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[2020] ZALMPPHC 34
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Hlungwane v S (BA 21/2019; RC121/2014) [2020] ZALMPPHC 34 (4 June 2020)
REPUBLIC OF SOUTH AFRICA
IN THE IDGH COURT OF SOUTH
AFRICA
(LIMPOPO DIVISION, POLOKWANE)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES: YES/
NO
(3)
REVISED
APPEAL
CASE NO: BA 21/2019
COURT
A QUO
CASE NO: RC121/2014
4/6/2020
In
the matter between:
PETRUS
PATRICK
HLUNGWANE
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
MAKGOBA
JP
[1]
The Appellant and his five co-accused
were convicted and sentenced in the Regional Court in Tzaneen on 13
December 2018. They were
charged with contravening:
1.1.
Section
57(1)
of the
National Environmental Management: Biodiversity Act No.
10 of 2004
read with
section 101
(1) (a) as well as
sections 1
,
56
(1), Chapter 7 and
section 102
of the said Act, further read
with
section 250
of the
Criminal Procedure Act No. 51 of 1977
in that
the accused did on or about 5 August 2014 at or near Letsitele in the
Regional Division of Limpopo unlawfully and intentionally
carried out
a restricted activity involving a specimen of a threatened or
protected species by having, hunting, catching, capturing,
killing, gathering, collecting, plucking,
picking, cutting, chopping off, uprooting, damaging, destroying,
importing, exporting, having possession, exercising physical control
over; growing; breeding; propagating; conveying; moving;
trans
locating; selling; trading; buying; receiving; giving;
donating; accepting; acquiring; disposing of parts of
a rhino, to wit
a rhino legs, being a threatened or protected species, without a
permit issued in terms of Chapter 7 of the Act..
1.2.
In
the alternative,
contravening of
section 41(1)(a) of the Limpopo Environmental Management Act No. 7 of
2003, read with section 1, 112, 117 and 118
of the said Act, further
read with
section 250
of the
Criminal Procedure Act 51 of 1977
in
that upon or about 5 August 2014 and at or near Letsitile, the
accused did unlawfully and intentionally commit a prohibited
act
relating to a wild animal by acquiring, possession, conveying
keeping, selling, purchasing, donating or receiving as
a gift
two rhinoceros legs, being especially protected wild animal, without
a permit to do so.
[2]
All
the accused were found guilty on the alternatively charge and
sentenced to four years imprisonment each. The accused were all
legally represented during their trial. The Appellant was
accused number 2 at the trial.
[3]
In
convicting the six accused on the alternative charge the Court
a
quo
made
a finding that the State had proved beyond reasonable doubt that all
the accused committed a prohibited act relating
to a wild animal by
conveying and possessing two white rhinoceros legs being especially
protected wild animal without a permit
to do so. The Court a
quo
applied the principles of common
purpose.
[4]
The
Appellant approaches this Court on appeal against the conviction
only.
[5]
The
evidence for the prosecution was given by three police officers, all
members of the Tactical Response Task Team in Tzaneen.
Their version
is that on the 5th August 2014 they received information which lead
them to travel on the Tzaneen / Letsitele road
in search of a
specified motor vehicle. At the Eiland Road turnoff they spotted the
vehicle they were looking for, being a Hilux
bakkie. There were five
male persons on the back of that vehicle and a driver in the front.
They stopped next to the vehicle which
was stationary and ordered the
people to get off the vehicle. Four of the people on the back of the
vehicle alighted and the vehicle
drove off with accused number 6
still on the back of the vehicle.
[6]
The
four men, being accused number 2, 3, 4 and 5 were
arrested and left to be guarded by Constable Masindi. The
three
other police officers, Constable Selelo, Constable Manganyi and
Constable Makhubele persued the Hilux bakkie vehicle that
drove along
the Eiland Road. What followed was a high speed car chase of the
police vehicle with sirens and flashing
of lights
trying to pull over the Hilux bakkie. During the chase accused number
6 tossed two black bags from the back of the bakkie.
These two bags
were recovered by the police officers. After a chase that
spanned for about 14 to 15 kilometres,
the bakkie driver
(Accused number 1) who was being persued pulled over and the police
officers apprehended accused number
6 who was on the back
of the Hilux bakkie together with accused number 1.
[7]
The
two bags recovered after having been tossed from the bakkie contained
the legs of a white rhinoceros.
[8]
All
the accused testified at the trial. Accused number 1, being the owner
and driver of the Hilux bakkie testified that on that
day he picked
up hitchhikers, being accused number 2, 3, , 4 and 5. He picked up
accused number 2 at Acornhoek and then later picked
up accused 3, 4
and 5 at Hoedspruit. When he reached the turnoff on the Eiland Road
the four, accused, 2, 3, 4 and 5 alighted.
Accused number 6 then
hitchhiked a lift from accused 1 at that stage.
