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[2017] ZASCA 117
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Els v S (1241/2016) [2017] ZASCA 117; 2017 (2) SACR 622 (SCA) (22 September 2017)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 1241/2016
In
the matter between:
JAN
KAREL
ELS
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Els
v The State
(1241/2016)
[2017] ZASCA 117
(22 September 2017)
Coram
Bosielo, Seriti and
Saldulker JJA and Plasket and Tsoka AJJA
Heard:
17 August 2017
Delivered:
22 September 2017
Summary:
Appeal against
sentence - environmental offences - unlawful purchasing, possession
and conveying of rhinoceros horns without a permit
- in contravention
of the Limpopo Environmental Management Act 7 of 2003 - misdirection
by the trial court - appeal court entitled
to interfere - four years’
imprisonment appropriate.
ORDER
On
appeal from
:
Gauteng Division of the High Court,
Pretoria (Fourie
and Mabuse JJ
sitting as court of appeal):
1.
The appeal is upheld.
2.
The sentence imposed by the trial court in
respect of counts 5 and 6 is set aside and substituted with the
following:
‘
Counts
5 and 6 are taken together for the purposes of sentence and the
accused is sentenced to four years’ imprisonment’.
3.
The suspended sentence on count 7 remains
unaltered.
JUDGMENT
Saldulker
JA (Bosielo and Seriti JJA and Plasket and Tsoka AJJA concurring):
[1]
This appeal is against sentence only. The appellant, Mr Jan Karel Els
(Els) a game consultant manager, was charged in the regional
court of
Musina (trial court), Limpopo with seven counts for the contravention
of the Limpopo Environmental Management Act 7 of
2003 (LEMA). Counts
1 to 4 related to the contraventions of s 31(1)(
a
)
of the LEMA,
[1]
(read with s 1
and 117(1)(
a
)(
i
)
of LEMA), which are the unlawful, wrongful and intentional hunting of
a specially protected wild animal by darting or immobilising
the said
animals by any means or method for trophy purposes without a valid
permit. Counts 5 to 7 related to the contraventions
of s 41(1)(
a
)
of LEMA
[2]
(read with s 1
and s 117(1)(
a
)(
i
)
of LEMA),
[3]
which related to
the unlawful purchasing, possessing and conveying of the horns of a
specially protected wild animal without a
valid permit.
[2]
On 2 March 2012, the State withdrew counts 1 to 4 against the
appellant. The appellant pleaded guilty to counts 5 to 7
and
made a statement in terms of s 112(2) of the Criminal Procedure Act
51 of 1977 (the CPA).
[4]
The
State accepted the plea, whereafter he was convicted on the said
counts. Count 5 related to the purchasing, possession and
conveying
of 30 rhinoceros (rhino) horns without a valid permit; count 6
related to the receiving of four rhino horns without a
valid permit;
and count 7 related to the conveyance of eight rhino horns (being his
property) without a valid permit.
[3]
On 13 March 2012, the trial court sentenced the appellant as follows:
counts 5 and 6 were taken as one for sentencing purposes
and he was
sentenced to ten years’ imprisonment, of which two years was
suspended for five years on condition that the appellant
is not
convicted of contravening s 41(1)(
a
)
of Act 7 of 2003,
[5]
during the
period of suspension. In respect of count 7 he was sentenced to four
years’ imprisonment suspended for five years
on condition that
he is not convicted of contravening s 41(1)(
a
)
of Act 7 of 2003
[6]
during the
period of suspension. In addition thereto, he was sentenced to a
compensatory fine of R100 000 per month, payable to
the National
Wildlife Crime Reaction Unit over a period of ten months for purposes
of investigation into rhino related matters.
[4]
Dissatisfied with the sentence imposed, the appellant launched an
appeal against the sentences. The trial court refused the
application
for leave to appeal. Aggrieved by this, the appellant petitioned the
Gauteng Division, of the High Court, Pretoria
for leave to appeal
against the sentence, which was partially successful. On 5 August
2014, the appeal against sentence in respect
of count 5 – 7 was
heard by the court a quo (Fourie and Mabuse JJ concurring), who set
aside the compensatory fine of R100
000. However the court a quo left
the effective sentence of eight years’ imprisonment on counts
5, 6 and the suspended sentence
on count 7 unaltered. The present
appeal is with the leave of the court a quo.
