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[2010] ZAECPEHC 39
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National Director of Public Prosecution v Mniki (2190/2009) [2010] ZAECPEHC 39 (29 June 2010)
8
FORM A
FILING SHEET FOR SOUTH EASTERN
CAPE LOCAL DIVISION JUDGMENT
PARTIES
:
Case No: 2190/2009
In the
matter between:
NATIONAL
DIRECTOR OF PUBLIC
PROSECUTION
Applicant
and
BONSILE
MICHAEL MNIKI Respondent
In
Re
: A red Opel Kadette DNG 846
EC
Case
Number
:
2190/2009
High
Court
:
EASTERN
CAPE, PORT ELIZABETH
DATE
HEARD: 28 January 2010….
DATE
DELIVERED:
29
June 2010
JUDGE(S):
NEPGEN
J
…
LEGAL
REPRESENTATIVES –
Appearances:
For
the Applicant(s): Mr Ndzengu
for
the Respondent(
s):
Mr Schoonraad
Instructing
attorneys:
Applicant(s):
State Attorney
Respondent
(s):
P J Schoonraad Attorneys
CASE
INFORMATION -
Nature
of proceedings
:
Civil
Matter
Topic:
………………………
Key
Words:
IN THE
HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE, PORT ELIZABETH)
Case No: 2190/2009
In the
matter between:
NATIONAL
DIRECTOR OF PUBLIC
PROSECUTION
Applicant
and
BONSILE
MICHAEL MNIKI Respondent
In
Re
: A red Opel Kadette DNG 846
EC
_____________________________________________________________________
JUDG
MENT
_____________________________________________________________________
NEPGEN,
J
[1]
During the night of
9 February 2009 two policemen, Coertze and Green, were performing
patrol duty on the R75 between Graaff-Reinet
and Uitenhage. At
approximately 01h20 they noticed an Opel Kadette motor vehicle with
registration mark DNG 846 EC (hereinafter
referred to as the Opel)
being driven in the direction of Uitenhage. The Opel was being
driven in an erratic manner and they
decided to stop it, suspecting
that the driver was under the influence of liquor. After the Opel
had been stopped these two policemen
went to it. The driver thereof
was the respondent. He is also the owner of the Opel. There was one
passenger in the Opel, one
Khangela Ngqakaza. The policemen noticed
that there were three dogs in the vehicle. One of these dogs had
what appeared to be
blood stains on its neck and chest. On the
dashboard of the Opel there was a knife, described as a hunting
knife, which was also
bloodstained. A portable light, described as a
spotlight (kollig) was observed between the two front seats. Having
seen all this,
Coertze requested the respondent to open the boot of
the Opel, which he did. In the boot Coertze found the carcase of a
bushbuck
as well as a grysbuck. The throats of the buck had been
slit. Coertze asked the respondent where he had got the buck from
and
the respondent told him that he had found them in the road. He
also told Coertze that he had gone to Kirkwood to fetch the dogs
that
were in the Opel and it was when he was returning that he found the
buck. In addition to the other items, there were apparently
three
knobkieries in the vehicle. Not surprisingly, the police suspected
the respondent and Ngqakaza of having illegally hunted
the buck and
they were arrested. They were taken to the police station in
Uitenhage. Sometime thereafter photographs were taken
of the Opel as
well as of the carcases of the buck. The photographs also show the
head of another grysbuck, but a third carcase
was not found.
[2]
The respondent was
charged with a number of contraventions of the Cape Nature and
Environmental Conservation Ordinance, No 19 of
1974 (the Ordinance).
These charges can be summarised as the hunting of protected wild
animals without a permit (contravening
section 27 (1) (b) of the
Ordinance); hunting by means of prohibited ways (contravening
section 29 of the Ordinance); hunting
wild animals and/or removing
the carcases thereof without the landowner’s permission
(contravening section 40 of the Ordinance);
and the illegal
possession of wild animals or the carcases thereof (contravening
section 42 (1) of the Ordinance). Not being
content with preferring
these charges against the respondent, the applicant applied for and
obtained a preservation order in terms
of section 38 (2) of the
Prevention of Organised Crime Act, No 121 of 1998 (POCA),
contending that the Opel was an instrumentality
of all or some of the
offences with which the respondent was charged as “it was
deliberately used by the respondent in contravention
of the
provisions of Cape Ordinance 19 of 1974”. The order was
granted on 11 August 2009. The application presently before
me is
for an order in terms of section 50 (1) of POCA that the Opel be
forfeited to the State. The application is opposed by
the
respondent.
[3]
There can be no
doubt that the inference that the respondent had been engaged in
illegal hunting of wild game (or poaching) can
be drawn from the
facts outlined above. However, the respondent denies that he did so.
His version is that he had travelled to
Kirkwood in the Opel on 8
February 2009 in order to attend a soccer game. A friend of his, one
Kwatsha, requested the respondent
to try and trace Ngqakaza while he
was at Kirkwood as Ngqakaza was in possession of Kwatsha’s
dogs. Kwatsha requested the
respondent to bring the dogs back to
Port Elizabeth if he could find them. The respondent says that he
did manage to trace Ngqakaza.
After informing him what Kwatsha had
asked him to do, Ngqakaza asked if he could also travel to Port
Elizabeth with the respondent.
