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[2019] ZAGPPHC 229
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Wilkinson and Another v National Director of Public Prosecutions and Others (50395/2016) [2019] ZAGPPHC 229; 2019 (2) SACR 278 (GP) (5 June 2019)
IN THE HIGH COURT OF SOUTH
AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
REPORTABLE:
YES
(2)
OF
INTEREST TO OTHER JUDGES: YES
(3)
REVISED:
YES
Case
Number:
50395/2016
5/6/2019
In
the matter between:
JOSEPH
JOSHUA WILKINSON
First Applicant
DAVID JACOBUS STEYN
Second Applicant
and
THE
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
First Respondent
THE
MINISTER OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
Second Respondent
THE
PREMIER OF GAUTENG
Third Respondent
THE
PREMIER OF NORTH WEST
Fourth
Respondent
THE
PREMIER OF LIMPOPO
Fifth Respondent
THE PREMIER OF KWA-ZULU NATAL
Sixth Respondent
THE
MEC OF GAUTENG OF ENVIRONMENTAL AND
CONSERVATIONAL AFFAIRS
Seventh Respondent
THE
MEC OF NORTH WEST OF ENVIRONMENTAL AND
CONSERVATIONAL
AFFAIRS
Eighth Respondent
THE
MEC OF LIMPOPO OF ENVIRONMENTAL AND
CONSERVATIONAL
AFFAIRS
Ninth Respondent
THE
MEC OF KWA-ZULU NATAL OF ENVIRONMENTAL
AND CONSERVATIONAL AFFAIRS
Tenth Respondent
THE
MINISTER OF ENVIRONMENTAL AFFAIRS
Intervener
(B)
Summary: Criminal law
-
Constitutionality
of reverse onus provisions
-
provincial
ordinances on nature conservation
-
application
premature
-
reverse onus
provisions justified
JUDGMENT
MOLEFE J
[1]
The applicants have been indicted to
stand trial in a criminal matter with eight (8) other accused
persons, on various criminal
charges which mainly relate to allegedly
operating a syndicate where they dealt with rhinoceros horns,
including the illegal transportation,
sale, and purchase of
rhinoceros horns. The first applicant is accused number 5, and the
second applicant is accused number 6 in
S
v
Ras &
9
Others
under case number CC132/2014
(the "criminal trial").
[2]
The applicants seek to challenge the
constitutionality of the reverse onus provisions contained in the
legislation in terms of which
they have been charged. They seek the
following relief:
2.1
that sections 110(1)(a) and 110(1)(c) of
the
Gauteng Nature Conservation
Ordinance 12 of 1998
(the
"Gauteng
Ordinance"),
be declared
unconstitutional or invalid;
2.2
that section 84(1)(c) of the
North-West
Nature Conservation Ordinance 19 of 1974
(the
" North-West Ordinance"),
be declared unconstitutional or
invalid;
2.3
that section 39 of the
Kwa-Zulu
Natal Nature Conservation Ordinance 15 of 1974
(the
"KZN Ordinance"),
read
with the presumptions under section 57, and read with sections 33(1),
37, 38 and 48(1)(a)(e), be declared unconstitutional
or invalid;
2.4
that certain criminal charges in the
criminal indictment against the applicants
[1]
,
be declared unconstitutional,
alternatively,
be declared as not constituting a
criminal offence.
[3]
The applicants' attack on the
constitutionality of the legislative provisions and of certain
criminal charges is based on their
reliance on an infringement of, or
threat to, the following fundamental rights:
3.1
the fundamental right to a fair trial
under section 34
[2]
and/or section 35(3) of the Constitution of the Republic of South
Africa 1996 (the "Constitution"), which includes a
right to
be presumed innocent, to remain silent and not to testify during the
proceedings.
3.2
the presumption of innocence, the right
to remain silent and not to testify during proceedings, provided for
in section 35(3)(h)
of the Constitution, and as a result of which,
since the advent of the constitutional dispensation, several reverse
onuses have
been declared unconstitutional and thus invalid.
[4]
The applicants also rely on the setting
aside of the
"national
moratorium on the trade of individual rhinoceros horns within South
Africa".
The moratorium was
imposed by the Minister of Environmental Affairs and Tourism (as that
office was then known
[3]
)
in terms of section 57(2) of the National Environmental Management:
Biodiversity Act 10 of 2004 ("NEMBA"). The moratorium
was
set aside by this Court in
Kruger and
Another v Minister of Water and Environmental Affairs and Others
[4]
.
It is the applicants' argument that
although the Minister has petitioned the court to set aside that
decision, any charge based
on the moratorium is not an offence at
all. This they argue is because prior to the moratorium, the
possession or transportation
of rhinoceros horns was not a crime.
[5]
At the hearing of the application, the
applicants requested that I should not adjudicate on the moratorium
with regard to the trade
of rhinoceros horns, as this part of the
application will be considered by a Full Bench of this Court, when
the applicants file
a joinder with another matter which also relates
to the moratorium. The moratorium on the trade of rhinoceros horns
will therefore
not be adjudicated in this application.
[6]
This application is opposed by the first
respondent, the National Director of Public Prosecution ("NDPP").The
NDPP, through
an assigned prosecutor, has been involved in
prosecuting the criminal charges against both applicants. The
interlocutory application
by the Minister of Environmental Affairs
Minister to intervene in this application is not opposed by any of
the parties. I am satisfied
that a proper case for intervention has
been made out as the Minister has a direct and substantial interest
in the relief sought.
