THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 923/2023
In the matter between:
MFANA IGNITIUS KUBAI APPELLANT
and
THE STATE RESPONDENT
Neutral citation: Mfana Ignitius Kubai v The State (923/2023) [2024] ZASCA 123
(30 August 2024)
Coram: MOKGOHLOA, SMITH and UNTERHALTER JJA and MJALI and
DIPPENAAR AJJA
Heard: 16 August 2024
Delivered: 30 August 2024
Summary: Criminal law – sentence – rhino poaching – maximum sentence –
s 117(1)(a) of the Limpopo Environment Management Act 7 of 2003 – accounting
for time spent in custody.
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ORDER
On appeal from: Limpopo Division of the High Court, Thohoyandou (Phatudi and
Tshidada JJ sitting as court of appeal):
1 The appeal is upheld.
2 The order of the high court is set aside and substituted with the following:
‘The sentence imposed by the regional court on the appellant is set aside and
substituted with the following:
(i) The accu sed, Mfana Ign itius Kubai , is sentenced to a term of
imprisonment of 9 years;
(ii) The carcass of the rhinoceros is forfeited to the Environmental
Management Authority in terms of s 118(1)(a) of the Limpopo Environmental
Management Act 7 of 2003;
(iii) The fire arm and knife used in connection with the unlawful hunting
are forfeited to the Environmental Management Authority.’
JUDGMENT
Unterhalter JA (Mokgohloa and Smith JJA and Mjali and Dippenaar AJJA
concurring):
Introduction
[1] The appellant, Mr Kubai, together with two other accused, were arraigned in
the Regional Court held at Mak hado (the regional court) on various charges,
including the illegal hunting of rhino. He was convicted on the charge of illegal
hunting in contravention of s 31(1)(a) of the Limpopo Environmental Management
Act 7 of 2003 (LEMA), and sentenced to 11 years of imprisonment by the regional
court. Mr Kubai was granted leave to appeal to the Limpopo Division of the High
Court, Thohoyandou (the high court) in respect of the sen tence imposed. The high
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court gave notice to Mr Kubai to show cause why it should not, on appeal, increase
the sentence imposed by the regional court. Having heard the appeal, the high court
did just that, and imposed , upon Mr Kubai, a sentence of 15 years ’ imprisonment.
By way of special leave to appeal , Mr Kubai appeals the sentence imposed by the
high court.
[2] The high court considered itself to be bound to interfere with the sentence
imposed by the regional court. The high court found that the regional court had
sentenced Mr Kubai in terms of s 276(1)(b) of the Crim inal Procedure Act 51 of
1977 (the CPA), rather than under the penalty provision of s 117(1)(a) of LEMA.
This, the high court reasoned, was an error that required correction , and the
consideration afresh of an appropriate sentence. It thought the sentence of 11 years
imprisonment to be ‘shockingly inappropriate’. The high court found that Mr Kubai
had been involved in rhino poaching cases in 2008; that he had found ‘his niche in
rhino poaching’; that rhinoceros are specially protected wild animals under LEMA;
that the statistics indicated that Limpopo had the highest incidence of rhino
poaching; and that the protection and preservation of the environment required that
the illegal poaching of rhino should exact serious punishment. Whether or not Mr
Kubai was a first offender, his offence required the imposition of the maximum
period of imprisonment permitted under LEMA, and thus the high court set aside the
sentence imposed by the regional court, and sentenced Mr Kubai to ‘15 years of
direct imprisonment as envisaged in terms of s 117 of LEMA’.
[3] Counsel for Mr Kubai submitted that there was no legal error of the kind relied
upon by the high court to justify its intervention. Nor was th e imposition of the
maximum period of imprisonment by the high court warranted. Mr Kubai was a first
offender. In 2008, he had assisted the police to arrest a foreign national suspected of
offender. In 2008, he had assisted the police to arrest a foreign national suspected of
complicity in rhino poaching. That should not have been held agains t Mr Kubai,
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much less permit of his being considered an experienced rhino poacher.