[5]
Before I turn to consider the content of the statement made by the
appellant in terms of s 112(2) of the CPA, it is necessary
to
consider the general import of the preamble to the charge - sheet,
which reads as follows:
‘
Maremani
Nature Reserve (Pty) Ltd is a privately owned farm situated at Musina
in the Regional Division of Limpopo. The said farm
is fenced. The
main purpose of Maremani Natural Reserve is nature conservation,
although hunting occurs on occasions.
Various
wild animals are kept on the farm, including Rhinoceros White
(Ceratotherium simum) and Rhinoceros black (Diceros bicornis).
AND
WHEREAS at all material times the late Mr Thomas Frederick Fourie,
was appointed to manage the farm on behalf of the owners,
a Danish
Consortium.
The
late Mr Thomas Frederick Fourie was furthermore tasked with the
responsibilities of managing the Maremani Nature Reserve and
to
protect the wildlife on the said Nature Reserve.
AND
WHEREAS during October 2009 the accused, with the assistance of a
helicopter pilot immobilized and dehorned 2 white rhinoceros.
Afterwards the horns, 4 in total, were bought without the necessary
permits, from the late Mr Thomas Frederick Fourie.
AND
FURTHERMORE during October 2009 the accused once again immobilized
and dehorned 6 white rhinoceros and 5 black rhinoceros with
the
assistance of a helicopter pilot and a veterinarian. Afterwards the
accused bought the horns, 22 in total, from the late Mr
Thomas
Frederick Fourie.
AND
FURTHERMORE on 16 June 2010 the accused once again immobilized and
dehorned two white rhinoceros with the assistance of a helicopter
pilot and a veterinarian. Afterwards the accused bought the horns,
four in total, from the late Mr Thomas Frederick Fourie.
AND
FURTHERMORE during July 2010 the accused once again immobilized and
dehorned 5 white, his own rhinoceros, with the assistance
of a
helicopter pilot and a veterinarian. Afterwards the accused bought
the rhinoceros (7) from the Limpopo Valley Conservancy
or Mr Jeremiah
Jesia Cronje, he conveyed horns (8) without the necessary permits to
Thabazimbi.
AND
WHEREAS according to Schedule 2 of the Limpopo Environmental
Management Act, Act 7 of 2003 both Rhinoceros white and Rhinoceros
Blacks are Specially Protected Wild Animals.
FURTHERMORE
according to section 41(1) of the Limpopo Environmental Management
Act, Act 7 of 2003, no person may without a permit:
[a]
acquire, possess, convey, keep, sell, purchase, donate or receive as
a gift any special protected wild animals, protected wild
animals,
games, non-indigenous wild animal or animals referred to in Schedule
7 or 8.
AND
WHEREAS according to chapter 1 of the Limpopo Environmental
Management Act, Act 7 of 2003, “hunt” means hunt with
the
intention to kill, and
(a)
To dart or immobilize a
wild or alien animal by any means or method for trophy purposes: or .
. . .’
[6]
The events leading up to the commission of the offence appear largely
from the appellant’s written statement in terms
of s 112(2) of
the CPA. Therein the appellant explained the circumstances relating
to the illegal purchase, possession and conveying
of the rhino horns
as follows:
‘
Ek,
die ondergetekende,
Jan
Karel Pieter Els
.
. . .
3.
Op 30 Oktober op die Maremani Natuurreservaat het wyle Thomas
Frederick Fourie 30 (dertig) renosterhorings vir my te koop aangebied
en my meegedeel dat sy werkgewer hom opdrag gegee het om dit te
verkoop.
4.
Ons het op ‘n koopprys vir al die renosterhorings in die bedrag
van R760, 000 (SEWE HONDERD EN SESTIG DUISEND RAND) ooreengekom,
welke bedrag betaalbaar was in drie paaiemente welke paaiemente ek
betaal het.
5.
Ek het op dieselfde dag besit geneem van 26 (SES EN TWINTIG))
renosterhorings en die renosterhorings vervoer na my woning te
Thabazimbi.
6.