The intervention application is granted, with
no order as to costs. The Minister opposes the relief sought by the
applicants.
Legal
Principles
Gauteng Nature Conservation
Ordinance
[7]
Section 110(1)(a) of the
Gauteng
Ordinance
provides:
"Where at criminal
proceedings in terms of this Ordinance
-
(a)
Any
person is charged with the unlawful hunting or catching of
a
wild animal,
exotic animal or invertebrate, the unlawful catching of fish or the
unlawful picking of an indigenous plant, it is
proved that such
person possessed or handled
a
wild animal,
exotic animal, invertebrate, fish, or indigenous plant, he or she
shall be deemed to have hunted or caught such wild
animal, exotic
animal or invertebrate, to have caught such fish or to have picked
such indigenous plant in contravention of this
Ordinance;
…
until the contrary is proved."
[8]
The phrase
"
until the contrary is proved",
is
the classical formulation for a reverse onus provision.
[9]
The two applicants are not charged with
the unlawful hunting or catching of certain animals or fish, and/or
the unlawful picking
of indigenous plants. There is also no
indication in the summary of facts in the criminal indictment that
the prosecution intends
to rely on this specific reverse onus
provision.
[10]
At the hearing of this application, both counsels for the applicants
conceded that the reference
to section 110(1)(a) of the
Gauteng
Ordinance
was an error. This challenge against the
constitutionality of section 110(1)(a) of the
Gauteng Ordinance
is
therefore dismissed.
[11]
Section 110(1)(c) of the
Gauteng
Ordinance
provides:
"(1) Where at
criminal proceedings in terms of this Ordinance
-
(c)
it is proved that
a
wild animal, exotic animal, fish or
indigenous plant
was
upon
a
float,
vessel, hovercraft, aircraft or vehicle or at
a
camping place, every person who
was
upon or in any way associated with
the camping place shall be deemed to have been in possession of such
wild animal, exotic animal,
fish or indigenous plant;
…
until the contrary is proved."
The phrase
" until the
contrary is proved'
is the classical formation for a reverse onus
provision.
North-West Nature and Environment
Conservation Ordinance
[12]
Section 84(1)(c) of the
North-West
Ordinance
provides:
"84. Presumptions
(1)
In any prosecution under this
ordinance
–
….
(c)
Any wild animal, the
carcass
of
any such animal or any fire-arm having
a
barrel exceeding one hundred
millimeters in length, found or proved to have been in or on any
vehicle, vessel, boat, craft, float,
aircraft or other means of
conveyance, shall unless the contrary is proved, be presumed to have
been in possession of the person
in charge of such vehicle, vessel,
boat, craft, float, aircraft or other means of conveyance at the
relevant time.
.."
The
formulation used in this presumption is the classical formula for a
reverse onus provision.
Kwa-Zulu
Natal Nature Conservation Ordinance
[13]
Section 39 of the
KZN Ordinance
provides:
"Possession, dealing or
handling of game reasonably suspected to have been unlawfully hunted
and presumption
(1)
Whenever any person is or has
been in possession of or deals or has dealt in or handles or has
handled any game and there exists
at any time
a
reasonable suspicion that such game
was
hunted
or acquired unlawfully he shall be guilty of an offence unless he
proves the contrary.
(2)
Whenever any game is upon any
vehicle or at any camping place, every person who is in any way
associated with such vehicle or who
is at or in any way associated
with such camping place shall be deemed to be in possession of such
game for the purpose of subsection
(1)"
The
phrase
" unless he proves to the contrary"
is the
classical formulation of a reverse onus provision.
[14]
Section 57(1) and 57(2) of the
KZN
Ordinance
reads as follows:
"(1) Any
person who is in possession of any game shall be deemed to have
hunted or captured such game in contravention
of Section 33(1) or, as
the case may be, of Section 37 or 38, unless it is proved that he
was
in lawful
possession of the
same.
(2)
If
any person is found removing game from any trap or snare it shall be
presumed until the contrary is proved that he hunted or
captured such
game in contravention of Section 48(1)(9).
(3)
Any
person who is found conveying game between half-an-hour after sunset
on any day and half-an-hour before sunrise the following
day shall be
deemed to have contravened Section 48(1)(e) unless in any prosecution
the contrary is proved."
Again
in these provisions, there is the classical formula of a reverse onus
provision.
Charges against the applicants
[15]
The first applicant has been charged on
the following counts:
15.1
Charge 48: the common law crime of theft
of two rhinoceros horns;
15.2
Charge 50: the statutory offence of
possession of two rhinoceros horns without a permit in contravention
of regulation 41A(1) of
the
Gauteng
Nature Conservation Regulations
[5]
;
15.3
Charge 51: the statutory offence of
selling two rhinoceros horns without a permit in contravention of
section 32(1) of the
Gauteng
Ordinance
[6]
;
15.4
Charge 52: the statutory offence of
money-laundering in contravention of section 4 of the
Prevention
of Organised Crime Act 121 of 1998 ("POCA”);
15.5
Charge 69: the statutory offence of
transporting and exporting a rhinoceros cow through and from
North-West Province to the Limpopo
Province without a permit in
contravention of section 47A(1)(a) of the
North
West Ordinance
[7]
.
