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[2015] ZAGPPHC 86
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Tlou and Others v S (A25/2015) [2015] ZAGPPHC 86 (13 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case No: A25/2015
Date: 13 February
2015
Not reportable
Not of interest to
other judges
In the matter
between:
JOB
BASI
TLOU
...............................................................................
First
Appellant
PERCY
MANENGENA
................................................................
Second
Appellant
JOHANNES
SEMATLA
.................................................................
Third
Appellant
LEBALLA
SEMATLA
..................................................................
Fourth
Appellant
MASOLO
SEMATLA
......................................................................
Fifth
Appellant
and
THE
STATE
...........................................................................................
Respondent
HEARD ON: 10
EBRUARY 2015
DELIVERED ON: 13
FEBRUARY 2015
JUDGMENT
MOHLAMONYANE AJ:
[1] This is an
appeal against the refusal by the Magistrate to grant bail to the
First, Second, Third, Fourth and Fifth Appellants,
who were accused
nos 1, 2, 3, 4 and 5 respectively in the Magistrate's Court sitting
at Louis Trichardt on the 6
th
November 2014.
[2]
The Appellants are facing eight counts,
inter
alia
,
ot contravention of section 31(1) (a) r/w sections 31 (3) & (4),
112 and 117 of the Limpopo Environmental Management
Act, no 7 of
2003-which prohibits hunting of protected wild animals. I need not
repeat the other related charges, which are clearly
set out in the
charge sheet contained on pages 28 to 34 of the paginated record of
proceedings.
[3] It is not in
dispute that these charges are, by their nature, serious. If
convicted, the Appellants face lengthy terms of imprisonment.
EVIDENCE
LED IN THE COURT
A QUO:
[4]
During July 2014 a white rhino resident in the Mapungubwe National
Park
(“the
Park”)
in
the far northern part of the Limpopo Province, was fatally shot at a
farm known as Den Staat, which lies adjacent to the Park.
As a result
of information received by the Investigating Officer, Mr Mario
Scholtz
("Scholtz"),
who
is in the employ of the South African National Parks
(“SANPARKS”)
attached
to the Environmental Crime Investigation Unit thereof, the five
Appellants were arrested during August 2014. All the five
Appellants
were kept in police custody.
APPELLANT
NO 1:
[5]
Appellant no 1 was the first to give
viva
voce
evidence
on oath. Briefly, his evidence was to the effect that he is 64 years
old, a South African citizen, who lives in Tweefontein
village in
Mpumalanga Province. He further indicated that he is an old age
pensioner, married with five (5) children and that his
wife is
employed as a teacher. He holds no passport. He makes additional
income of about R2 500.00 per month by selling clothes.
He has no
relatives outside the borders of South Africa. He has no previous
convictions. He denies commission of the alleged offences.
APPELLANT NO
2:
[6] Appellant No 2
is 29 years old, unmarried with one child which is his dependant. He
is unemployed but makes a living by transporting
people in a private
vehicle from Alldays to various destinations in and around Vivo and
Musina. He resides at Spika Park in Alldays.
He has relatives in
Zimbabwe, from where he married his deceased wife. He has previous
convictions of shoplifting in which he got
convicted in 2005. He has
another of reckless or negligent driving dated 2009. He estimates his
income to be between R4 000.00
and R5 000.00 per month. He has assets
in the form of furniture, valued at R7 000.00. He has a valid
passport.
[7] Appellant No 3
is 48 years old, married with three wives, two ot whom are from
Zimbabwe. He is self employed as a vegetable
farmer earning about R50
000.00 per month. He has a labour force of about 36 employees. He has
eleven (11) children two of whom
are Appellants nos 4 and 5. Nine of
his children are attending school. Appellants nos 4 and 5 are working
with him on the farm
in Den Staat, where the they also live. He has
relatives in Botswana and Zimbabwe. He is the holder of a valid
passport. He has
no previous convictions or charges pending against
him. He possesses three (3) motor vehicles, a tractor and three water
pumping
machines. He also owns a four-roomed house at Den Staat farm
and another eight (8) roomed house in Ga-Kibi village in Limpopo
Province.
APPELLANT NO
4:
[8] Appellant No 4
testified by means of an affidavit. Appellant No 4 is 26 years old
and a South African citizen. He is married
and has two children. He
is currently employed, at his father's (Appellant No 3) farming
operations at Den Staat farm, earning
about R2 200.00 per month. He
has a valid passport and has relatives in Zimbabwe and Botswana. He
frequently visits these two countries.
He has no previous
convictions. He owns households furniture valued at about R15 000.00.
[9] Appellant No 5
also testified by means of an affidavit. Appellant No 5 is 27 years
old, married with two children. He also works
at Den Staat farm
earning about R2 200.00 per month. He is the sole breadwinner and
responsible for the maintenance of his unemployed
wife and children.