Ek het op 16 Junie 2010 die balans van 4 (VIER) renosterhorings wat
ek aangekoop het op die Maremani Natuurreservaat in besit
geneem en
dit vervoer na my woning te Thabazimbi.
7.
Ek het agt renosterhorings van my eie in Julie 2010 onwettig vanaf
Limpopo Valley Conservancy na my woning in Thabazimbi vervoer.
8.
Al bovermelde horings het ek sonder die nodige permitte vervoer en in
my besit gehou.
9.
Derhalwe is ek skuldig aan die oortredings soos omskryf in Aanklagte
5,6, en 7 deurdat ek in elkeen van die gevalle Artikel 41(1)(
a
)
van die Limpopo Omgewingsbestuurswet, Wet 7/2003 oortree het.
10.
Eh het tydens pleging van die misdryf geweet dat ek wederregtelik
optree.’
[7]
The appellant was convicted by the trial court on the basis of the
aforegoing statement in terms of s 112(2) of the CPA, and
no evidence
in respect of the merits was tendered. In mitigation, a statement in
terms of s 112(3)
[7]
of the CPA
with specific reference to the appellant’s personal
circumstances and the circumstances surrounding the offences
was
submitted on behalf of the appellant. I do not propose to deal with
it in any great detail and the following suffices for present
purposes.
[8]
The appellant stated that he was 39 years old (at the time of the
offence), a game catcher and game management consultant. As
a result
of these offences his occupation in the game trade had come to an
end. He had no intention of selling the rhino horns
illegally. His
intention was to collect the rhino horns hoping that when the trade
in rhino horns was legalised, he would sell
them for a profit. Mr
Fourie, the manager of Maremani Nature Reserve, had arranged for the
helicopters, pilots and veterinarians
for the purposes of dehorning
the rhinos, and none of the rhinos that were dehorned were injured
and/or killed during the dehorning
process. He stated that his
conduct in regard to these offences, without the necessary permits,
had to be distinguished from the
illegal hunting of rhinos (poaching
and killing). The rhino horns were stolen from him during September
2010, and as a result of
the theft he did not derive any benefit from
the horns. He was remorseful about his conduct and had co-operated
with the police
investigation.
[9]
In aggravation of sentence, the State called one Mr Scholtz from the
South African National Parks Board. Mr Scholtz testified
that he was
previously employed by the South African Police Service and worked
for the endangered species unit for about 11 years.
Several aspects
of his testimony did not relate to the offences that the appellant
had been found guilty of but related to poaching.
He testified about
the statistics in respect of the illegal hunting of rhinos, and the
value of the rhinos being killed, and their
diminishing numbers. His
testimony with regard to poaching was irrelevant and inadmissible. He
also testified about the unfounded
belief in some Far Eastern
Countries that rhino horns are used as medicines to cure certain
illnesses, which evidence was unrelated
to the charges the appellant
was convicted of.
[10]
In sentencing the appellant, the trial court took into account wide
ranging aspects linked to the current rhino poaching crisis,
which in
my view, constituted a clear misdirection The misdirections of the
regional magistrate are inter alia as follows: (a)
he misinterpreted
many of the facts and admissions in terms of the s 112(2) statement
of the appellant; (b) he considered factors
most of which were
irrelevant to the offences that the appellant had been convicted of;
(c) he referred to the illegal hunting
and/or the killing of rhinos
and the unlawful smuggling of and trade in rhino horns, all of which
in his opinion (without any factual
basis) was astronomically out of
control; (d) he referred further to the sale of the rhino horns to
foreigners, namely Chinese,
Vietnamese and Taiwanese, all of which
were totally contrary to the facts presented before him; (e) he then
further referred to
unknown and unconfirmed media reports and a
television programme in respect of poaching and illegal hunting,
which did not relate
to the appellant’s charges at all; (f) he
relied on his ‘general knowledge’ of illegal hunting of
rhinos in the
Kruger National Park where prostitutes were being
‘rented’ to shoot rhinos without any evidence being
tendered to prove
this ‘general knowledge’. This was
improper and untenable. (g) his reliance on the estimated figures
referred to by
Mr Scholtz in respect of rhinos illegally hunted
during 2009, was without any foundation and irrelevant to the present
charges.