15.6
Charge 70: the statutory offence of
keeping the rhinoceros cow without a permit in contravention of
section 41(1)(a) of the
Limpopo
Environmental Management Act 7 of 2003
[8]
.
15.7
Charge 71: the statutory offence of
purchasing or acquiring two rhinoceros horns without a permit in
contravention of section 49(2)
of the
KZN
Ordinance
[9]
;
15.8
Charge 78: the statutory offence of
possession of six rhinoceros horns without a permit in contravention
of regulation 41A(1) of
the
Gauteng
Nature Conservation Regulations;
15.9
Charge 91: the statutory offence of
conspiracy to aid, or procure the commission of, or to commit, any
offence in contravention
of section 18(2)(a) of the
Riotous
Assemblies Act 17 of 1956,
namely
the offence or contravention of:
15.9.1
statutory trespass under the provisions
of the
Trespass Act 6 of 1959; and
15.9.2
sections 16A(1)
[10]
,
32
[11]
and 41A(1)
[12]
of the
Gauteng Ordinance.
15.10
Charge 109: the statutory offence of
intimidation in contravention of
section 1(1)(a)(ii)
of the
Intimidation Act 72 of 1982
;
15.11
Charge 227: the statutory offence of
receiving two rhinoceros horns without having reasonable cause for
believing at the time such
rhinoceros horns were hunted or acquired
lawfully in contravention of section 37(1)(c) of the
Gauteng
Ordinance
[13]
;
15.12
Charge 228: the statutory offence of
possession of two rhinoceros horns without a permit in contravention
of regulation 41A(1) of
the
Gauteng
Nature Conservation Regulations;
and
15.13
Charge 229: the statutory offence of
conveying two rhinoceros in contravention of section 38(1) of the
Gauteng Ordinance.
[16]
Of all these charges against the first
applicant, only charges 51; 71; 227 and 229 are listed in prayer 2(3)
of the Notice of Motion.
The respective charges where the provisions
of the
Gauteng Ordinance
were
enforced are charges 50; 51; 78; 227; 228 and 229.
[17] The
second applicant has been charged on the following counts:
17.1
Charge 71: the statutory offence of
purchasing or acquiring two rhinoceros horns without a permit in
contravention of section 49(2)
of the
KZN
Ordinance;
17.2
Charge 72: the statutory offence of
exporting two rhinoceros horns from KwaZulu-Natal to Gauteng without
a permit in contravention
of section 51(2) of the
KZN
Ordinance
[14]
;
17.3
Charge 73: the statutory offence of
possession of two rhinoceros horns without a permit in contravention
of regulation 41(A) of
the
Gauteng
Nature Conservation Regulations;
17.4
Charge 113: the statutory offence of
purchasing or acquiring two rhinoceros horns without a permit in
contravention of section 49(2)
of the
KZN
Ordinance;
17.5
Charge 114: the statutory offence of
exporting two rhinoceros horns from the Kwa-Zulu Natal Province to
the Gauteng Province without
a permit in contravention of section
51(2) of the
KZN Ordinance;
17.6
Charge 115: the statutory offence of possession of two rhinoceros
horns
without a permit in contravention of regulation 41A(1) of the
Gauteng Nature
Conservation Regulations.
[18] Of all the charges
against the second applicant, only charges 71; 72; 113 and 114 are
listed in prayer 2(3) of the Notice
of Motion. The second applicant
was charged in respect of the
KZN Ordinance,
and in respect of
charges 73 and 115, the prosecution relied on the
Gauteng Nature
Conservation Regulations.
Point
in limine
[19]
The Minister took the preliminary objection that this application
before a civil court is premature
and that the procedure followed by
the applicants is incorrect. On that basis, the Minister argued that
this application should
be dismissed with costs. Counsel for the
Minister submitted that there is also no indication that the
prosecution intended to rely
on the specified reverse onus
provisions.
[20]
In support of this contention, the
Minister relied on
S v Bequinot,
[15]
where the Constitutional Court stated:
"[14] The court
a
quo, which has to
deal daily with the hard realities of the criminal justice system is
better placed than this Court to evaluate
not only the effect of the
reversal of the onus under
s
37 on the
essential fairness of
a
criminal trial,
but also of the likely consequences of striking that provision or the
reverse onus it contains from the statute
book. The considered views
of experienced trial and appeal Court Judges on such matters are
valuable when this Court has to perform
the difficult balancing
exercise demanded of it by s 33(1) of the Constitution."
[21]
This procedural issue was recently dealt
with by the Supreme Court of Appeal in
Moyo
and Another v Minister of Justice and Constitutional Development and
Others; Sonti and Another v Minister of Justice and Correctional
Services and Others
[16]
where the majority decision reveals
the paradox:
"[157] In section 35 the
Constitution guarantees
a
range of rights
to arrested, detained and accused persons. Section 35(3) guarantees
to all accused persons the right to
a
fair trial. That
is secured in practice by the provisions of the Criminal Procedure
Act 51 of 1977 (the “CPA
”.
The appellants do
not seek to impugn the provisions of the CPA in any way, yet they are
seeking to assert their fair trial rights
before
a
civil court. That
should give pause for thought. Why are issues germane only in the
context of criminal proceedings being canvassed
and determined in
civil proceedings and not in the constitutionally compliant forum,
and in accordance with the constitutionally
compliant statute,
provided for the adjudication of criminal cases?