Furthermore, the high court was influenced by misleading evidence as to the
incidence of rhino poaching and the financial losses caused thereby. Mr Kubai was
sentenced to the maximum custodial sentence in terms of LEMA, as if a repeat
offender, when he was not. He had contributed to society by running a business that
employed people. The high court had also failed to take account of the time that Mr
Kubai had been held in c ustody from the date of his arrest until the date he was
admitted to bail (some 2 years and 3 months). It was submitted that , upon a proper
consideration of all of these matters, and acknowledging that rhino poaching is an
offence of considerable seriousness, a prison sentence of 8 years was the appropriate
sentence.
[4] Counsel for the State resisted this conclusion. He contended that there was no
basis for us to interfere with the sentence imposed by the high court. LEMA required
that sentences should deter the on-going dangers of rhino poaching that placed the
species at risk. LEMA provided for a sentence of 15 years ’ imprisonment for the
most serious of cases, and this was such a case.
[5] I commence with the basis upon which the high court decided it must interfere
with the sentence imposed by the regional court. The high court concluded that the
regional court had sentenced Mr Kubai in terms of s 276(1)(b) of the CPA, and not
in terms of s 117(1)(a) of LEMA. That conclusion cannot be sustained. The reasoned
judgment of the regional court references s 117(1)(a) of LEMA, and determined the
appropriate sentence in contemplation of the maximum term of imprisonment
stipulated in this provision. While the sentence imposed on Mr Kubai is framed in
terms of s 276(1)(b) of the CPA, this provision contains the proviso that it is subject
to any other law. LEMA is such a law, and the regional court plainly had this
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legislation in mind when it sentenced Mr Kubai. I cannot fault the regional court on
this score, and the high court was in error to do so.
[6] A fair reading of the high court’s judgment indicates, however, that quite apart
from the formulation of the regional court’s order, the high court set aside the
sentence of the regional court on the basis that it was ‘shockingly inappropriate’.
The appeal before us engages the order made by the high court, and hence the
question for us is whether we should interfere with that order. I turn to this question.
[7] There are three features of the high court judgment that warrant scrutiny. First,
the high court was much influenced by testimony given at Mr Kubai’s bail
application that he was involved in the commission of poaching offences (beyond
the offense with which he was charged and convicted in the regional court) and the
assistance rendered by him to the police in 2008 to arrest a foreign national suspected
of selling rhino horns. In essence, the high court considered Mr Kubai to have
fashioned a career as a rhino poacher, and hence he could not de facto be considered
a first offender.
[8] A court sentencing an offender should exercise care in reaching conclusions
of this kind. The precise role of Mr Kubai in rendering assistance to the police in
2008 is far from clear. Nor does it support the conclusion that Mr Kubai is a serial
offender. The high court misdirected itself on this score.
[9] Second, the high court reasoned that , whether or not Mr Kubai was a first
offender, the seriousness of his crime warranted the imposition of the maximum
punishment permitted under LEMA. It was common ground before us that rhino
poaching is a serious crime. While counsel for Mr Kubai levelled criticisms against
the evidence led as to statistics supporting the incidence of poaching in Limpopo and
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the value of rhino horn, he agreed that any rhino poaching of this much endangered
species is a crime of considerable gravity.
[10] It appears from the reasoning of the high court that every rhino that is poached
that results in a conviction justifies the imposition of the maximum period of
imprisonment permitted by LEMA. But that is not what LEMA provides. Section
117(1)(a) stipulates for a maximum period of imprisonment. A sentencing court
must give consideration to the degree of seriousness that attaches to the particular
crime. If the poaching of a rhino warrants the sentence of 15 years imprisonment,
what then of an accused convicted of multiple counts of rhino poaching? Is such a
case not more serious? And if it is, how then is the same term of imprisonment
appropriate? It may be that the time has come that every act of rhino poaching should
attract a minimum sentence of 15 years, but that is not what the legislature has
determined in s 117(1) (a) of LEMA. The high court paid no regard to degrees of
seriousness, but was rather determined to impose the maximum penalty, and give no
weight to the fact that Mr Kubai was a first offender who ran his own business. The
well-known principles of application to the imposition of an appropriate punishment
are not to be disregarded simply because rhino poaching is a scourge that has placed
the species in peril. This too constitutes a misdirection that require our intervention.