These figures were transposed to the offences committed by
the appellant, as if the appellant was the poacher; (h) he
overemphasised
the seriousness of the present offences, which
resulted in the effective eight years’ imprisonment being
imposed on the appellant.
[11]
The regional magistrate furthermore misdirected himself by finding
that the appellant had been a participant in relation to
the charges
on counts 1 to 4. These charges had been withdrawn against the
appellant. It was improper for him to consider them
for sentencing.
He assumed that the rhinos had been hunted and killed, whilst they
were only dehorned and that Mr Fourie did not
have any permission to
dehorn the rhinos. These findings are totally contrary to the facts
and admissions made by the appellant
in his statement, which was
accepted by the State.
[12]
The court a quo held that it could not find that the trial court had
misdirected itself and was not convinced that the sentence
imposed,
except for the compensatory fine, was shockingly inappropriate. It
reasoned that there were aggravating circumstances
which the regional
magistrate had taken into account: firstly, that the appellant must
have known that Mr Fourie would not have
sold the rhino horns to him
lawfully and secondly, that the appellant misled the authorities in
an attempt that in future he would
obtain a permit to enable him to
possess and sell the rhino horns legally. There is no factual basis
for these assumptions. Like
the trial court, the court a quo relied
on the testimony of Mr Scholtz that poaching of rhinos had increased
since 2007, and as
a result of the demand for the horns, a total of
1066 rhinos had been killed unlawfully between the period of 2008 and
2012. The
trial court erred in treating the appellant as a poacher
who killed rhinos when he was not.
[13]
Additionally, the court a quo took the view that the legislature
deemed it fit that a maximum penalty of R250 000 or imprisonment
for
a period not exceeding 15 years or both such fine and imprisonment,
was a clear indication that these offences were not to
be dealt with
in a lenient manner. Whilst the penalty may, in certain circumstances
be laudable and deterrent, the facts in this
case did not call for
such a penalty. In the event, the court a quo held that the sentence
imposed by the trial court was a salutary
one, given that this was a
serious offence where the public interest played an important role
stating that: ‘What should
also be taken into account in my
view, is that people who are involved in this evil business, whether
by killing these animals
for their horns or by being illegally
involved in the buying and selling thereof, or by merely being in
illegal possession thereof,
are participating in the destruction of
the wild life heritage of this country’.
[14]
In my view, both the trial court and the court a quo made an
assumption incorrectly and without any rational basis that the
purchasing of the rhino horns by the appellant emanated from illegal
hunting of rhinos. This impermissible approach by both courts
lends
itself to a misdirection, entitling this Court to interfere. Before
us, counsel for the State conceded that there were several
misdirections committed by the trial court and this concession, in my
view, was correctly made. At the same time the State contended
that a
strong message had to be sent out that our environment had to be
protected.
[15]
It is trite law that sentencing is a matter pre-eminently in the
discretion of the trial court and a court of appeal will only
interfere with the exercise of such discretion when such discretion
was not properly exercised, or the sentence imposed is as a
result of
an irregularity or misdirection, or such sentence, having regards to
the nature and circumstances of the offence, is
disturbingly
inappropriate or induces a sense of shock.
[8]
[16]
Mr Scholtz who was called by the State conceded that the appellant
was not part of any smuggling network and that the appellant’s
position was totally distinguishable from those cases related to
poaching. By equating the appellant’s conduct to that of
poachers, the trial court misdirected itself.
[17]
Having listened to both counsel, I am not persuaded that a
non-custodial sentence is called for. Threat to the wildlife in
South
Africa has dramatically increased in recent years, and so has the
illegal trade in rhino horns. As a result, this species
is under a
serious threat of being slaughtered or otherwise exploited, for
economic gain. Sentences which reflect our censure will
go a long way
to safeguard the rhino from being economically exploited. Regrettably
a non-custodial sentence would send out the
wrong message.
[18]
Creating a safe haven for the fauna and flora of our land and our
heritage should resonate universally.
[9]
This Court expressed the following sentiments in
S
v
Lemthongthai
[10]
‘
[19]
The Constitution recognises that citizens have the right to have the
environment protected for the benefit of present and future
generations, through reasonable legislative and other measures that,
inter alia, promote conservation.