[158]...At an appropriate stage
and in appropriate proceedings
a
person charged
with
a
statutory
offence obviously has standing to challenge the constitutionality of
the statute under which they have been charged. The
concern in this
case is that it has been done outside the ambit of the criminal
proceedings, which is the only place where the
constitutionality of
the legislation is in issue. It is an abstract challenge and,
as
Madlanga J
rightly said in paragraph 13 of Savoi
[17]
,
courts generally and rightly treat abstract challenges with
disfavour."
[22]
Counsel for the Minister argued that the abstract and academic nature
of the present application
is based on the following:
22.1
the applicants did not attach the
criminal indictment to the founding papers and thus advanced a case
totally in the abstract;
22.2
factual information is not canvassed as
evidence under oath but is proffered in heads of argument;
22.3
there is no indication in the summary of
facts as set out in the criminal indictment that any of the impugned
legislative provisions
are indeed going to be relied upon by the
prosecutor.
[23]
A similar approach was previously taken
by the Full Bench of this Court in
Lodi
v MEG for Nature Conservation and Tourism, Gauteng and Others.
[18]
Despite the Court expressing a view
that section 110(1) and section 37(1)(c) of the
Gauteng
Ordinance
were unconstitutional and
invalid, the court found that the application was premature and
therefore refrained from making any such
declaration of
unconstitutionality. It concluded that the constitutional issue is
not decisive for the case and that it was not
in the interest of
justice to refer such issue prematurely.
[24]
Counsel for the first applicant argued
that it is in the interest of justice to consider this application at
this juncture . The
following reasons were advanced for this
argument:
24.1
The first applicant will be severely
prejudiced if he is tried as part of the alleged rhino poaching
syndicate. As only 13 of the
318 charges in the criminal trial
pertain to him, he will be obliged to attend the trial for a
continuous envisaged period of 6
months, at least, even though he
faces a minimal number of charges. It is submitted that it will
inevitably cause the applicant
huge financial and emotional
hardships;
24.2
In the event of an order of invalidity,
the State may reconsider whether it in fact possesses
prima
facie
proof of the relevant charges
against the first applicant. A reduction in the charges levelled
against him might lead him to no
longer falling within the scope of
POCA.
In
such a case, the State may be prompted to favourably consider the
first applicant's representation against his prosecution, or
to
successfully apply for a separation of trials in terms of section 157
of the
CPA,
which
will substantially reduce the length of his trial.
In
my view there is no merit in this argument.
[25]
Savoi
[19]
is
distinguishable from this matter, as it involved confirmation
proceedings where the Constitutional Court was obliged to accept
jurisdiction. In the present case, the issue is one of timing and
procedure. The Minister's concern is that this case has been
brought
in a civil court, outside the ambit of the criminal proceedings.
[26]
In my view, departures from the
procedures laid down in the
CPA
and
the removal of criminal proceedings to the civil courts should not be
encouraged. The criminal trial has not yet commenced and
the criminal
charges are yet to be adjudicated upon. Because the criminal charges
are yet to be adjudicated upon, the applicants
require this Court to
decide the constitutionality of the provisions of the various
Ordinances, without the benefit of the criminal
court findings on a
number of issues which have a bearing on the question of whether or
not the provisions should be declared unconstitutional.
[27]
In
S v
Beguinot ,
[20]
the Constitutional Court held:
"Quite apart from the
procedural deficiencies mentioned, there are
a
number of
substantive features of the course adopted in the court
a
quo that call for
a
comment.
The most important is that there is no identifiable rationale for the
referral. Neither the cryptic transcription of the
order issued in
court nor the document 'settled' by counsel indicates
(a)
why the court
a
quo
regarded the constitutionality of
s
37 of Act
62 of 1955 to be potentially decisive of the case before it: (b) why
it was considered to be in the interest of justice
to order referral
of that issue; (c) why the referral
was
made at
that juncture. before considering the appeal on non-constitutional
grounds.
As
this Court has tried to make plain,
a
positive finding
on each of those considerations is
a
prerequisite for
a
referral."
(own emphasis)
[28]
In my view, this application is
premature as it has been done outside the ambit of the criminal
proceedings. The applicants have
failed to indicate why the
constitutionality and/or the charges are to be considered decisive in
this matter. The applicants have
also failed to demonstrate why it
will be in the interests of justice that the constitutional issues be
adjudicated before the
consideration of the matter on non
constitutional grounds during the criminal trial.
[29]
The premature application, in my
opinion, further delays justice. I therefore find that the point
in
limine
raised by the Minister must
succeed, and on that basis alone, the application ought to be
dismissed. It must be accepted that the
ordinary procedure would be,
to challenge the constitutionality of the Provincial Ordinances at
the trial or in post-conviction
proceedings.
[30]
Despite my finding that the
constitutionality of the dispute is not decisive of the charges, I
would like to adjudicate on the constitutionality
of the various
Ordinances.
[31]
Although it may be in the context of a
particular statutory provision, and under the particular
circumstances of that statutory
scheme, a reverse onus provision may
theoretically be held to be unconstitutional because it unjustifiably
creates an unacceptable
risk that an innocent person may be convicted
of a crime. The proper approach has been set out by the
Constitutional Court in
S v Zuma and
Others
[21]
.
