles
of our own law, that there was no reasonable expectation
of privacy
in relation to the items displayed in the shop; that the officials
were entitled to enter the public part of the premises
to make
enquiries pursuant to statutory provisions the constitutionality of
which has not been attacked (ie paras (a) and (e) of
s 21(1));
and that when the documents required by law could not be produced,
they were entitled to arrest the appellant and
to seize the items on
the statutory authority of s 23 of the CPA.”
[50]
On the common cause facts it is not in dispute that the kudu
carcasses and the other items relating to night hunting found
on the
back of the Land Cruiser, were openly displayed on the back of the
vehicle.
[51]
Counsel for the Applicants did not seriously persist with the
argument that there could have been a reasonable expectation
of
privacy with regard to the items found on the back of the Land
Cruiser, and in my view rightly so. The kudu Carcasses, hunting
lights and battery were all in plain public view.
[52]
The main complaint was however against the conduct of Jullies when he
decided to walk to the Hilux. According to the argument
advanced,
Jullies violated the Applicants right to privacy as enshrined in
section 14 of the Constitution
[12]
when he without permission walked to the Hilux and used his torched
to illuminate the interior of the vehicle through the closed
window.
According to the Applicants the conduct of Jullies was not to
investigate but to unlawfully search the vehicle.
[53]
The plain view doctrine in relation to items found by the police in a
vehicle that were visible through a vehicle’s window
was also
considered by the Canadian Courts
[13]
.
[54]
In the Canadian case of
Grunwald
[14]
,
the main issue for consideration was whether a police officer’s
use of a flashlight to visually inspect a vehicle by shining
his
flashlight through a tinted window, where an illegal substance
(cannabis) was observed in an open plastic bag in the back of
a
vehicle, amounted to an unreasonable search and a violation of the
right to privacy. In Grunwald at paragraph [36] the
Supreme
Court held that “
[t]he
reasonable expectation of privacy is to be assessed in light of the
totality of the circumstances…. As for place, it
is
well-established that there is a reduced expectation of privacy in a
vehicle:… Driving is a heavily regulated activity,
and
motorists should and do know that while on the road, they are
subjected to police traffic stops, traffic cameras, streetlights,
and
the eyes of other curious drivers.”
[55]
In the United States, the viewpoint has also been that the use of
artificial illumination does not amount to a search. As was
noted in
Marshall
v United States
:
[15]
“
When
circumstances of a particular case are such that the police officer’s
observations would not have constituted a search
had it not occurred
in daylight, then the fact that the officer used a flashlight to
pierce the night time darkness does not transform
his observation
into a search. Regardless of the time of day or night, the plain view
rule must be upheld where the viewer is rightly
positioned …The
plain view rule does not go into hibernation at sunset.”
[56]
In all of the abovementioned cases, the approach adopted was if the
police are lawfully where they are permitted to be, the
use of
artificial light does not automatically constitute a search.
Moreover, the plain view rule is not limited to daytime hours.
If a
flashlight is used to see what would be visible in daylight hours,
such as objects in the back of a pick-up vehicle or the
interior of a
motor vehicle, the items do not cease to be in plain view when the
sun goes down.
[57]
The approached adopted in the abovementioned cases are no different
from the approached in our law. There can be no reasonable
expectation of privacy where items or goods are displayed in open
public view. The same applies to motor vehicles where ordinarily
there would be a reduced expectation of privacy.
[58]
In applying the abovementioned doctrine the question now is whether
conduct of Jullies in illuminating the inside cabin, through
the
closed window of the Hilux with a torched, amounted to a warrantless
search. Common sense dictates that nature conservation
officials and
or police, working at night will have the occasion to use flashlights
in the ordinary course of their duties. It
will not be objectively
reasonable to expect that they would not. If and when, the nature
conservation officials or police are
lawfully where they are
permitted to be, the use of artificial lighting cannot automatically
constitute a search. It would be equally
unreasonable to expect a
conservation official and or the police to shut their eyes when they
come across something suspicious
that maybe unrelated to the
investigation they are pursuing.
[59]
Jullies and Pietersen were entitled to lawfully stop the Land Cruiser
and or the Hilux. Jullies was also legally permitted
to walk to the
Hilux, as it was standing in a public road. The injured steenbok was
on the back of the vehicle and in open public
view. Jullies was
therefore entitled to look through the window. On the Applicants’
own version the hunting rifles were clothed
only in darkness inside
the vehicle. By using the torch to illuminate the night time
darkness, the rifles were easily visible inside
the vehicle. On these
stated facts common sense dictates that Jullies’s observations
would not have constituted a search
had the incident occurred in
daylight. By search it is meant any coercive state action which
violates the privacy of the person,
regardless of whether it is a
targeted search or a routine inspection.