He has a valid passport and has relatives in both Botswana and
Zimbabwe which countries he frequently visits.
He owns household
furniture to the value of about RIO 000.00. He has no previous
convictions or criminal case pending against him.
STATE
EVIDENCE:
[10]
On behalf of the State Scholtz testified. According to Scholtz, on
the 22
nd
July 2014 he received information from a ranger at the Park that a
satellite collar of a rhino was found next to the road. On the
23
rd
July 2014 the ranger informed him further that a carcass of a white
rhino was found on the farm Den Staat. Apparently the rhino
had
earlier that year moved out of the Park to Den Staat. It was captured
and brought back to the Park. Scholtz visited the crime
scene in Den
Staat farm. He observed that two shots were fired under the left ear
of the rhino. He then conducted a post mortem
on the animal where he
found two projectiles in the brain cavity of the animal. Spoor prints
became impossible to be uplifted by
the relevant experts as three
“
walking
spoors
”
were
imprinted on the rhino spoor.
[11]
A rhino photo was sent by Scholtz's informer on a mobile phone. He
conducted investigations. With assistance from the South
African
Police Service
(“SAPS”)
Crime
Intelligence Unit, the phone was traced to a person named Mr Job Basi
Tlou (Appellant No 1 in this appeal). Appellant No 1
was on the SAPS
system because he was once in June 2013 arrested with seven (7) other
accused on a charge of illegal possession
of a hunting rifle. Scholtz
then focused his attention on Appellant No 1. He found out that his
residential address was in Tweefontein
near Kwa-Mhlanga in Mpumalanga
Province. He and members of the Organized Crime Unit of the SAPS then
conducted a section 252A of
the Criminal Procedure Act, no 51 of 1977
("the CPA")
authorised
trap. The undercover operation agents offered Appellant No 1 a rhino
horn for sale. Appellant Nol offered one of the
agents between R70
000.00 and R80 000.00 for one kilogram of rhino horns. The undercover
operation was conducted on the 12
th
August 2014. Appellant No 1 was subsequently arrested. His house at
Tweefontein was searched and an illegal hunting rifle was found
hidden in the ceiling of his garage. Ammunition and a
"scale"
were
also confiscated. Appellant No 1 was charged with illegal possession
of a hunting rifle. On the 13
th
August 2014 he appeared in the Kwa-Mhlanga Magistrate's Court where
he was released on bail of R1 000.00.
[12]
Upon questioning, Appellant No 1 revealed that he had received two
rhino horns the previous week from Alldays. He also intimated
to
Scholtz that he had received the hunting rifle found in his house
from one Vusi who lives in Mookgophong in Limpopo Province.
Appellant
No 1 was willing to point out the said Vusi. In company of Scholtz
and his colleagues, Appellant No 1 took them to Mookgophong
town. It
later emerged that Vusi knew nothing about the firearm. In informal
discussions, Appellant No 1 indicated to Scholtz that
he was
acquainted to the rhino horn business as he previously assisted a
certain white man from Port Elizabeth to smuggle rhino
horn on
various occasions from Namibia to South Africa. Appellant No 1 also
made mention of the fact that he had received rhino
horns (Exhibit C)
in the Court
a
quo,
from
one Percy from Alldays, on the 19
th
July 2014. It has to be noted that the latter date was the date on
which the rhino was fatally injured. Percy is Appellant No 2.
Percy
wanted Appellant No 1 to sell the rhino horns to Appellant No 1 's
contact, one Albert, from Mozambique.
[13]
Albert came after he was contacted by Appellant No 1. He requested
Appellant No 1 to travel to Malelane with the two rhino
horns.
Appellant No 1 duly obliged and he handed the two rhino horns to
Albert in Malelane. Albert thereafter returned to Mozambique
with the
rhino horns. Percy and a friend of his, one Rusta, were in the
meanwhile waiting for Appellant No 1 at his home in Tweefontein.
He
returned after a week or so to Malelane having money. He gave
Appellant No 1 R400 000.00 for the two rhino horns. Percy and
his
friend had, in the meantime, returned to Limpopo Province. Appellant
No 1 phoned Percy after he had received the money. Percy
and Rusta
returned to Tweefontein at Appellant No 1 's house to fetch the
money. Appellant No 1 then handed R400 000.00 to Percy.
Percy in turn
gave Appellant No 1 R50 000.00 for his “
trouble"
of
selling the rhino horns.