Although the Constitutional Court
declared the provisions of section 217(1)(b)(iii) to be
unconstitutional because it contained
the reverse onus, it warned of
the following:
"[41] It is important, I
believe, to emphasise what this judgment does not decide. It does not
decide that all statutory provisions
which creates presumptions in
criminal cases are invalid.
This
Court recognises the pressing social need for the effective
prosecution of crime. and that in some cases the prosecution may
require reasonable presumptions to assist it in this task.
Presumptions are of different types.
Some
are no more than
evidential presumptions, which give certain prosecution evidence the
status of prima facie proof, requiring the
accused to do no more than
produce credible evidence which casts doubt on the prima facie proof.
See
for
example the presumptions in
section 212
of the
Criminal Procedure
Act. This
judgment does not relate to such presumptions. Nor does it
seek to invalidate every legal presumption reversing the onus of
proof.
Some
may
be justifiable as being rational in themselves, requiring an accused
person to prove only facts to which he or she has easy
access, and
which it would be unreasonable to expect the prosecution to disprove.
The provisions in section 237 of the Act (evidence
on charge of
bigamy) may be of this type. Or there may be presumptions which are
necessary if certain offences are to be effectively
prosecuted, and
the
State
is
able to show that for good reason it cannot be expected to produce
the evidence itself ..."
(own
emphasis)
[32]
This approach was also endorsed in
S
v Manamela and Another (Director-General of Justice Intervening)
("Manamela")
[22]
where the Constitutional Court
reiterated the following:
"32.1
that the constitutionality of reverse onus provisions raise problems
that do
not lend themselves to formulaic answers
[23]
, and therefore, the mere classification of a provision as one
providing for a reverse onus does not automatically result in a
conclusion of unconstitutionality;
32.2
that if a fundamental right is indeed
infringed or threatened by a reverse onus provision, the next
question is whether that provision
can be saved as a permissible
limitation - that question has to be answered before it can be
conclusively held that the provision
is indeed unconstitutional and
invalid;
[24]
32.3
that it is clear from the wording of
section 36(1) of the Constitution that no right enshrined in Chapter
2 thereof is absolute,
and the Constitutional Court has been at pains
to articulate that there are circumstances in which such measures may
be justifiable;
[25]
and
32.4
that some of those circumstances or
considerations include (1) the effective prosecution of crime as a
societal objective of great
significance;
[26]
(2) where the risk and consequences of erroneous conviction, produced
by a statutory presumption against the accused, are outweighed
by the
risk and consequences of guilty persons escaping conviction simply
because of categorical adherence to an impervious presumption
of
innocence (in other words, whether the degree of risk of erroneous
conviction is considered to be acceptable in an open and
democratic
society, bearing in mind all the circumstances);
[27]
and the broader context of the regulatory offences as opposed to pure
criminal offences.
[28]
[33]
There is thus a specific analytical
framework to be followed when determining the constitutionality of a
statutory provision. The
first question is whether the statutory
provisions indeed introduce a reverse onus for the purpose of
criminal prosecutions. If
so, the second question is whether this
reverse onus infringes upon or threatens the fundamental fair rights
of the accused person.
If so, the last question is whether such
reverse onus can be justified under section 36 of the Constitution,
the general limitation
clause.
[29]
[34]
Section 35(3) of the Constitution
affords every accused person the right to a fair trial, the right to
be presumed innocent, the
right to remain silent, and the right not
to testify during proceedings.
[35]
The presumption of innocence requires
the prosecution to prove all the elements of an alleged offence, and
it must do so beyond
a reasonable doubt. However, such rights may be
limited in certain circumstances, provided it is justified.
[36]
Reverse onus provisions are considered
to be constitutionally valid if it is justified in terms of section
36 of the Constitution,
which tests whether it would be reasonable
and justifiable in an open and democratic society, based on human
dignity, quality and
freedom.
[37]
As aforementioned, the provisions of
section 110(1)(c) of the
Gauteng
Ordinance,
section 84(1)(c) of the
North-West Ordinance,
section
39 and section 57(1) and 57(2) of the
KZN
Ordinance
contain a classical
formula of a reverse onus provision. It is therefore clear that the
applicants ' fundamental rights are indeed
infringed and/or
threatened by these reverse onus provisions.
Justification of the Reverse Onus
Provisions
[38]
The next question is therefore whether
these provisions can be saved as a permissible limitation.
[39]
Counsel for the NDPP submitted that the
Government has an international and domestic obligation to conserve
its biodiversity and
to protect threatened and endangered species,
which includes the rhinoceros. Section 24 of the Constitution
stipulates:
"Environment
Everyone has
a
right
-
(a)
to an environment that is
not harmful to their health or wellbeing;
(b)
to have the environment
protected, for the benefit of present and future generations, through
reasonable legislative and other measures
that
-
(i)
prevent pollution and
ecological degradation;
(ii)
promote conservation; and
(iii)
secure ecologically
sustainable development and use of natural resources while promoting
justifiable economic and social development,"
[40]
In order to give effect to these
constitutional obligations in terms of section 24 of the
Constitution, NEMBA was promulgated:
40.1
Section
57 of NEMBA specifically prohibits any person from carrying out a
restricted activity, unless such person has the permit
to do so;
40.2
NEMBA
defines activities which are considered to be a "restricted
activity". It includes the hunting, catching and capturing
of
any endangered species, exporting, having in possession or conveying
or translocating any of these species as well as selling
or buying
same.
