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 72
|
|
Ndlovu and Others v S (CC90/2017) [2019] ZAECPEHC 72 (31 October 2019)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN
CAPE DIVISION – PORT ELIZABETH)
Case
No.: CC90/2017
In
the matter between:
JABULANI
NDLOVU
First
Applicant
FORGET
NDLOVU
Second Applicant
SIBUSISO
NDLOVU
Third Applicant
and
THE
STATE
Respondent
JUDGMENT
(BAIL
APPLICATION)
REVELAS
J
:
INTRODUCTION
1.
The three applicants in this application for bail pleaded not guilty
to, but were nonetheless convicted of,
various charges arising from
ten different incidents of rhino poaching in the Eastern Cape
(Albany, Jansenville, Graaff Reinet
and Cradock). The charges
included theft of rhino horn; attempted theft of rhino horn (count 36
in respect of accused numbers 1
and 3 only); contravening section
57(1) of the National Environmental Management Biodiversity Act 10 of
2004 (activities involving
protected species without a permit);
contravening section 29(k) of the Cape Provincial Ordinance on Nature
and Environmental Conservation,
19 of 1974 (activities involving wild
animals by means of a device injecting an intoxicating or narcotic
agent into the said rhino
without holding the relevant permit);
contravening section 22A (1) of the Medicines and Related Substances
Act, 101 of 1965 (illegal
possession of schedule 6 medicine or
substance), being in possession of M99 (Etorfine) and or
Theafentanil; contravening
section 90
of the
Firearms Control Act, 60
of 2000
read with
section 250
of the
Criminal Procedure Act, 51 of
1977
in that they possessed .22 calibre ammunition without the
relevant permits.
2.
The logistics regarding the ten poaching incidents were the
following:
2.1.
On Bucklands farm (Albany), the horn of one rhino was stolen after
the animal was killed
17 - 18 June 2016, by darting him and then
removing his horn in a way that traumatically exposed his nasal
airways and sinuses,
causing him to die. The rhinoceros in question
was named Campbell and he was owned by Mr Ian Steward.
2.2.
On 19-20 October 2013, at the farm of C Kunal or J Smith,
Koffielaagte, in Jansenville,
four rhino horns were stolen.
2.3.
On the farm Mount Camdeboo, the property of Mr R Slater in the
district of Graaff Reinet,
six rhino horns were stolen in three
separate incidents which occurred respectively on 11-13 May 2014, 7-8
November 2014 and 1-3
March 2015.
2.4.
On the farm of Mr Erwin Tam, Klein Doornberg in the district of
Cradock two rhino horns
were stolen. This occurred on 30 January - 1
February 2016 and 15-16 May respectively.
2.5.
Also in the district of Cradock, on another farm owned by Mr Erwin
Tam, Spekboomberg, three
rhino horns were stolen on 17-18 March 2016,
21-22 April 2016 and 15-16 May 2016 respectively.
2.6.
Two black rhino horns were stolen on the property of Mr G Shaw of
Albany on 15-30 May 2016.
These horns were valued at R1.2 million.
3.
The applicants were each sentenced to serve an effective term of 25
years’ imprisonment each, after the
calibration of their
aggregate sentences in respect of all their convictions which
amounted to more than 500 years.
4.
The applicants were sentenced on 3 April 2019. On 5 July 2019 the
Supreme Court of Appeal gave the applicants
leave to appeal against
their convictions (on limited grounds regarding the admissibility of
certain items found in the possession
of the applicants) and against
their sentences on the basis that a Full Bench may find their
sentence shockingly inappropriate.
5.
During the trial it was common cause that on the various dates and
places listed in the schedule to the indictment,
the number of rhino
specified therein were darted with tranquilisers and a number of
horns removed and stolen from them. It was
further common cause that
all the rhinos died as a result of the high quantity of tranquilisers
they were darted with except for
one of the four rhinos on the farm
Koffie laagte in the Jansenville district on 19-20 October, one rhino
on Klein Doornberg farm
and the two black rhinos on Mr Shaw’s
property.
6.
It was further common cause that the three applicants were arrested
after 10pm on 17 June 2016 inside a chalet
(number 8) at the Makana
Resort in Grahamstown. In their possession, the following items, all
associated with rhino darting
and dehorning activities were
found:
6.1.
One rhino horn (freshly removed), a tranquiliser dart gun, darts,
Etorphine tranquiliser,
a yellow bow saw, rounds of .22 blank
ammunition, two knives, a side cutter plier, a cordless drill, six
cellular phone handsets
containing sim cards and one loose sim card.
