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[2017] ZAECPEHC 55
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S v Blignaut and Others (CC19/2017) [2017] ZAECPEHC 55; 2018 (1) SACR 587 (ECP) (21 November 2017)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION – PORT ELIZABETH
Case No: CC 19/2017
Date Delivered:
21/11/17
In
the matter between:
THE
STATE
and
MORNE
BLIGNAUT
ACCUSED 1
MARSHELLE
BLIGNAUT
ACCUSED 2
JACOB
JOHANNES JACOBUS
NAUMANN
ACCUSED 3
FREDERICK
NANCE
ACCUSED 4
PETRUS
LINDEQUE
SMITH
ACCUSED 5
WILLIE
NANCE
ACCUSED 6
HUANG
ZHENYONG
ACCUSED 7
PAN
KEKUN
ACCUSED 8
SENTENCE
MAKAULA
J:
[1]
The two accused’s are Chinese Nationals who came and resided in
the Republic of South Africa illegally. They have
one previous
conviction each for contravening the provisions of the
Marine Living
Resources Act 18 of 1998
. They were both sentenced to thirty months
imprisonment respectively. The accused have further two
previous convictions relating
to the contravention of the
Immigration
Act 13 of 2002
and were sentence to three and six months imprisonment
on each count. All sentences were ordered to run concurrently.
Effectively the accused served a period of thirty months imprisonment
in respect of the four previous offences.
[2]
I convicted the accused of eight different offences involving a
contravention of the Marine Living Resources Act 13 of 1998
(the Act)
and Regulation 36(1)(a) of Regulation No 1111 published in Government
Gazette 19205 dated 2 September 1998 on their plea
of guilty.
[3]
In their plea explanation in terms of
section 112(2)
of the
Criminal
Procedure Act 51 of 1977
, the accused in a nutshell admitted the
following:
3.1
That Oliphant’s Kop farm was used as an illegal fish processing
establishment;
3.2
That during their arrest they were found in possession of a total of
37 356 units of abalone
which weighted in excess of six tons with an
estimated value of R5 258 300. 00;
3.3
During the period July 2013 to August 2014, abalone, which was
pouched and illegally collected
along the South African shoreline
mainly in the Port Elizabeth area, was illegally transported and kept
at the above mentioned
establishment where it was illegally processed
and dispatched after being dried;
3.4
Various vehicles in particular a Nissan LDV and a Corsa LDV were
amongst the vehicles used
in transportation of abalone;
3.5
That at all relevant times they knew that they were employed by an
enterprise for the purposes
of processing abalone;
3.6
The purpose of the enterprise was to engage in the illegal fishing,
collecting, keeping,
controlling, processing, transportation of and
possession of abalone without a permit, at an illegal processing
establishment in
Oliphant’s Kop farm;
3.7
Part of their employment by the enterprise was to receive, possess,
process, cook, dry and
pack abalone at the illegal processing
establishment for export;
3.8
That the affairs of the enterprise were manifested through
racketeering activities being
planned, ongoing, continuing and
repeated involvement and participation in abalone related offences.
The
accused therefore admitted all the elements of the offences they
pleaded guilty to.
[4]
In an effort to give a background as well as aggravating factors, the
State called the evidence of Warrant Officer Leon Martin
Eksteen.
He gave a brief background as to how he got to know, as a member of
the Organised Crime Unit, that the farm was
used as a store for
unlawful processing of abalone. As a result of the information
he investigated the matter and came to
arrest the accused on the
farm. He testified that the accused were found in possession of
wet abalone which was green and
brown in colour. The green
abalone was harvested in the Western Cape, so he testified.
That meant the processing establishment
was not used for processing
abalone from the Eastern Cape only. He further testified
that he also found a room where
the cooking and the processing of
abalone occurred as depicted the photo album of the farm. He
further confirmed that the
accused were in South African illegally
and also referred to their previous convictions in respect of the
contravention of the
Marine Living Resources Act and
the
Immigration
Act. He
testified that the living conditions of the accused
were appalling as the place was unhygienic and very filthy. He
confirmed
that the accused were arrested on 11 November 2014 and
sentenced on 17 November 2014. Since then they were detained at
St
Albans Correctional Services Centre.
[5]
Mr Kruger, on behalf of both accused, submitted their personal
circumstances from the Bar. The accused did not testify
in
mitigation of sentence. He stated that accused 7 is 32 years.
Accused 8 is 53 years. He submitted that both
accused have been
in custody for three years. They have no relatives in South
Africa. They never had any visitation
for the whole period as a
result. He submitted that both of them came to South
Africa illegally because they were promised
a job in South Africa.
They left China because of poverty and due to various personal
circumstances. Accused 7 is married.
His wife
suffers from cancer. They had no money to finance her
treatment, hence, I assume, he decided to take
a bogus job in South
Africa. It is so, because nothing of the kind of job promised
to them materialised except to be hired
to process abalone. He
has two children and her parents are both pensioners earning a sum of
R600.00 per month.