40.3
the
rhinoceros is undoubtedly a protected species and hunting, exporting
or trading in rhinoceros falls under the definition of
a restricted
activity.
[41]
Prior to the promulgation of NEMBA, the
Provincial Ordinances
[30]
were promulgated as legislative measures through which the respective
provinces were mandated to promote conservation and secure
ecologically sustainable development as well as the use of natural
resources , thus promoting justifiable economic and social
development. These ordinances were promulgated by virtue of the
South
African Act of 1909,
and each
province was responsible for drafting its own nature conservation
ordinances. The reverse onus provisions were necessitated
to serve as
a deterrent factor in order for the Government to achieve its
objective. The NDPP contends that these Provincial Ordinances
remain
competent provincial legislation which is concurrent with national
legislation (NEMBA).
Gauteng Ordinance
[42]
The provisions of section 110(1)(c) of
the
Gauteng Ordinance
were
enforced in the following charges against the first applicant:
Charge
50: possession of two rhinoceros horns;
Charge
51: sale of two rhinoceros horns;
Charge
227: receipt of two rhinoceros horns;
Charge
228: possession of two rhinoceros horns;
Charge
229: transport of two rhinoceros horns.
[43]
The factual circumstances pertaining to charges 50 and 51 were that,
on 9 to 10 June 2009, on
a premises in the Wonderboom District,
Pretoria the first applicant and others were found to be in
possession of rhinoceros horns
and the subsequent sale of such horns.
In respect of charges 227, 228 and 229, the first applicant and
another accused in Silver
Lakes, Pretoria, were found to have
received two rhinoceros horns, been in possession thereof and
transported such horns.
[44]
The NDPP contends that the procedure at
the trial stage in respect of section 110(1)(c) is that the
prosecution is required to prove
that the rhinoceros horns were in
the vehicle and that the accused was associated with such a vehicle
beyond the reasonable doubt.
The accused has an opportunity to rebut
the presumption by presenting a reasonable explanation of his defense
on a balance of probabilities.
Moreover, the failure of an accused to
testify in any way does not cast a lesser burden on the prosecution
to prove guilt beyond
a reasonable doubt.
North-West Ordinance
[45]
The first applicant was charged in terms
of the
North-West Ordinance
in
charge 69. This charge relates to an incident during August/September
2009, in Zeerust, where the accused were charged with the
transportation of a rhinoceros cow without the necessary permit.
Although the first applicant alleges that he was cleared in terms
of
section 84(1)(c), it must be emphasized that no reverse onus
provision was applied in respect of the charge.
KwaZulu-Natal Ordinance
[46]
The second applicant was charged in
terms of the
KZN Ordinance
in
charges 71 and 113 and only relied on section 39(1) of the Ordinance.
Although the second applicant challenges section 57 of
the KZN
Ordinance, it was not referred to in the charges at all.
[47]
Counsel for the NDPP submitted that, in
terms of section 39(1) of the
KZN
Ordinance,
the prosecution has to
firstly prove the offences beyond a reasonable doubt. The second
applicant would then only be required to
furnish a reasonable
explanation on a balance of probabilities. The second applicant may
elect to rebut his case, and if he elects
not to, the prosecution is
still burdened with having to prove its case beyond reasonable doubt.
[48]
Cameron J (as he then was), in
S
v Meaker
[31]
,
summarised the considerations that
courts have relied on in respect of challenges on reverse onus
provisions, namely:
48.1
Was it in practice impossible or unduly
burdensome for the State to discharge the onus of proving all the
elements pertaining to
the offence beyond reasonable doubt?
48.2
Was there a logical connection between
the fact proved and the fact presumed and was the presumed fact
something which was more
likely than not to arise from the basic
facts proved?
48.3
Did the application of the common law
rule relating to the State's onus cause substantial harm to the
administration of justice?
48.4
Generally was the presumption in its
terms cast to serve only the social need it purported to address or
was it disproportionate
in its impact?
48.5
Could the State adequately achieve its
legitimate ends by means which would not be inconsistent with the
Constitution in general
and the presumption of innocence in
particular?
[49]
Our authorities appreciate that
limitation of rights are justified in certain instances. In S
v
Coetzee and Others,
[32]
the following was expressed by Kentridge AJ:
"I do not however, think
it right to test the constitutionality of
a
criminal statute
by positing an unrealistic example of
a
prosecution that
would undoubtedly constitute an abuse of the process of the Court.
Any criminal offence, even one with no legal
burden of proof on the
accused, might be the subject of
a
vexatious
prosecution. I do not think that respect for the Constitution and for
a
culture
of individual human right is furthered by striking down legislation
thought by Parliament to be necessary for the public
welfare, on the
basis of
a
far-fetched
possibility that it will be abused by the prosecuting authorities."
[50]
It is common knowledge that in the last
few decades, rhino poaching has been rife and has become a problem
both nationally and internationally.
The conservation of rhinos
remains an uphill challenge. Each year, the number of rhinos poached
increases. There has also been
an increased demand for rhinoceros
horns, and organized crime syndicates have become involved in the
ruthless international trade
and export of rhinoceros horns.
[51]
Reverse onus provisions are generally
only introduced when every other measure previously in place was not
able to achieve the objective
and are generally rationally
proportionate, where competing interests are outweighed against each
other.