7.
Also common cause was that the rhino horn in question was indeed
removed from Mr Steward’s rhino bull,
Campbell on Bucklands
farm and his DNA was found on the yellow bow saw found in the chalet.
8.
The applicants contested the admissibility of the overwhelming
evidence against the application relating to
the finding of the items
in the chalet on the basis that the search and seizure by the police
was conducted without a warrant.
Accordingly, it was argued, the
seizure was unlawful and unconstitutional.
9.
At the conclusion of the trial-within-trial which was conducted to
determine the admissibility of the aforesaid
evidence, Pickering J
ruled that the evidence in question was admissible. With regard to
the applicants’ convictions, the
Supreme Court of Appeal
granted leave to appeal against this finding only.
10.
All three applicants for bail have family ties in Zimbabwe although
the third applicant has no or little contact with such family.
His
father was Zimbabwean, but he was born in South Africa.
11.
The first applicant is 41, married and has five children. He conducts
business as an exporter of a wide variety of goods from
this country
to Zimbabwe. He lived in Edenvale before his arrest and his second
wife and children live there with her sister. The
first applicant’s
second wife has a law degree and was employed by Investec Bank until
her services were terminated after
her husband was convicted in the
present matter. According to the first applicant, his wife has
referred a dispute about her dismissal
to the Commission for
Conciliation Mediation and Arbitration. The applicant’s first
wife lives in
the Eastern Cape town of
Bedford. The first applicant has been in South Africa since 1997 and
he alleges that he has no desire
to return
to Zimbabwe. He stated that he has no travel documents.
He stated
that if he were to be released on bail he would be able to take a
loan, buy stock and continue doing business as an exporter
of goods
to Zimbabwe. Accordingly, he would be able to support his children
financially, since nobody is caring for them as far
as he knows, and
his second wife’s Unemployment Insurance Fund payments are
insufficient to sustain herself and their children.
12.
The second applicant is 39 years old and like the first applicant, a
Zimbabwean National. He used to live in George (Pacaltsdorp)
and made
a living raising and selling broiler chickens prior to his arrest.
His wife is a teacher and he has four children, and
he is charged
with the care of his brother’s two children as well. He has a
bond registered against his house and his monthly
repayment
instalments amount to about R1200, 00 per month.
13.
The third applicant is unmarried, has three children who are
presently supported by their mothers. He was a taxi driver and
also
made and installed aluminium windows. He no longer has a vehicle as
that was seized by the State. He stated that although
his father is
from Zimbabwe he grew up in Fort Beaufort and both his parents have
died. He has only been to Zimbabwe on one occasion
and has no travel
documents. He said he would not want to live in Zimbabwe.
14.
All three applicants argued that their present incarceration prevents
them from continuing to make a living outside prison.
They argued
that they were the only persons who were in a position to take care
of their families, particularly the children. In
addition, they
contended, they needed to generate an income to enable them to retain
the services of their current senior counsel
who presented them in
their trial before Pickering J. The applicants were not prepared to
make use of legal aid representatives
at this late stage, as this is
their right.
15.
The applicants emphasized the fact that since their arrest in June
2016 and subsequent to their release from custody on bail,
they have
been exemplary in their meticulous adherence to their bail
conditions. Therefore it can safely be inferred that they
have no
intention to do anything different now, particularly because they
believe that they have very good prospects of their convictions
and
sentence being overturned at the conclusion of their appeal hearing
in the second term of next year. The applicants also rely
on the fact
that Smith J had previously granted them bail on the basis that they
were not flight risks. It was submitted on their
behalf that should
the appeal succeed on the one limited issue leave was granted by the
SCA, namely the admissibility of the evidence
against the applicants,
there will be no evidence against them to sustain a conviction.
16.
Mr Coetzee for the State argued that even if the SCA found that the
seizure of the items in question were unlawful because of
the failure
to obtain a warrant and the evidence obtained was inadmissible (an
unlikely prospect according to the State) there
was other
evidence presented which was not bedevilled by the question of
admissibility. In
this regards Mr Coetzee relied on the evidence that
before the seizure of the items found in the chalet, the police were
conducting
surveillance on the applicants as suspects. They had phone
numbers and the relevant cell phone records which place the
applicants
at the various points where the respective incidents of
darting, killing, maiming and theft of rhino horn occurred.
17.
Mr Coetzee further argued that in view of the long term of
imprisonment they would have to serve, should their appeals fail,
the
appellants would have a very strong incentive to abscond
and flee beyond the South African borders.