Accused 1 testified further that
he had no knowledge of any bags containing rhino legs that would have
been on his vehicle. He stated
further that he had no connection with
any of his co-accused save for the fact that he gave them a lift.
[9]
The
version of accused 2, 3, 4 and 5 is simply that they have no
connection with accused number 1. That they do not know each other
and had nothing to do with each other. They were merely hitchhiking
together. They did not notice anything on
the back
of the bakkie and were simply arrested by the police after alighting
from the vehicle of accused number 1.
[10] On
the conspectus of evidence placed before the Court a
quo
the following facts are common cause:
10.1.
The
animal material contained in the two black plastic bags emanating
from the scene of arrest of accused 1 and 6 are indeed the
legs of
the species white rhinoceros.
10.2.
Accused
2, 3, 4 and 5 were arrested at the Eiland turnoff where they alighted
from the vehicle driven by accused number 1.
10.3.
Accused
number 1, in his vehicle with accused number 6 on the back, left the
spot at the Eiland turnoff where he was stationary
and
proceeded along the Eiland Road.
10.4.
That
approximately 14 to 15 Kilometres from where accused 2, 3, 4 and 5
alighted from the Hilux bakkie, accused number 1 and 6 were
apprehended.
[11] The
Court a
quo
correctly rejected the versions of accused 1
and 6 and made a finding that the two bags containing
rhinoceros legs
were at all material times conveyed
in the Hilux bakkie driven by accused number 1. It is common cause
that accused
2, 3, 4 and 5 were passengers in the said bakkie. Their
version that they did not notice the said plastic bags inside the
bakkie
cannot be reasonably possibly true and was correctly rejected
by the Court a
quo.
However, the question that still remains
to be answered is whether they were in possession of the
two bags containing
the two legs of rhinoceros.
[12] The
Court a
quo
concluded as follows when convicting
accused 2, 3, 4 and 5 of conveying and possessing the
rhinoceros legs:
"All
of them were in
a
position that can
be inferred from the circumstances of direct physical control or in
the least mediate control. And that they all
had the required intent
to be in possession. If I may be wrong in my conclusion in this
regard, I do find that the principles of
joint possession would in
the least prove that accused 2, 3, 4 and
5
were in joint
possession with accused 1 and 6 who had direct physical control as
indicated in the evidence."
[13]
The concept of possession is defined by
Corbett JA in
S v Adams
1986 (4) SA
882
(A) at 890G-891B:
" In general the concept
of "possession" ("besit"), when found in
a
penal statute,
comprises two elements,
a
physical element
(corpus) and
a
mental element
(animus). Corpus consists either in direct physical control over the
article in question or mediate control through
another. The element
of animus may be broadly described as the intention to have corpus,
ie to control, but the intrinsic quality
of such animus may vary,
depending upon the type of possession intended by the
statute. At common law
a
distinction is
drawn between civil possession (possessio civilis) and natural
possession (possessio naturalis). Under
the former the animus
possidendi consists of the intention on the part of the
possessor
of
keeping the article for himself as if he were the owner. Under
the latter the animus need merely consist of the intention
of the
possessor to control the article for his own purpose or benefit, and
not as owner. In penal statutes, however,
the
term "possession" would seldom, if ever, be construed
as possessio civilis and this may, therefore, be
left out of account.
In the case of certain such statutes it has been held that
"possession" connotes corpus
and an
animus akin to that required for
possessio naturalis. In
others the courts
have interpreted "possession" to
comprehend corpus plus the
animus to control, either for the
possessor's own purpose or benefit, or on behalf of another (this
latter alternative being equivalent
to what is often termed "custody"
or detentio) or as meaning "witting physical detention, custody
or control (see
S v Brick
1973 (2) SA 571
(A), at p 580C)."
[14]
In the present case it was stated in the
charge sheet that the State would rely on the doctrine of common
purpose in prosecuting
the accused. It is against this
backdrop that the Court a
quo
made
a finding that
"It clear from
the circumstances of this case as accepted by the Court through the
evidence of the prosecution witnesses that
all of the accused persons
were in the presence of these bags containing the rhino
legs, were aware of the contents
of these bags and intended to
be in control of these bags".
[15]
In my view the Court a
quo
erred in drawing an inference that
the accused were in possession and control of the two bags merely
because the said bags were
in their presence. This cannot be the only
inference which can be drawn in the circumstances of this case. Even
if the Court a
quo
were
to find that accused number 1 and 6 were in possession and conveyed
the two bags, it will be wrong for the Court to apply
the
doctrine of common purpose and conclude that the other passengers in
the Hilux bakkie were also in possession of
the two bags
containing two rhinoceros legs.