[52]
I agree with the respondents'
submissions that the reverse onus provisions contained in the
Provincial Ordinances are justified
in light of the serious concerns
regarding the conservation of our wildlife, and in this case, the
rhinoceros. The implementation
of reverse onus provisions would have
the effect of imposing deterrent measures and would enable Government
to act in the public
interest both domestically and internationally.
[53]
Although the presumption of innocence is sacrosanct, the right to a
fair trial is not absolute. A balance
should be struck between an
accused's right to a fair trial and the interest of the public, in
effectively combatting and prosecuting
same.
[33]
I have considered the gravity of the harm resulting from rhino
poaching and the frequency of the occurrences of rhino poaching,
the
difficulty of the prosecution in making proof of fact, as well as the
relative ease with which the applicants may disprove
the facts. I am
satisfied that the reverse onus provisions in the Provincial
Ordinances in the context of environmental governance
are
justifiable.
[54] I
therefore conclude that the reverse onus provisions are justified by
virtue of section 36 of the
Constitution, more particularly, that
these provisions are reasonable and proportionate, as no lesser
intrusive means exists to
achieve the objective and the manner in
which the trial is to be conducted.
Charges do not constitute an
offence
[55] The
applicants, in the alternative to the challenge of the
constitutionality of various provisions
of Provincial Ordinances,
seek an order declaring that certain charges preferred against
them
[34]
do not constitute offences in terms of section 85 of the
CPA.
Section 85
provides:
"85. Objection to
charge
(1)
An accused may, before pleading
to the charge under section 106, object to the charge on the ground
-
(a)
that the charge does not comply
with the provisions of this Act relating to the essentials of
a
charge;
(b)
that the charge does not set out
an essential element of the relevant offence;
(c)
that the charge does not disclose
an offence;
(d)
that the charge does not contain
sufficient particulars of any matter alleged in the charge: Provided
that such an objection may
not be raised to
a
charge when he is required in terms
of section 119 or 122A to plead thereto in the magistrate's court; or
(e)
that the accused
is
not correctly named or described in
the charge: Provided that the accused shall give reasonable notice to
the prosecution of his
intention to object to the charge and shall
state the ground upon which he bases his objection: Provided further
that the requirement
of such notice may be waived by the
attorney-general or the prosecutor, as the
case
may be, and the court may, on good
cause shown, dispense with such notice or adjourn the trial to enable
such notice to be given.
(2)
(a)
If the court decides that an objection under subsection (1)
is
well- founded, the court shall make
such order relating to the amendment of the charge or the delivery of
particulars as it may
deem fit.
(b) Where the prosecution
fails to comply with an order under paragraph (a), the court may
quash the charge."
[56]
One of the complaints raised by the
applicants in the founding affidavits is that Ordinance 19 of 1974 is
not applicable or in existence
in the North-West Province, and
therefore, the charge based on this Ordinance should be quashed on
the basis that no offence was
committed.
[57]
There can be no doubt that section 85 of
the
CPA
deals
with and regulates the objection procedure before a criminal court as
part and parcel of criminal proceedings. I find it difficult
to
understand why the applicants have elected to challenge charges
preferred against them in this forum. Should the applicants
wish to
object to the charges, the correct procedure would be to proceed in
terms of section 85 of the
CPA
before
a criminal court. There is no basis in the founding affidavit to
justify a declaratory order in this regard.
Costs
[58]
Counsel for the Minister submitted that
the applicants should be ordered to pay the cost of the State, as
there was no need for
this application. It was argued that this
application was, in more than one respect, an abuse of the Court
process, and the motive
was clearly self-interest.
[59]
In
Biowatch
Trust v Registrar Genetic Resources and Others,
[35]
the Constitutional Court reiterated the principle laid down in
Affordable Medicines Trust and Others
v Minister of Health and Another:
[36]
"[i] In litigation between
the government and
a
private party
seeking to assert
a
constitutional
right,
Affordable
Medicines
established
the principle that ordinarily, if the government loses, it should pay
the costs of the other side, and if the government
wins, each party
should bear its own costs.
"
[37]
[60]
The applicants have lost in their constitutional challenge of the
reverse onus provisions in
the Provincial Ordinances. According to
the
Affordable Medicines
and
Biowatch
judgments, the
parties should therefore bear their own costs. It must be noted,
however, that this Court marks its displeasure with
the route taken
by the applicants.
[61]
I therefore make the following order:
1.
The application is dismissed.
2.
The parties are to bear their own
costs.
D S MOLEFE
JUDGE OF THE HIGH COURT
APPEARANCES
For
the First Applicant:
Adv
C Joubert
Instructed
by:
Legal
Aid South Africa
For
the Second Applicant:
Adv
D J A Botha
Instructed
by:
Uys
& Cetzee Attorneys
For
the First Respondent:
Adv
H Kooverjie SC
Adv
M Rantho
Instructed
by:
State
Attorney, Pretoria
For
the Intervener/Minister of Environmental Affairs:
Adv
M M
Oosthuizen
SC
Adv P Loselo
Instructed
by:
State
Attorney, Pretoria
[1]
Charges relating to the (i) transport; (ii) sale; (iii) purchase;
(iv) export; (v) receipt and (vi) acquiring of rhinoceros horns.
[2]
"34 Access to courts
Everyone
has the right to have any dispute that can be resolved by the
application of law decided in
a
fair public hearing before
a
court..."