18.
Section 321
of the
Criminal Procedure Act, 51 of 1977
, as amended (the ‘CPA’)
regulates applications for bail after conviction. It provides that
the execution of the sentence
of a Superior Court “
shall
not be suspended”
by reason of any appeal against conviction unless the trial
court “
thinks
it fit to order”
that the accused be released on bail. Since an appeal requires leave
to appeal, the granting of leave may be regarded as an indication
of
prospects of success on appeal. This on its own does not entitle a
convicted person to bail pending an appeal.
[1]
The accused therefore has to place evidence and circumstances before
court, which can be viewed as exceptional to persuade a court
to
grant bail, pending the appeal.
[2]
19.
In the mere
fact that a sentenced person has been granted leave to appeal
does not constitute an exceptional circumstance.
What is required is
that the court consider all relevant factors and determine whether
individually or cumulatively they warrant
a finding that
circumstances of an exceptional nature exist which justify her or his
release. What is exceptional cannot be defined
in isolation from the
relevant facts. The Legislature clearly had in mind circumstances
which remove a bail application from the
ordinary run and which serve
at least to mitigate the serious limitation of freedom which the
Legislature has attached to the commission
of certain offences. ”
The
prospects of success may be such a circumstance, particularly if the
conviction is demonstrably suspect. It may, however, be
insufficient
to surmount the threshold if, for example, there are other facts
which persuade the court that society will probably
be endangered by
the appellant’s release or there is clear evidence of an
intention to avoid the grasp of the
law. The court will
also take into account the increased risk of abscondment which may
attach to a convicted person who faces the
known prospect of a long
sentence. Such matters together with all other negative factors will
be case into the scale with factors
favourable to the accused. If,
upon an overall assessment, the court is satisfied that circumstances
sufficiently out of
the ordinary to be deemed exception have
been established by the appellant and which, consistent with the
interests of justice,
warrant his release, the appellant must be
granted bail.”
[3]
20.
Of greater
importance is the seriousness of the crime, the risk of flight, real
prospects of success on conviction, and real prospects
that a
non-custodial sentence might be imposed.
[4]
21.
There is little doubt that the applicants have been convicted of many
and very serious, heinous crimes. Unfortunately, as Pickering
J
pointed out in his judgment on sentence, that the applicants do not
appear to grasp the enormity of what they have done. Given
the
observations made by Pickering J with regard to the seriousness of
the crimes in question, based on the testimony of the State
witnesses, the applicants’ sentences will not be substituted by
non-custodial sentences if their convictions are upheld.
22.
Reference has already been made to the fact the evidence which was
ruled admissible was not the only evidence against the applicants.
Should Pickering J’s ruling be set aside, that does not
necessarily mean success in the appeal. If his Lordship’s
ruling survives the appeal, the applicants would have to serve a long
custodial sentence. Having carefully read the thoroughly reasoned
judgment of Pickering J, the applicants’ chances of
success are, in my view, by no means a certainty. The convictions
in
question most certainly are not “
demonstrably suspect”
as referred to in
Bruintjies
.
23.
All three the applicants are capable of, if they have to, to
continuing with a life outside this country, in Zimbabwe. I am
in
agreement with the State’s assertion that now that the
applicants are aware of what period of imprisonment they are facing,
they are far more likely to become flight risks than before they were
convicted.
24.
The personal circumstances of the applicants are in my view not
sufficiently exceptional to justify granting of bail. One of
the
consequences of being convicted of a serious offence is a substantial
custodial sentence and if the convicted person was the
only
breadwinner, his family will suffer financially. That may be a tragic
reality, but it does not equate to an exceptional circumstance
sufficient to justify releasing the application on bail.
25.
In the circumstances, I decline to grant the applicants’ bail
pending the outcome of their appeal hearing.
26.
In the circumstances, the following order is made:
The application for bail
is dismissed in respect of all three applicants.
E
REVELAS
Judge
of the High Court
Appearing
on behalf of the Applicants: Adv T Price SC
Appearing
on behalf of the Respondent: Adv J Coetzee
Date
heard: 21 October 2019
Date
delivered: 31 October 2019
[1]
S v
Mthembu
1961 (3) SA 468
(D) at 471 A
[2]
S
v Bruintjies
2003 (2) SACR 578
SCA para 8
[3]
Bruintjies
paragraph [6] at 577 e-i
[4]
S v
Masoanganye
2012 (1) SACR 292
at 295 i - 296 a