About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Port Elizabeth
>>
2019
>>
[2019] ZAECPEHC 12
|

|

S v Brown and Others (CC18/2017) [2019] ZAECPEHC 12; [2019] 2 All SA 622 (ECP) (1 March 2019)

Reportable/Not
Reportable
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION – PORT ELIZABETH
Case No:  CC 18/2017
Date Delivered:
01/03/2019
In
the matter between:
THE
STATE
And
JULIAN
BROWN

ACCUSED 1
EUGENE
VICTOR

ACCUSED 2
BRANDON
CRAIG
TURNER

ACCUSED 3
SENTENCE
MAKAULA
J:
[1]
I convicted Accused 1 and Accused 2 for contravening the provisions
of section 2(1)(f)
of the Protection of Organised Crime Act 121 of
1998 (POCA).  Section 3 of the POCA deals with the penal
provisions.
It provides that a person convicted of contravening
section 2(1)(f) is liable to pay a fine of R 1000 million rand or to
imprisonment
for a period up to life imprisonment.
[2]
In mitigation of sentence Accused 1 called his sister, Ms Nicola
Hattingh (Nicola).
She stated as follows:
“
. . . I am here
today to humbly plead with you and to ask mercy when you hand down
the sentence to my brother today.  I grew
up with Julian in a
close knit family with a mom and dad that have been married for 35
years.  If there is someone who truly
and genuinely knows my
brother it is us.  Therefore, I would love to tell you a bit
about my brother and what he means to
us, his extended family,
friends and workers.  Julian is an absolute heartfelt, gentle,
compassionate human being”.
[3]
She went on to give a detailed account of how he looks after his
employees and their
families, his discipline and leadership skills,
his accomplishments at such a young age, and how he taught them as a
family that
all human beings are equal.  She stated that they
were brought up by excellent parents who insisted on good values in
them.
She told of how Accused 1 single handedly saved an
elderly gentleman from a crowd of people and a burning motor
vehicle.
This was confirmed by Accused 1 when he testified.
The person was trapped inside that burning motor vehicle.  She
testified
about how philanthropic Accused 1 was, citing that he built
a hall for free at Walmer Park Township.  She mentioned that
Accused
1 is looking after a little girl who has special needs and
does so as if she was his own.  She mentioned an instance where

Accused 1 assisted a Malawian to go to his country to meet his family
which he had not seen for five years.  He has a love