[11] Third, the high court failed to weigh in the balance the time that Mr Kubai had
been in custody awaiting the final outcome of the proceedings. He was admitted to
bail pending the outcome of his appeal from the regional court to the high court. But
he had been in custody, as I understood counsel for Mr Kubai, for a period of 2 years
and 3 months. While there is no rigid metric by recourse to which time in custody is
to be reckoned in the imposition of a sentence, it cannot count for nothing. Yet that
to be reckoned in the imposition of a sentence, it cannot count for nothing. Yet that
is what the high court, in ef fect, did. Mr Kubai was sentenced to 15 years
imprisonment by the high court, with no allowance for the time he had spent in
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custody. That entails that he was given an effective sentence of 17 years and 3
months of imprisonment. A period of time in excess of the maximum allowed by
LEMA. That too is a misdirection.
[12] For these reasons, the sentence imposed by the high court cannot be allowed
to stand. We must determine what sentence should have been imposed by the high
court.
[13] I consider that, save in one respect, the regional court provided a carefully
balanced assessment of an appropriate punishment. Mr Kubai is a first offender. The
evidence of his other involvements in poaching, and in particular the events of 2008,
are too speculative to permit of recognition. However, the poaching of rhino is an
offence of considerable gravity. The risk of extinction of this species is well-known
and, those who would seek to profit from the poaching of rhino further contribute to
this risk. They must know that poaching rhino, even as in this case , the killing of a
single rhino, will warrant a lengthy custodial sentence.
[14] The maximum sentence that LEMA permits is 15 years imprisonment. That
sentence is not appropriate in this case for three principal reasons. First, Mr Kubai
is a first offender. There must be some leeway in the computation of a custodial
sentence for an offender who is a repeat offe nder or who is convicted of multiple
counts of rhino poaching to be given the maximum sentence allowed under LEMA.
Second, and in consequence, though Mr Kubai’s crime is a grave wrong, there are
yet worse crimes of rhino poaching that must be taken into co nsideration when
deciding upon a custodial sentence that has a statutory maximum. Third, and in this
respect the regional court also erred, there must be recognition of time spent in
custody in arriving at an appropriate custodial sentence. In this case, that period is 2
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years and 3 months. A failure to do so may result in an unjust sentence that
approaches or exceeds the maximum term of imprisonment.
[15] In the result, the appropriate sentence that the high court should have imposed
is a term of imprison ment of 9 years, together with the forfeiture orders that were
given by the regional court.
[16] In the result the following order is made:
1 The appeal is upheld.
2 The order of the high court is set aside and substituted with the following:
‘The sentence imposed by the regional court on the appellant is set aside and
substituted with the following:
(i) The accused, Mfana Ign itius Kubai , is sentenced to a term of
imprisonment of 9 years;
(ii) The carcass of the rhinoceros is forfeited to the Environmental
Management Authority in terms of s 118(1)(a) of the Limpopo Environmental
Management Act 7 of 2003;
(iii) The fire arm and knife used in connection with the unlawful hunting
are forfeited to the Environmental Management Authority.’
__________________________
D N UNTERHALTER
JUDGE OF APPEAL
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Appearances
For the appellant: Adv P F Pistorius
Instructed by: Anita Campbell Attorneys, Tzaneen
Symington De Kok Attorneys, Bloemfontein
For the respondent: Adv N T Mulangaphuma
Instructed by: Director of Public Prosecutions, Thohoyandou
Director of Public Prosecutions, Bloemfontein