[14] Armed with this
information, Scholtz and his team arrested Appellant No 1. He was
willing to assist Scholtz and his team to
point out Percy. Appellant
No 1 took Scholtz and his team to Alldays where Percy was pointed out
by Appellant No 1. In an informal
manner, Appellant No 1 volunteered
information to Scholtz that in 2013 he had obtained a .375 hunting
rifle from Percy (Appellant
No 2). It was agreed that he would pay
Appellant No 2 R20 000.00 for the rifle which Appellant No 1 never
did. Appellant No 1 had
then requested that he bring back the hunting
rifle to him which Appellant No 1 did. Appellant No 1 travelled with
the .375 hunting
rifle when he attended court with six others in 2013
at Louis Trichardt. The case was withdrawn against him. That was the
day he
handed back the rifle to Appellant No 2 in Vivo in the Limpopo
Province. Appellant No 1 got the rifle again from Appellant No 2,
which he ultimately gave to a person who was a member of a rhino
poaching group in Rustenburg.
[15]
According to Mr Chauke
(“Chauke")
one
of Scholtz's team members, Appellant No 2 had informed him that on
the 19
th
July 2014 he (Appellant No 2) was contacted by someone called Forget
Sematla (Appellant No 4 herein) who told Appellant No 2 that
his
(Appellant No 4) father (Appellant No 3) had shot a rhino on the farm
Den Staat with his 30.06 caliber rifle. Appellant No
4 then requested
Appellant No 2 (Percy) to drive to Den Staat to fetch the rhino
horns. Appellant No 2 did so. Upon arrival at
the farm, he found Joe
Sematla (Appellant No 3), Appellant No 4 and Alfa Sematla (Appellant
No 5).
[16] Furthermore,
Appellant No 3 is said to have received the sum of R200 000.00 from
Appellant No 2 for the horns. Appellant No
2 retained R100 000.00 for
himself and gave his friend Rusta R50 000.00 for having accompanied
him to Appellant No l’s home.
Mention should also
be made that Rusta is the one who had apparently sewn off the rhino
horns from the carcass.
[17]
It would appear that Scholtz discovered that on the 19
th
July 2014, Appellant No 1 was phoned from a mobile phone whose number
was
“
078 357
2888".
That
was done during analysis of the mobile phone records. Upon arrest of
Appellant No 4, his mobile phone was confiscated by Scholtz,
who
asked him what his number was. He recited the same number from which
Appellant No 1 was phoned on the 19
th
July 2014.
PERTINENT
ISSUES THAT AROSE IN THIS APPEAL:
[18]
I had, at the outset, indicated to counsel appearing on behalf of the
Appellants that the issue of whether the Appellants were
flight risks
should no longer be a consideration and must not detain us any
further. Although in the Court
a
quo
the
learned Magistrate found that the Appellants were flight risks as it
was easy for any person to illegally cross the border into
neighbouring Zimbabwe, in this Court I deemed it appropriate to
accept that the Appellants were not flight risks because all but
Appellant No 1 had submitted their passports to the Investigating
Officer.
[19]
It was common cause that the offences with which the Appellants are
charged fall under Schedule 5 of the CPA. The onus therefore
rested
on the Appellants to have convinced the Court
a
quo
that
it is in the interests of justice that they be released on bail.
[20]
In
S v Van Wyk,
2005 (1) SACR 41
(SCA)
it
was decided by Comrie AJA (as he then was) Harms and Nugent JJA
concurring, that the function of the Court in a bail application
is
prima facie
to
determine the relative strength of the State's case and not to make a
provisional finding of guilt or innocence. In his heads
of argument,
counsel for Appellant Nos 1 and 2 referred to the Van Wyk’s
case
supra.
Counsel
for Appellant Nos 3, 4 and 5 argued that in her judgment, the learned
Magistrate did not take cognisance of the weakness
of the State's
case against Appellants Nos 3, 4 and 5. I do not agree with that
proposition because the learned Magistrate took
account of the fact
that the State’s case rested largely on circumstantial evidence
i.e. that the rhino was killed inside
the farm in which Appellants
Nos 3, 4 and 5 live.
[21] It is my
respectful view that Appellants Nos 3, 4, and 5 were connected to the
crimes largely on the information given to Scholtz's
team by
Appellant No 2. It was argued that this piece of information remains
inadmissible hearsay against Appellants Nos 3, 4 and
5. More
especially that, it was further argued, Appellant No 2, who had made
a statement to the police implicating Appellants Nos
3, 4, and 5,
denied having made the statement freely and voluntarily. Hearsay
evidence may, in certain circumstances, be admissible.
In my view,
this is one case in which the chronology of events are given by a
co-accused. Who else can give such evidence which
can be deemed
direct, in cases of animal poaching? It is known that animal
poaching, particularly, in South Africa, is carried
out by organised
groups. They usually do so nocturnally and maintain a high shutdown
of information characterised by secrecy. In
my view therefore, this
is one exceptional case where hearsay evidence should be admissible.
I say so for the reasons I set out
below.