[20]
The duty resting on us to protect and conserve our biodiversity is
owed to present and future generations. In so doing, we
will also be
redressing past neglect. Constitutional values dictate a more caring
attitude towards fellow humans, animals and the
environment in
general . . . A non-custodial sentence will send out the wrong
message. Furthermore, illegal activities such as
those engaged in by
the appellant are fuel to the fire of the illicit international trade
in rhino horn.’
[19]
I align myself with the above sentiments. However the facts in this
case differ from
Lemtongthai
.
As a result the present appellant deserves a lighter sentence. As it
was held in the oft-quoted
S
v Zinn
[11]
,
a sentence must fit the crime, the criminal and be fair to society.
Furthermore, it remains a salutary principle of our law that
sentences have to be individualised to fit the peculiar circumstances
of each accused.
[20]
Accordingly, taking into account all of the above, the effective
sentence of eight years’ imprisonment imposed by the
trial
court on counts 5 and 6 appear to me to be inappropriate in the
circumstances of the present case. As a result, it has to
be set
aside. Having given a proper consideration to all the facts, a
sentence of four years’ imprisonment is appropriate.
[21]
In the result the following order is made.
1.
The appeal is upheld.
2.
The sentence imposed by the trial court in
respect of counts 5 and 6 is set aside and substituted with the
following:
‘
Counts
5 and 6 are taken together for the purposes of sentence and the
accused is sentenced to 4 years’ imprisonment.’
3.
The suspended sentence on count 7 remains
unaltered.
______________________
H
K Saldulker
Judge
of Appeal
APPEARANCES:
For
the Appellant:
J H Van der Merwe
Instructed by:
Phillip du Toit Attorneys, Pretoria
Van Pletzen Lambrechts
Attorneys, Bloemfontein
For
the Respondent:
P A Van Wyk SC
Instructed by:
Director of Public
Prosecutions, Pretoria
Director of Public
Prosecutions, Bloemfontein
[1]
31.
Hunting of Wild and Alien animals
- (1) No person may without a permit hunt—
(a)
specially protected wild animals;
[2]
41.
Prohibited acts regarding wild and alien animals
- (1) No person may without a permit—
(a)
acquire, possess, convey, keep, sell, purchase, donate or receive as
a gift, any specially protected wild animal, protected wild
animal,
game, non-indigenous wild animal or animals referred to in Schedules
7 or 8;
[3]
Penalties
-
(1) Any person who is convicted of an offence in terms of this Act
is liable—
(a)
in case of an offence referred to in—
(i)
sections 28(1), 31(1)
(a),
35(1), and 40(1), 41(1), 41(2),
42(1),49, 541)(i) and (j), 57 (1)
(a)
and
(b),
57(2),
58, 61(2), 64(1)
(a),
64(2)
(a),
69(1), 70, 76.
[4]
112(2)
Plea
of guilty:
If
an accused or his legal adviser hands a written statement by the
accused into court, in which the accused sets out the facts
which he
admits and on which he has pleaded guilty, the court may, in lieu of
questioning the accused under subsection (1)(
b
), convict the
accused on the strength of such statement and sentence him as
provided in the said subsection if the court is satisfied
that the
accused is guilty of the offence to which he has pleaded guilty:
Provided that the court may in its discretion put any
question to
the accused in order to clarify any matter raised in the statement.
[5]
Refer to fn
2.
[6]
Refer to fn 2.
[7]
(3)
Nothing in this section shall prevent the prosecutor from presenting
evidence on any aspect of the charge, or the court from
hearing
evidence, including evidence or a statement by or on behalf of the
accused, with regard to sentence, or from questioning
the accused on
any aspect of the case for the purposes of determining an
appropriate sentence.
[8]
S v de
Jager & another
1965 (2) SA
616
(A) at 628H-629.
[9]
Tsoka J at
para 20 in
S v
Lemtongthai
[2013] ZAGPJHC
294; 2014 (1) SACR 495 (GJ).
[10]
Navsa JA at
para 19 and 20 in
S
v Lemthongthai
[2014] ZASCA 131; 2015 (1) SACR 353 (SCA).
[11]
S v Zinn
1969 (2) SA 537
(A).