When they left Kirkwood the dogs were
put in the vehicle and Ngqakaza accompanied the respondent as a
passenger. The respondent
avers that on two different occasions
along the road he encountered injured buck. These were the grysbuck
and the bushbuck. Ngqakaza
killed the buck by slitting their throats
and they were put into the boot of the vehicle. On one of the
occasions the dogs also
got out of the vehicle and one of the dogs
bit the buck. This, according to the respondent, explains the
bloodstains which were
noticed on the one dog.
[4]
The respondent
stated that it was obvious to him when he came across the buck that
each of them were seriously injured and would
not survive the
injuries. In the circumstances, so he avers, he regarded the killing
of the buck to be “the humane thing”
to do. The
respondent states further that it seemed to be reasonable to take
possession of the buck and to feed his family and
that of Ngqakaza.
According to the respondent he was unaware that he was committing any
offence at the stage when he loaded the
buck into the Opel.
[5]
The version deposed
to by the respondent in opposition to the application is consistent
with what he told the policemen immediately
after he was stopped. As
has been mentioned, as soon as he was asked where he obtained the
buck he informed Coertze that he had
to fetch the dogs in Kirkwood
and on his way back he had found the buck in the road. Although
there is no explanation as to why
the respondent was proceeding home
so late at night and also no explanation as to why a hunting knife
and a spotlight were in the
Opel, nothing has been advanced by the
applicant to indicate that the respondent’s version should be
rejected. In fact,
a confirmatory affidavit has been filed by
Kwatsha, in which he confirms that the dogs in question were his and
that he had asked
the respondent to fetch them from Kirkwood; and
Ngqakaza has also deposed to an affidavit in which he supports the
respondents
version.
[6]
As I have mentioned,
the head of a second grysbuck appears on the photographs that were
taken at the police station. The respondent
denies any knowledge of
the head of the grysbuck and says that he has no idea where it comes
from. The photograph shows it in
the boot of the Opel. However,
most significantly, neither Coertze nor Green made any mention
whatsoever of the head of the grysbuck
when they described what they
found upon inspecting the vehicle and particularly the boot thereof.
On behalf of the applicant
it was contended, in the replying papers,
that as it was not suggested by the respondent that the police
planted this grysbuck
head in the Opel it must be accepted that he
knew it was there. I do not agree. If the respondent has no
knowledge of the head
of this grysbuck then there is nothing else he
can say about it. One would at least have expected Coertze or Green
to explain
why they made no mention of it when describing what they
found in the boot of the Opel.
[7]
The applicant did
not request that the matter be referred for the hearing of oral
evidence. In the circumstances it was quite correctly
accepted on
behalf of the applicant that the matter had to be decided on the
respondent’s version. On that version the respondent
has
contravened section 42 (1) of the Ordinance, which reads as follows:
“(1) Any person found in possession of any wild animal or the
carcase of any
such animal shall be guilty of an offence
unless, in the event of –
the animal having been hunted by him on the land of any other
person, he is in possession of the written permission contemplated
by section 39, or
his having acquired such animal or carcase from any other person, he
is in possession of a written document contemplated by section
41”
[8]
The respondent
admits that he is guilty of this offence, although he contends that
he was unaware that he was committing an offence
at the time he took
possession of the carcases of the buck.
[9]
On behalf of the
applicant it was contended that the fact that it could not be found
that the respondent had in fact poached the
buck was irrelevant as
the Opel was clearly an instrumentality of the offence of which the
respondent is guilty on his own version.
To put it another way, it
was argued on behalf of the applicant that it was irrelevant whether
or not the buck had been hunted
by the respondent. The mere fact
that he had the carcases in his possession in the boot of the Opel
was sufficient, so it was
submitted, for it to be concluded that the
Opel was an instrumentality of the offence of unlawfully possessing
the carcases.
[10]
I am unable to
agree with the submissions made on behalf of the applicant in this
connection. In
National Director of
Public Prosecutions vs Geyser and another
[2008] ZASCA 15
; ,
[2008] 2 All SA 616
(SCA) Howie P said the following at 620 g–h
[17]:
“To be an instrumentality of an offence the property concerned
must by definition in POCA, be “concerned in the commission”
of that offence. As the cases have interpreted that definition, the
property must facilitate commission of the offence and be
directly
causally connected with it so that it is integral to commission of
the offence.”
[11]
In my view it
cannot be said that the Opel was “directly causally connected”
to the offence of unlawfully possessing
the carcases. On the
respondent’s version he happened to come across the two injured
buck on the road as he was driving
home. After the buck had been
slaughtered, he took possession of them and put them in the boot of
the Opel. If he had been walking
along the road carrying empty sacks
and had loaded the carcases into such sacks it could hardly be said
that the sacks were “directly
causally connected” to the
commission of the offence. Similarly, the Opel was not in any way
necessary to enable the respondent
to be in possession of the
carcases.
[12]
Having come to this
conclusion it follows that the application must fail. I make the
following order:
The application for an order in terms of
section
50
(1) of the
Prevention of Organised Crime Act, No 121 of 1998
,
declaring forfeit to the State the red Opel Kadette DNG 846 EC, is
dismissed with costs.
J J NEPGEN
JUDGE OF THE HIGH COURT