[22]
Appellant No 2 alleged that he made the statement implicating
Appellants Nos 3, 4, and 5 under duress as he was assaulted by
Scholtz and Chauke. This allegation of assault was not challenged in
cross-examination in the Court
a
quo.
It
is not by sheer coincidence that Appellant No 4 phoned Appellant No 2
informing him that a rhino was shot by his father (Appellant
No 3).
[23] Furthermore, it
is my view that the strength or otherwise of the State case was the
main determining factor in allowing or
denying the Appellants bail.
The learned Magistrate considered the seriousness of the offences
with which the Appellants are charged
and the possible lengthy terms
of imprisonment that would face them in the event of convictions. It
was and remains uncontroverted
that Appellant No 2 and his friend
went to Appellant No l’s home to fetch the money as proceeds of
the sale of the two rhino
horns. It is also undisputed that Appellant
No 2 received R400 000.00 from Appellant No 1 which sum of money was
distributed accordingly
as described above.
[24]
It also remains an uncontroverted version of the State that a hunting
rifle was found hidden in the roof of the garage of Appellant
No l's
home. That Appellant No 1 has handed to a
“
poaching
group
”
in
Rustenburg the .375 he received from Appellant No 2 remains
uncontroverted. It was argued by counsel for Appellants Nos 1 and
2
that there were a lot of irregularities on the statement made by
Appellant No 1 and that Appellant No 2 is in no way connected
to the
crimes. He argues further that Appellant No 2 was not found in
possession of any item linking him with the offences. I disagree
as
this proposition is flawed, for the reason already given above.
[25] It has been
argued by counsel for Appellants Nos 3, 4, and 5 that on the totality
of Scholtz's evidence there is virtually
no case made out against
Appellant Nos 3, 4 and 5. He asserted that the only evidence against
them were those allegations made
by Appellant No 2. In his submission
there is nothing which is Scholtz’s evidence in admissible
which can connect the three
Appellants with the shooting and selling
of the rhino horns. The immediate question is: was it a coincidence
that Appellant No
4 should state to Appellant No 2 that the rhino was
shot by his father (Appellant No 3) with a 30.06 calibre hunting
rifle and
a rifle of the same calibre is found in Appellant No 3’s
house? Surely, with the chronology of events that unfolded one is
bound to draw an adverse inference against Appellants Nos 3 and 4. It
would seem that it is not in dispute that Appellant No 5
drove
Appellants Nos 1, 2, 3 and 4 to the scene of crime. That is the only
aspect connecting him with the crimes. Scholtz conceded
under
cross-examination that according to information Appellant No 5 did
not want to get too close to the scene of crime after
he had
transported the others to the scene. It is accordingly my view that
the State's case against Appellant No 5 is weak. The
learned
Magistrate has consequently misdirected herself in refusing to grant
bail to Appellant No 5. The learned Magistrate was
accordingly wrong
in that regard.
[26] I am
accordingly persuaded that it was in the interests of justice to have
granted bail to Appellant No 5.
[27]
In the circumstances I find that the State’s case against
Appellants Nos 1, 2, 3 and 4 is very strong. They have accordingly,
failed to convince the Court
a
quo
that
the interests of justice permitted their release as envisaged in
section 60 (11) (b) of the CPA.
[28] For the reasons
given above, I have taken into account the nature and gravity of the
charges the Appellants are facing, the
strength of the State's case
and the nature and gravity of the punishment which is likely to be
imposed should the Appellants be
convicted of the charges against
them, as envisaged in section 60 (4) r/w section 60 (6) (f) (g) and
(h) of the CPA.
[29] I am of the
view that the decision of the Magistrate to refuse to grant Appellant
No 5 bail should be set aside.
[30] In the result I
make the following order:
30.1 The appeal by
Appellants Nos 1, 2, 3 and 4 is hereby dismissed.
30.2
The decision of the Court
a
quo
to
refuse to grant Appellant No 5 (Accused No 5 a
quo)
bail
is hereby set aside.
30.3
Bail is fixed at R20 000.00 for Appellant No 5 (Accused No 5
a
quo)
on
the following conditions:
30.3.1 Accused No 5
should report once a week at Alldays Police Station, i.e. every
Thursday between 08h00 and 20h00.
30.3.2 He should not
leave the Magisterial area of Louis Trichardt in the Soutpansberg
district, without permission of the Investigating
Officer in case
number A102/2014. Such permission may be requested by telephoning the
Investigator.
30.4 In the event
the request is granted by the Investigator, such request and
permission shall be recorded in the Occurrence Book
(OB) at Alldays
Police Station by the responsible officer. Permission should not be
unreasonably upheld.
MD MOHLAMONYANE
[Acting Judge of the
High Court of SA
Gauteng Division,
Pretoria]