[16]
The application of the doctrine of
common purpose in matters relating to joint possession was jettisoned
by the Supreme Court of
Appeal in the case of
S
v Mbuli
2003 (1) SACR 97
(SCA)
where
Nugent JA at para 71 said:
"[71] What is prohibited
by both those sections is the existence of
a
state of affairs
and
a
conviction
will be competent only if that state of affairs is shown
to exist. That state of affairs will exist
simultaneously in respect
of more than one person if they have common (joint) possession of the
offending article. Their contravention
of the relevant section in
those circumstances does not arise from an application of the
principles applicable to common purpose
(which is concerned with
liability for joint activity) but rather from an
application of ordinary principles relating
to joint
possession. Common purpose, and joint possession,
both require that the parties concerned
share a common
state of mind but the nature of the state of mind will differ in each
case….".
[17]
In the
Mbuli
case the principles relating to
joint possession were crystallized when it was decided that the
issues which arise in deciding whether
a group possessed a prohibited
thing / object must be decided with reference to the answer to the
question whether the State has
established facts from which it can
properly be inferred by a Court that
(a)
the group had the intention
(animus)
to exercise possession of the thing
through the actual detentor and
(b)
the actual detentors had the intention
to hold the thing on behalf of the group. Only if both requirements
are fulfilled can there
be joint possession involving the group as a
whole and the detentors
[1]
.
See
also
S v Nkosi
1998 (1) SACR 284
(W) at 286h-i.
[18]
In my view joint possession would
require proof of the
animus
possidendi
on the part of each of
the accused. In the present case there is no suggestion thereof in
the evidence on record. Mere knowledge
by the Appellant that accused
number 1 and 6 might have possessed the two bags in the bakkie does
not imply an intention to possess
those bags jointly.
[19]
In
S v
Motsema
2012 (2) SACR 96
(GSJ)
it
was held that:
1.
There is no rule of law to the
effect that, when an armed robbery is committed by two or more
persons with a common purpose
to commit the
armed robbery, joint possession of the weapons used in the robbery is
to be inferred. Joint possession
of the weapons can only be inferred
if the facts proved leave no room for any reasonable inference other
than that:
(a)
Each participant in the common purpose
to rob who had physical control of a weapon intended not merely to
use it but also to possess
it, both for himself and also on behalf of
one or more other participants; and
(b)
Each alleged joint possessor who did not
himself have physical control of a weapon intended that one or more
of the weapons should
not merely be used but should also be possessed
by another participant on his behalf
[2]
.
[20]
On the basis of the decisions in
Mbuli
[3]
and
Nkosi
[4]
the above
ratio
decidendi
in
Motsema
[5]
is now settled law.
[21]
In the circumstances I do not agree with
the finding of the Court a
quo
that
the only reasonable inference from the evidence is that the
Appellant, accused 3, 4 and 5 possessed the two legs of rhinoceros
jointly. It is equally possible that the two legs of rhinoceros were
possessed by only accused number 1 as the owner and driver
of the
Hilux bakkie or accused number 6 who tossed them from the bakkie when
the police officers were advancing the bakkie. Mere
knowledge and
even acquiescence by the Appellant and accused 3, 4
and 5 in the presence of the two legs of rhinoceros
in the bakkie is
not sufficient to make them joint possessors.
The evidence on record does not
establish which of the six accused was in actual possession of the
two bags containing the two legs
of rhinoceros, save for the fact
that it can be inferred that the two bags were conveyed in a motor
vehicle belonging to and driven
by accused number 1.
[22]
I am therefore of the view that the
State has not proved facts from which it can be inferred as the only
reasonable inference that
the Appellant as well as accused 3, 4 and 5
intended to possess either individually or jointly the two legs
of rhinoceros
conveyed in the motor vehicle driven by accused number
1. In the result the appeal against conviction should succeed.
[23]
Although there are no appeals by accused
3, 4 and 5 it is appropriate in the light of our findings that their
convictions should
be reviewed. The State conceded that the appeal be
upheld and that the convictions in respect of the Appellant as well
as accused
3, 4 and 5 be set aside.
[24]
For these reasons I would make the
following order:
1.
The appeal is upheld.
2.
The Appellant's conviction is set
aside.
3.
The convictions of Accused 3
(Lucas Macheke), Accused 4 (John Chauke) and Accused 5 (Adolph
Ndlovu) are reviewed and set aside.
EM MAKGOBA
JUDGE PRESIDENT OF THE
HIGH COURT, LIMPOPO
DIVISION, POLOKWANE
I
agree
M GPHATUDI
JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION,
POLOKWANE
I
agree
M
V SEMENYA
JUDGE
OF THE HIGH COURT,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES
Heard
on
: 29 May
2020
Judgment
delivered on
: 4 June
2020
For
the Appellant
: Mr EH
Ludick
Instructed
: EHL Attorneys
For
the Respondent
: Adv.ME Muliwa
Director of Public Prosecutions,
Limpopo
Division.
[1]
Mbuli, paragraph [71] AT 114h-115e
[2]
Per Joffe J at paragraph [29].
[3]
S v Mbuli 2003 (1) SACR 97 (SCA)
[4]
S v Nkosi 1998 (1) SACR 284 (WLD)
[5]
S v Motsena
2012 (2) SACR 96
(GSJ)