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[2018] ZAECPEHC 57
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S v Blignault (CC20/2018) [2018] ZAECPEHC 57 (19 September 2018)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
In
the matter
between:
Case No: CC 20/2018
THE
STATE
And
MORNE
BLIGNAULT
Coram:
Chetty J
Heard:
12 September 2018
Delivered:
19 September 2018
JUDGMENT
Chetty
J:
[1]
The unearthing of a veritable hoard of abalone in a nondescript shed
on the small
holding, Oliphant’s Kop farm by Warrant Office
Leon Martin Eksteen
(
Eksteen
), on 11 August 2017 led,
in time, to the arrest of nine persons and spawned five separate
criminal trials over the past two years
which ultimately unmasked the
accused as the arch villain in the widespread plunder of abalone from
our coastal waters. His management
in the operation and activities of
the poaching enterprise was, notwithstanding the arrest of Messrs
Zhenyong
,
Kekun
and
Kilian
on 11 August 2014,
only finally revealed when
Kilian
deposed to a written
statement to the police on 28 April 2015 wherein he chronicled the
accused’s direct managerial participation
in the enterprise’s
pattern of racketeering activities.
[2]
His evidence established that The Gables in Kruisrivier Road on the
outskirts of Uitenhage,
No. 34 King Edward Street, Newton Park and
No. 24 Waterford Street, Bridgemead in Port Elizabeth were used as
storage facilities
as from July 2013. It moreover finds corroboration
in
Eksteen’s
evidence and the photo album compiled by
Warrant Officer
Bekker
(exhibit “G”) and exhibit
‘F” and I have no hesitation in accepting that the
accused either owned the properties
or was the
de facto
lessee. The vehicles used to transport the abalone and collect and
ferry the gas cylinders were likewise his property notwithstanding
the deception created surrounding their ownership.
Eksteen’s
investigations established that the registration of the Isuzu Bakkie,
depicted on photographs 4 and 5 of exhibit “B”,
in the
name of one Ms
Zono
was false and this illustrates the
accused’s
modus operandi
to conceal his guiding hand.
[3]
It is furthermore evident from
Eksteen’s
testimony that
the procurement of the premises on Oliphant’s Kop farm was the
brainchild of the accused. Exhibit “A”
bears testament to
the isolation of the processing facility and its location is
reflective of the meticulous planning and machinations
of the accused
in securing premises away from prying eyes in which to conduct the
enterprise’s activities. The equipment
vividly depicted in
exhibit ‘B”, in particular, the large pots in which the
abalone was cooked are clearly not the
conventional over the counter
products. It must, on the probabilities have been conveyed to the
farm shortly after the owner, Mr
Erasmus
, agreed to lease the
premises to the enterprise. It is apparent from
Kilian’s
evidence that those premises were being utilised prior to him
becoming a member of the enterprise and the inference can properly
be
made that abalone was being processed shortly after the shed was
acquired.
[4]
The presence of
Zhenyong
and
Kekun
was, notwithstanding
the coyness of their explanation for being on the premises, integral
to the success of the operation. In their
plea explanations, in both
the Regional Court and the High Court, the supposition advanced was
that their residency on the farm
was purely accidental post their
arrival in South Africa. The plea explanation tendered by their
attorney in the criminal trial
in the Regional Court on 11
November 2014 is a model of disingenuity. It limits their involvement
in the processing of abalone
during August 2014 and yet, an analysis
of the plea explanation tendered before Makaula J establishes their
involvement in the
enterprise’s business as from July 2013.
[5]
The notion that they arrived on these shores as economic migrants
before being absorbed
into the enterprise’s criminality first
surfaced in the plea explanation in the Regional Court and was
persisted with in
their trial before Makaula J. The transcript
of those proceedings are properly before me and, notwithstanding the
propositions
advanced in that forum trivialising their role in the
cooking process I am satisfied that their expertise was specifically
solicited
by the enterprise given the enormous concomitant financial
benefits. During
Mostert’s
testimony in the Regional
Court, he adverted to the involvement of syndicates from China and
Hong Kong and the inference is inescapable
that
Zhenyong
and
Kekun
were specifically assigned to the enterprise to process
the abalone under the accused’s aegis.