[16]
[60]
In these circumstances, there could not have had been any reasonable
expectation of privacy in relation to the steenbok and
the hunting
rifles. It follows that there was no search and therefore no
violation of the Applicants rights in terms of section
14 of the
Constitution.
[61]
It is obvious that the Applicants’ interest in this case arises
from a declaration of invalidity that may result in the
exclusion of
the evidence in their pending criminal trial. If that result cannot
be achieved then their own interest to bring the
challenge and the
outcome would only be of academic or hypothetical interest. A
declaratory order is a discretionary remedy
that vests in the Courts.
There is a judicial policy that is uniformly observed by the Courts,
it in fact directs them not to exercise
such discretion in favour of
deciding points that are merely academic, abstract or hypothetical in
nature, as in this instance.
[17]
[62]
If, on the assumption there was a violation of some sort of the
Applicants constitutional rights, then a declaration of invalidity
of
sections 21(1)(f) to (j) of the Ordinance would also not
automatically assist the Applicants in the relief they seek. Section
35(5) of the Constitution provides that evidence obtained in a manner
that violates any right in the Bill of Rights must be excluded
‘
if
the admission of that evidence would render the trial unfair or
otherwise be detrimental to the administration of justice’
.
[63]
In the pending criminal proceedings this issue must still be decided.
To this end, it cannot be excluded that a real possibility
exists
that the magistrate may still decide that it would be in the interest
of justice to admit the evidence in terms of section
35(5) of the
Constitution. There may be several options open to the Applicants to
contend that the items found and seized must
be excluded but we know
that a declaration of invalidity would not assist them in that
regard. On the accepted version of the Respondents,
the nature
conservation officials did not place any reliance on the impugned
provisions as the source of their authority to conduct
their
investigation. Moreover, on the assumption that there was a violation
of the Applicants rights to privacy, on the available
evidence that
violation must have been extremely minimal. It can hardly be
suggested that all the items found on the night in question
in both
vehicles, which constitute real evidence, would not in any event have
been found given the public nature of its display.
There is also no
evidence to suggest that that the Applicants had been conscripted
into furnishing evidence against themselves
which would not otherwise
had been available to the officials. There is furthermore no evidence
that the officials made themselves
guilty of disorderly or
unreasonable conduct,
[18]
but as stated earlier, the admission of that real evidence is for the
trial court to decide.
[64]
Even if the impugned provisions of section 21(1) of the Ordinance
were to be declared constitutionally invalid (which I do
not propose
to do), the question still remains whether such invalidity should
operate retrospectively to the benefit of the Applicants.
The
argument advanced was that due to the inordinate delay in bringing
about a constitutionally valid Ordinance, good grounds exist
that the
order of invalidity should operate retrospectively. According to the
Applicants, the Respondents knew for a number of
years about the
defect in the provisions of section 21(1) but did nothing to remedy
the defect. It was also contended that the
new Biodiversity Bill has
been, since May 2006, in draft and there is no good reason why the
offending portions of section 21(1)
could not have been amended in
the interim period to conform with the Constitution.
[65]
The Respondents provided a detailed response in their answering
affidavits why the progress in developing a new provincial
legislation has been so tardy. According to the Respondents, nature
conservation is a functional area of concurrent legislative
competence with both the National and Provincial government bearing
responsibility and a formal process to revise the current Ordinance
in order to bring it into line with the Constitution and National
environmental law started in November 2003. According to the
Respondents this revision process continued for a number of years and
resulted in draft Western Cape Biodiversity Bill in May 2006.
Since
then several other national pieces of National Environmental
Management (NEM) legislation were enacted, namely the NEM: Protected
Areas Act 57 of 2003 which came into effect on 1 November 2004. This
Act was apparently amended four times after its proclamation
and
provides a framework within which protected areas are to be managed.
It also allows for regulations to be proclaimed which
had
implications for the development of provincial legislation. Same
applies to the NEM: Biodiversity Act 10 of 2004 which came
into
existence on 1 September 2004 and provides a framework within which
biodiversity conservation is to be implemented.
The Respondents
further contended that there are currently certain processes underway
to amend all of the NEM legislation and to
streamline and rationalise
it in order to avoid the duplication of functions between the various
pieces of legislation. According
to the Respondents the NEM
legislative landscape is complex and in a constant state of change
which cause the progress in developing
provincial legislation to be
slow. As a result it instructed the Cape Nature officials not to
utilise the search and seizure powers
conferred upon by sections
21(1)(f) to (j).