[6]
Accused 8 is a tailor by profession. He had to give up his
career because of eyesight problems. He came to South
Africa to
look for better job opportunities. He was surprised to be taken
to the farm to cook, dry and prepare abalone. Both
lived on the farm
since their arrival from China. They were not allowed to go out
of the farm. They had no vehicle
and no access to town.
They have been living on the farm and worked under the conditions as
already described. All
their personal necessities like food
were brought to them on the farm. Mr Kruger, submitted that
both of them have shown
remorse by pleading guilty. They
pleaded guilty even in the court which sentenced them without
hesitation. He submitted
that both accused are willing that
they be deported at their own costs to China.
[7]
Mr Le Roux, on behalf of the State, was not opposed to the accused’s
being given suspended sentences and an order for
their deportation at
their costs.
[8]
Mr Kruger drew an analogy of a major store packer employee as
compared to the directors thereof in explaining the role played
by
the accused in the enterprise. The packer is the
last person in the store hirachy and the salary he or she
earns is
commensurate with his or her work. The bulk of the profits are
enjoyed by those high up. Similarly in this
instance, the
accused earned peanuts, so he submitted. That is borne out by
their living conditions as depicted in the pictures
and as confirmed
by Warrant Officer Eksteen. They lived in horrific conditions.
Warrant Officer Eksteen confirmed that
accused 8 was emaciated at the
time of arrest. His condition has since improved while in
prison and he looked healthy, than
before, so he testified.
They joined the enterprise because of socio-economic conditions in
their country of origin.
It has to be noted that these offences
are related to the previous convictions in that, at the time of
conviction and sentence,
it was not clear that the accused were
involved in an enterprise which dealt in pouching illegal abalone and
racketeering activities.
Had that been known, the accused would
have faced the current charges simultaneously with those they have
served sentences in respect
of.
[9]
The kind of offences the accused are convicted of have become
prevalent in the area of Port Elizabeth, predominately, because
of
its coastal location. They are serious offences which need to
be visited with harsh sentences to reflect the seriousness
thereof.
However, the nature and circumstances vary thus necessitating a
differentiation in the sentences to be meted out.
Proof of
that, are the current circumstances of this case. The personal
circumstances, the nature of the role played by the
accused in the
commission of these offences and the conditions that prevailed in the
processing plant or establishment pertaining
to the accused are
relevant and should influence the kind of sentence I have to impose.
The circumstances of this case are
unique. However, the
sentences should not send a wrong message. They have to reflect
the seriousness thereof.
[10]
Section 3 of the Prevention of Organised Crime Act 121 of 1998 (POCA)
stipulates that:
“
Any
person convicted of an offence referred to in section 2(1) shall be
liable to a fine not exceeding R1000 million, or to imprisonment
for
a period of up to imprisonment for life”.
[11]
Both accused have been convicted of contravening section 2(1) of
POCA. The sentences are therefore applicable.
It is the
starting point. Having considered the circumstances of this
matter, I however, sentence the accused as follows:
Count
1:
The accused are
sentenced to undergo ten (10) years imprisonment each wholly
suspended for 5 (five) years on condition that the
accused are not
convicted of a contravention of
section 2(1)(e)
of the
Prevention of
Organised Crime Act 21 of 1998
during the period of suspension;
Count 4:
The accused are sentenced to undergo 3 (three) years imprisonment;
Count 5:
The accused are sentenced to undergo 3 (three) years imprisonment;
Count 6:
The accused are sentenced to undergo 3 (three) years imprisonment;
Count 7:
The accused are sentenced to undergo 3 (three) years imprisonment;
Count 8:
The accused are sentenced to undergo 3 (three) years imprisonment;
Count 9:
The accused are sentenced to undergo 3 (three) years imprisonment;
Count 10:
The accused are sentenced to undergo 3 (three) years imprisonment.
9.1
It is ordered that the sentences in count 4, 5, 6, 7, 8, 9 and 10
shall run concurrently.
It is further ordered that such
sentences are wholly suspended for 5 (five) years on condition that
both accused are not convicted
of a contravention of
Regulation
36(1)(a)
of Regulation R1111 published in Government Gazette 19205
dated 2 September 1998 during the period of suspension;
9.2
It is ordered that the Department of Home Affairs should see to the
deportation of both
accused to their country of origin, the Republic
of China in terms of
section 49(12)
of the
Immigration Act 13 of
2002
.
______________________
M
MAKAULA
Judge
of the High Court
For
the State, Adv M Le Roux, Director of Public Prosecution, Port
Elizabeth
For
Accused 7 and 8, Mr JC Kruger, BDK Attorneys, Johannesburg (Private
Instructions)
Date
Heard:
20 November 2017
Date
Delivered: 21 November 2017