relationship with his life partner who is dependent on him for a
living.  His parents are still alive.
[4]
Under cross-examination by Mr Le Roux, it turned out that Nicola did
not know some
of the personal circumstances of Accused 1.  She
did not know whether he passed standard 8 and whether he completed
the chef
course he underwent.
[5]
Accused 1 testified his construction business employs 21 people.
He stated that,
if sentenced to direct term of imprisonment the
construction company would have to close down.  He confirmed the
evidence
of his sister in so far as it related to him and the role he
plays to his workers, community and how he saved a person from a
burning
motor vehicle.
[6]
He testified that he had previously worked with community leaders at
Walmer Township
and assisted them without charging a fee for work
done.  He is willing to build houses for the poor for free if
given a non-custodial
sentence and such a condition is imposed.
[7]
Mr Price, on behalf of Accused 1, made further submissions in
mitigation of sentence.
He submitted that there is no evidence
that Accused 1 benefited financially from the proceeds of the
offences.  There is no
weight nor amount realised from the
proceeds of the activities mentioned in the evidence, so he
submitted.  These factors,
so he argued, merit that Accused 1
should be treated differently from other sentences meted out in
related cases
[1]
.
[8]
I have considered the judgments referred to above and for purpose of
this judgment,
I need not deal pertinently with the facts and the
sentences meted out.  In the
Miller
judgment the accused
were convicted of the contravention of section 2(1)(e) of the
Prevention of Organised Crime Act 121 of 1998
(POCA) which carries
the same penalty as the contravention of section 2(1)(f) of POCA.
Mr Price argued that there is a difference
in the weight of abalone
ceased and the amount benefited between this case and the
Miller
and the
Blignaut
(CC 20/2018) judgments which should act in
favour of Accused 1 when it comes to sentencing.
[9]
It is correct that there is no evidence that pertains to the amount
Accused 1 made
out of the abalone poaching.  However, I cannot
lose site of the evidence of Mr Mostert who was employed by the
Department
of Agriculture, Forestry and Fisheries (DAFF); about the
total weight of each racketeering activity and the street value of
abalone
found on each activity.
[10]
The evidence I have accepted reveals that Renier Ellerbeck, Edgar
Clulow, Edgar Clulow Junior,
and many others who were involved in the
various activities, testified that they were employed by Accused 1.
The ultimate
person who was to benefit was him.  The motor
vehicle that Accused 2 was arrested whilst driving was linked to
Accused 1 in
one way or another.  Clulow Junior testified that
he was present at some stage when Accused 2 changed the licence disc
and
the registration plates of that motor vehicle.  He assisted
in loading abalone which Accused 2 was transporting to Gauteng,
in
terms of his evidence.
[11]
The seriousness of abalone poaching and the violations of the POCA is
reflected in the sentences
the legislature has ordained.
Captain Swanepoel testified that abalone poaching reached alarming
propositions in Port Elizabeth,
which is regarded as the hub of the
Eastern Cape.  His Commander instructed him to form a team of
investigators involving
officials from DAFF.  He complied.
It took years for them to investigate abalone poachers because of the
manner they
operated.  I dealt fully with how the operations
were conducted in the judgment on the merits.
[12]
DAFF, because of the depletion of abalone in the Port Elizabeth area
due to it being unlawfully
harvested, embarked on a project of
replenishing the coastal area by planting abalone.  Further,
because of poaching, DAFF
had to employ a company to look after the
ranching area called Wold Coast Abalone which in turn employed the
Technical Task Force
to guard the coastal area in an effort to stop
the syndicates which unlawfully poached abalone.
[13]
Mr Mostert testified on the merits that the abalone poached, is
destined for the Chinese market.
It is unlawfully exported to
China and Hong Kong where it is sold at exorbitant prices because
some regard it as an expensive dish
and others use it as an aid to
prevent ageing.  The evidence confirms the involvement of the
Chinese in abalone poaching.
In the judgments on merits, I
referred to a message from a Chinese person which was found in
Accused 1’s phone.  That
message was talking of how
abalone must be prepared and cooked.  It stated that customers
were complaining that the prepared
abalone is not well cooked
inside.  Accused 1 distanced himself from that message by saying
that he receives a number of sms
and whattsapp from sources he did
not know.  From this, I deduce that it is apparent that the
abalone poached was destined
for the international market.
[14]
The government incurred exorbitant costs in replenishing the sea with
abalone, and in taking
measures to prevent abalone poaching which had
reached alarming proportions in the coastal area.  This on its
own reflects
on the seriousness of the offences with which the
Accused have been convicted.
[15]
Running the risk of repeating myself, Accused 1, was the employer of
the other two Accused.
I say so even though I convicted Accused
2 on count 1.  Accused 1 did not show any signs of remorse.
Throughout the
trial he maintained that his only involvement in
abalone poaching was that he was hiring out diving equipment,
assisting the section
204 witnesses including Accused 2 financially.
The Clulows were involved with him through his construction
business.
Accused 1 portrayed all of them as people who were
useless gamblers and some drug addicts.  He knew all their short
comings
and alleged that Renier Ellerbeck was a thief and a repeat
offender.  Such comments made of these people and police
witnesses
are unfortunate.  Especially now that I found that all
the section 204 witnesses were working for him.
[16]
Accused 2 played a significant role in the running of the
enterprise.   The evidence
reveals partially that he was
involved in recruiting some of the 204 witnesses, to either transport
abalone or provide them houses
to store abalone.  Payment was
filtered through him.  He was involved in the day to day running
of the enterprise and
at the same time act as its employee.  He
was instrumental in carrying out the affairs of the enterprise, hence
he was arrested
transporting abalone at Jansenville.  I mention
at this stage that the role played by Accused 2 and 3, even though
convicted
of contravening section 2(1)(e) of POCA in respect of count
2, their sentences should be less than that of Accused 1.  It is