[6]
The accused’s role in this transnational criminal syndicate was
integral to
its success and, given the duration of the activity on
the farm, must have yielded handsome financial rewards. Exhibit “C”,
and in particular photographs 1 - 4, constitutes a pictorial record
of The Gables and vouchsafes
Eksteen’s
testimony
concerning its market value. The submissions made during mitigation
by Mr
Griebenow
concerning the accused’s relative penury
beg the question as to the origin of the finances used to fund it and
the other
properties referred to by
Kilian
in exhibit “H”.
It is furthermore obvious from
Eksteen’s
testimony that
the sale of the property to the accused’s teenage son was a
mere ploy to conceal the accused’s affluence
and to posit him
as penniless. Contrariwise, the property portfolio attests to the
rich rewards his poaching activities yielded.
[7]
Allied to the portrayal of the accused as a person struggling to
subsist and thus
vulnerable to temptation to engage in poaching
activities is the submission that the change in his plea was an
expression of genuine
contrition. Remorse can properly be considered
to be a mitigating factor but it all depends on the circumstances.
The guilty plea
followed upon
Eksteen’s
testimony which,
as adumbrated earlier, unveiled the accused as the enterprise’s
mastermind. If he was truly remorseful he
would, prior to the
separation of his trial from that of his then co-accused, have taken
full responsibility for his role but he
desisted. The not guilty plea
was a strategy to test the waters and only after a sober realisation
of its futility post
Eksteen’s
testimony, was the
altered plea entered. It is disingenuous in the extreme to assert
that genuine remorse triggered the plea.
[8]
The statutorily ordained penalty for a contravention of sec 2(1) of
the Act is a fine
not exceeding R1 million or imprisonment up to
life. In argument before me Mr
Griebenow
was constrained to concede that whilst the offences merited a
custodial sentence, the accused’s personal circumstances
decreed
that I temper its duration to a period considerably less than
the sentence which I imposed in the
Roberts
[1]
matter. The distinction sought to be drawn between the factual matrix
in
Roberts
and those in
casu
is illusory. The mere fact that the criminal activity in
Roberts
endured over several years as opposed to the one (1) year adverted to
in the indictment is inconsequential. The sheer volume of
the abalone
found on 11 August 2014 militates against assessing sentence within
time frame parameters.
[9]
The scale of the enterprise’s activities extended far beyond
provincial boundaries
and establishes the reach of its organisational
tentacles. It is not in issue that a substantial amount of the
abalone found originated
from the Western Cape, no doubt because of
the plunder and depletion of the resources along the Eastern Cape
coastline. Although
the accused’s previous conviction for
possession of an excessive amount of abalone can perhaps be described
as antiquated,
it cannot be ignored.
It
manifests a predilection for repeat offences and the associated
financial rewards no doubt provided a clear inducement to continue
as
this case so graphically portrays. The extent of the
enterprise’s activities was, as the evidence revealed, not
of
recent vintage. The paraphernalia found at the shed attests to the
longevity of the poaching activities.
[10]
The sentences on
Roberts
and his coterie were
imposed six years ago and the judgment attracted wide publicity. In
it I emphasized that past sentencing patterns
had to be revisited and
that the time had arrived for a complete reassessment of the
sentencing options. It is apparent from this
and other matters of
similar ilk presently before this division that my admonishments have
attracted utter disdain rather than
obeisance. The plunder continues
unabated and the stage has been reached for appropriate sentences to
stem the unrelenting poaching
tide. The accused is sentenced as
follows -
Counts 1, 2 and 3 are
taken as one for purposes of sentence and the accused is sentenced to
twenty (20) years imprisonment.
D.
CHETTY
JUDGE
OF THE HIGH COURT
Obo
the State:
Adv M. L. Le Roux
NDPP,
Asset Forfeiture Unit, Bird Street, Central, Port Elizabeth
Tel:
(012) 842 1400
Obo
the Defence: Mr
A Griebenow
Griebenow
Attorneys, 157 Cape Road, Mill Park, Port Elizabeth 6001
Tel: (041) 373 5530
[1]
S v Roberts and Others 2013(1) SACR 369 (ECP)