[66]
In as much as the delay by the Respondents to bring about a new
provincial biodiversity bill is to be deprecated, the inordinate
delay can however not prejudice the public as long as the Cape Nature
conservation officials do not utilise the search and seizure
powers
conferred upon it in paragraphs (f) to (j) of section 21(1) of the
Ordinance.
[67]
The general approach to whether an order of invalidity should be
retrospective would depend on the interest of justice and
sound
public administration. In
S
v Zuma and Others
[19]
,
the Constitutional Court held that a court’s powers to ‘
allow
an invalidation to take retrospective effect should be used
circumspectly, so as to avoid unnecessary dislocation and uncertainty
in the administration of justice’
.
The recent decisions of our Higher Courts all point to the fact that
there is a general rule favouring prospectivity and limiting
the
effect of retrospective invalidity.
[20]
[68]
If an order of invalidity were to apply, in this instance to pending
matters since December 2013, there might be many prosecutions
which
the authorities have to abandon, as experience has shown matters of
this nature can take years to finalise. The Applicants
case is also a
good illustration of the length of time it can take before coming to
its logical conclusion. The successful prosecution
of all such
matters could furthermore be thrown into disarray by a retrospective
order. For these reasons, on the assumption that
a declaration of
invalidity was to be made in the present instance, an order with
retrospective effect would not be in the interest
of justice. It
would bring uncertainty in the administration of justice.
[69]
For these stated reasons, it follows that the Applicants relief
cannot succeed and falls to be dismissed.
[70]
As to costs I will accept that the
Biowatch
principle is applicable.
[21]
[71]
In the result the following order is made.
The
Application is dismissed with no order as to costs.
________________
LE GRANGE, J
[1]
Nature Conservation Ordinance 19 of 1974 as amended by the Western
Cape Nature Conservation Laws Amendment Act 3 of 2000.
[2]
Provincial Notice 7196 of 2013 dated 15 November 2013.
[3]
See section 29(b) and (e) of the Ordinance.
[4]
Goldberg v Provincial Minister of Environmental Affairs and
Development Planning and Others
[2013] ZAWCHC 185.
[5]
Magajane v Chairperson, North West Gambling Board
2006 (5) SA
250 (CC).
[6]
Above n 4
[7]
Moosa Bros & Sons (Pty) Ltd v Rajah
1975 (4) SA 87
(D);
Pahad Shipping v Commissioner for the South African Revenue
Service
[2009] ZASCA 17.
[8]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634-5
;
Fakie NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) at paras 55-6;
Thint
(Pty) Ltd v National Director of Public Prosecutions and Others;
Zuma v National Director of Public Prosecutions and Others
[2008] ZACC 13
;
2008
(2) SACR 421
(CC) paras 8-10.)
[9]
National Coalition for Gay & Lesbian Equality &Others v
Minister of Home Affairs & Others
2000 (2) SA 1
(CC) para 21
and the cases cited therein at fn 19.
[10]
Goldberg v Provincial Minister of Environmental Affairs and
Development Planning and Others
[2013] ZAWCHC 185
at para 12.
[11]
2014 (2) SACR 57
(WCC) at paragraphs 38-40.
[12]
“
Everyone has the right to privacy, which includes the
right not to have-
(a)
their person or home searched;
(b)
their property searched;
(c)
their possession seized; or
(d)
the privacy of their communication infringed.”
[13]
R v Patrick
,
2009 SCC 17
(CanLII) and
R v Grunwald
,
2010 BCCA 288(CanLII)
[14]
Footnote 4 paragraphs 36-45.
[15]
[1970] USCA5 97
;
422 F.2d 185
(5
th
Cir. 1970).
[16]
Magajane v Chairperson, North West Gambling Board and Others
2014 (1) SA 422
(CC) at para 59.
[17]
JT Publishing (Pty) Ltd v Minister of Safety & Security
[1996] ZACC 23
;
1997 (3) SA 514
(CC) at para 15.
[18]
See S v Pillay and Others
2004 (2) SACR 419
(SCA);
S v De Vries
and Others
2009 (1) SACR 613
(C) at para 70; and
S v Nell
2009 (2) SACR 37
(C) at paras 22-24.
[19]
[1995] ZACC 1
;
1995 (2) SA 642
(CC) at para 43.
[20]
Estate Agency Affairs Board v Auction Alliance
(Pty) Ltd
2014 (3) SA 106
(CC) at paras 49-51 and the cases refered to
therein.
[21]
Biowatch Trust v Registrar Genetic Resources and Others
2009
(6) SA 232
(CC).