[3]
Hereinafter referred to as the "Minister" (and now the
Minister responsible for environmental affairs and/or national
environmental management).
[4]
[2016] 1 All SA 565
(GP). Seep 69-108 (annexure "JW4").
[5]
Regulation 41A of the Gauteng Nature Conservation Regulations
(published under Administrator's Notice 2030, 14 December 1983)
provides as follows:
"(1)
No person shall be in possession of an elephant tusk or
a
rhinoceros horn unless he is the holder of
a
permit
contemplated in subregulation (7)".
This is a
legislative prescript which establishes a prohibition. Regulation
41A(8) thereof makes a contravention of, or failure
to comply with,
that prohibition an offence, punishable upon conviction with a fine
not exceeding R50 000 or to imprisonment
for a period not exceeding
5 years or to both such fine and such imprisonment.
[6]
Section 32(1) of the Gauteng Ordinance provides:
"(1)
Subject to the provisions of this Ordinance, no person shall sell
game, unless he or she is the holder of
a
permit which
authorises him or her to do so: Provided that
-
(a)
The owner of land may sell the meat, excluding
bi/to ng, or the carcass of game which he or she has hunted in terms
of this Ordinance
on land of which he or she is the owner or cause
it to be sold at
a
public sale;
(b)
A butcher who is the holder of
a
license
issued in terms of this Ordinance may sell the meat of
a
carcass
sold to him or her in terms of paragraph (a)."
[7]
Section 47A(1)(a) of the North-West Ordinance provides:
"47A
Protection of and penalties for offences with regard to
rhinoceroses, etc
(1)
Notwithstanding anything to the contrary
contained in this Ordinance, no person shall, without
a
permit
authorising him to do so
-
(a)
hunt, capture, possess, import into,
export from or transport through the Province, buy, sell, receive as
a
donation or donate any rhinoceros, or
(b)
possess, import into, export from or
transport through the Province, buy, sell, receive as
a
donation
or donate the carcass of any rhinoceros.'
[8]
Section 41(1) of the Limpopo Environmental Management Act provides:
"
41 Prohibited Acts regarding wild and alien animals
(1)
No person
may
without 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 Schedule
7
or 8.
[9]
Section 49(2) of the Kwa-Zulu Natal Nature Conservation Ordinance
provides:
"
49 Sale and purchase of game
(1)
No person shall purchase game other than such
game as may be sold in terms."
[10]
The unlawful hunting of specially protected game.
[11]
The unlawful selling of game.
[12]
The unlawful importing of life wild animals.
[13]
Section 37(1)(c) of the Gauteng Ordinance provides:
"
37 Receipt, possession, acquisition or handling of dead game
(1)
Any person who-
(c)
In any manner acquired or receives
into his or her possession or handles dead game without having
reasonable cause, proof of which
shall be on him or her, for
believing at the time of such acquisition, receipt or handling such
game was hunted or acquired lawfully,
shall be guilty of an
offence."
[14]
Section 51(2) of the Kwa-Zulu Natal Nature Conservation Ordinance
provides:
"51
Exportation of game
(1)
No person shall export game from the
Province to any place in any other Province of the Republic of South
Africa, without a permit
issued to him by the board in terms of any
regulation made in that behalf."
[15]
[1996] ZACC 21
;
1997 (2) SA 887
(CC) para 14.
[16]
2018 (8) BCLR 972
(SCA) at paras 157 and 158.
[17]
This is a reference to
Savoi and Others v Director of Public
Prosecutions and Another
2014 (5) SA 317 (CC).
[18]
2005 (1) SACR 556
(T) at paras 30, 35, 37, and 43.
[19]
Savoi
supra.
[20]
S v Beguiot supra at para 6.
[21]
[1995] ZACC 1
;
1995 (4) BCLR 401
(CC) at para 41.
[22]
2000 (5) BCLR 491 (CC).
[23]
Manamela
supra at para [1].
[24]
Manamela
supra at para 26.
[25]
Manamela
supra at para 27.
[26]
Manamela
supra at para 27.
[27]
Manamela
supra at para 29.
[28]
Section 36 of the Constitution provides:
'36.
Limitation of Rights
(1)
The rights in the bill of Rights may be limited
only in terms of law of general application to the extent that the
limitation
is reasonable and justifiable in an open and democratic
society based on human dignity, equality and freedom; taking into
account
all relevant factors including-
(a)
the nature of the right;
(b)
the importance of the purpose of the
limitation;
(c)
the nature and extent of the limitation;
(d)
the relation between the limitation and its
purpose;
(e)
less restrictive means to achieve the purpose;
(2)
Except as provided in subsection (1) or in any
other provision of the Constitution, no law may limit any right
entrenched in the
Bill of Rights."
[29]
[30]
Collectively, these are the Gauteng Ordinance, the North-West
Ordinance and the KZN Ordinance.
[31]
1998 (2) SACR 73
(W) at 87-88.
[32]
[1997] ZACC 2
;
1997 (1) SACR 379
(CC) at para 103.
[33]
Prosecutor General of the Republic of Namibia v Joao Canos Vidal
Gomes and Others,
Case No SA62/2013, dated 19 March 2015.
[34]
Notice of Motion, page 4-8, prayer 3.
[35]
2009 (6) SA 232 (CC).
[36]
2006 (3) SA 247 (CC).
[37]
Biowatch
at para 22.