always desirable that there should be no differentiation in sentences
especially those committed at the same time but in instances
like
this it is necessary.
[17]
Accused 2 is 33 years old, unmarried and has two daughters aged 5 and
7 years.  Mr Roelofse,
on his behalf, advised me that Accused 2
was employed by Accused 1 as a site manager in his construction
business earning a sum
of R1500.00 per week.  He left school in
standard 6 because he had learning problems.  He is forgetful
and that impacted
on his learning abilities.
[18]
Accused 3 is 39 years old.  He has been married for six years.
His wife is unemployed.
He has children he is looking after who
are 12 and 16 years old.  He is also looking after his step
child.  He is working
for his brother.  He is a qualified
welder.  He has recently been promoted to be a supervisor at his
work and is earning
a net salary of R10 000.00.  He had
been suffering from depression and anxiety.  His brother has
undertaken to pay
a fine of up to R100 000.00.
[19]
Accused 1 was convicted of the contravention of the MLRA regulations
on 28 November 2005 and
was sentenced to twelve month imprisonment
which was wholly suspended conditionally for five years.  He was
further convicted
of possession of an unlicensed firearm on 24 May
2013 and was sentenced to pay R5000.00 or ten months imprisonment.
The latter
conviction is not relevant for purposes hereof.  The
former is more than ten years old.
[20]
Accused 2 has no previous convictions.  Accused 3 has two Road
Traffic previous convictions
which are not relevant hereof.  He
has a previous conviction of contravening the MLRA regulations and
was on 20 September
2005 sentenced to six months imprisonment wholly
suspended for five years conditionally.
[21]
These offences were committed after the year 2013.  In fact they
date back to the year 2015.
This was after
Peter Michael
Roberts,
who was an abalone poacher was sentenced on 1 March
2013.  I have referred to his case above.  In sentencing Mr
Roberts,
Chetty J made the following appropriate remarks:
“
[13]
The seriousness of the offences appears not to have unduly troubled
the accused.  The fines
imposed on accused no’s 1 and 3
and their previous brushes with the law appears to have lulled them
into a
false sense of belief that imprisonment for abalone
poaching was the last resort of the sentencing court
.
.
.
.
[15]
The perception appears moreover to be reinforced by the non-custodial
sentences imposed
on accused no’s 1, 3 and 5 for their previous
poaching violations.  This perception needs to be laid to rest.
The imposition of non-custodial sentences for transgression of the
regulations has had no deterrent effect whatsoever.
Poaching
continues unabated, with ever increasing frequency and the time has
arrived for a complete re-assessment of the sentencing
options
”.
(Emphasis added)
[22]
As alluded to, the accused committed these offences in spite the
conviction and sentence of eighteen
(18) years imposed on
Mr
Roberts
.  He was not deferred but instead carried on.
The
Robert
matter went on appeal to the full bench of this
division.
In
the appeal judgment in the matter delivered on 25 August 2015, Beshe
J reviewed
a number of judgments in abalone poaching and reasoned as
follows:
“
[11]
Judging from the penalties ordained for a contravention of the
provisions of
Section 2 (1) of POCA
, it is clear that
racketeering activities or organised crime is viewed in a very
serious light.  The seriousness of the offences
in this matter
is also evident from
Ackermann J’s
remarks in
National Director of Public Prosecutions v Mohamed N.O.
[2002] ZACC 9
;
2002
(4) SA 843
CC.
Although the learned justice was
concerned mainly with provisions relating to preservation orders, he
was also alluding to the purpose
of the Act as a whole.  This is
what he had to say:
“
The purpose
of the Act and certain of its relevant provisions
[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 activity 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.
[15]
It is common cause that conventional criminal penalties are
inadequate as measures of deterrence
when organised crime leaders are
able to retain the considerable gains derived from organised crime,
even on those occasions when
they are brought to justice.  The
above problems make a severe impact on the young South African
democracy, where resources
are strained to meet urgent and extensive
human needs”.
[12]
The sentences imposed in the cases referred to by
Ms Crouse
also provide an illustration of the seriousness with which
racketeering activities are viewed by our courts as opposed to, for

example rhino poaching, abalone poaching or dealing in drugs which
does not amount to racketeering.  In an unreported decision
of
Jwara v S ([916]/13) [2015] ZACZA 33 (25 March 2015)
the
appellants who were convicted of numerous charges involving drugs and
were also convicted of contravening
Section 2 (1) (d) of POCA,
were sentenced to 25, 22 and 20 years imprisonment respectively.
They were unsuccessful in their bid to appeal against their

sentences.  In
S v Packereysammy
2004 (2) SA 169
SCA
on
the other hand, the appellant was in unlawful possession of 6140
abalone.  His appeal against a sentence of eighteen (18)
months
imprisonment was dismissed.  In a matter referred to by
Mr
Le Roux, S v Ndebele
2012 (1) SACR 245
(GSJ)
, for a
conviction in terms of
Section 2 (1) (e) and (f) of POCA
the accused were sentenced to terms of imprisonment ranging between
eighteen (18) and fifteen (15) years imprisonment.
[13]
There can be no merit in the submission that the court
a quo
did not give sufficient consideration to sentences previously imposed
for similar offences.  It is clear from the abovementioned
cases
that where racketeering was involved, severe sentences were imposed.
(See
S v Ndebele, S v Jwara
supra)”.
[23]
I agree with the reasoning of the full bench in this regard.
Having regard to the facts
of this case, I am unable to hand down a
sentence which is non-custodial.  I find the following sentences
to be appropriate:
[24]
Accused 1
:
Count 1:
The accused is sentenced to undergo eighteen (18) years’
imprisonment.
Count 4:
Three (3) years’ imprisonment.
Both sentences are
ordered to run concurrently.
[25]
Accused 2
:
Count 1:
Accused is sentenced to undergo fifteen (15) years’
imprisonment.
Count 2:
Fifteen (15) years’ imprisonment
Count 7:
Three (3) years’ imprisonment.
Count 8:
Two (2) years’ imprisonment.
Count 9:
Two (2) years’ imprisonment.
Count 10:
Two (2) months imprisonment.
Count 11:
Three (3) years’ imprisonment.
All the sentences are
ordered to run concurrently.
[26]
Accused 3
:
Count 2:
The accused is sentenced to undergo fifteen (15) years’
imprisonment.
Count 6:
Three (3) years’ imprisonment.
All the sentences are
ordered to run concurrent.
[27]
All the accused are declared unfit to possess fire arms.
[28]
Furthermore, all the other section 204 witnesses are indemnified from
prosecution in respect
of the current offences except Mr Martin
Phillip Kriel who did not give satisfactory evidence in respect of
count 12.
______________________
M
MAKAULA
Judge
of the High Court
For
the State:

Adv M Le Roux
National Director of
Public Prosecutions
Port Elizabeth
For
Accused 1:

Adv T Price SC
Port Elizabeth
Instructed
by:

Griebenow Attorneys
Port Elizabeth
For
Accused 2 and 3:

Mr P Roelofse
Port Elizabeth
Instructed
by:

Roelofse Meyer Attorneys
Date
Delivered:

1 March 2019
[1]
The
State v Roberts and Others
,
CC 20/2011 handed down on 1 March 2011;
State
v Blignaut
,
CC20/2018 handed down on 19 September 2018;
State
v Miller and Another
2018(2) SACR 75 and
State
v Blignaut and
Others
2018(1) SACR 587 (ECP).