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[2013] ZAWCHC 184
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Goldberg v Director of Public Prosecutions: Western Cape (A446/12) [2013] ZAWCHC 184; 2014 (2) SACR 57 (WCC) (17 December 2013)
THE
HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT)
Case
No: A446/12
DATE:
17 DECEMBER 2013
In
the matter between:
MARK
JONATHAN
GOLDBERG
.....................................................................
APPELLANT
And
DIRECTOR
OF PUBLIC PROSECUTIONS:
WESTERN
CAPE
….......................................................................................
RESPONDENT
Coram: GOLIATH,
LE GRANGE & ROGERS JJ
Heard: 28
– 29 NOVEMBER 2013
Delivered: 17
December 2013
JUDGMENT
ROGERS
J:
Introduction
[1] On
29 July 2011 the appellant was convicted on five counts of offences
under the Nature and Environmental Conservation Ordinance
19 of 1974
(Cape). On 24 April 2012 he was sentenced to seven years’
imprisonment of which two were suspended on appropriate
conditions,
the counts being taken together for purposes of sentence.
[2] Pursuant
to his conviction and sentencing, the appellant noted an appeal to
this court and also launched civil proceedings in
which he sought
certain constitutional relief and applied for the setting aside of
the conviction and sentence. The criminal appeal
and the civil
application were heard together. As will appear from the judgment to
be delivered simultaneously with this one, the
review component of
the civil application fails. The present judgment deals with the
criminal appeal.
[3] In
summary, the charges against the appellant arose from his alleged
possession of items of ivory found at a curio shop (called
the Gift
Shop) situated in Three Anchor Bay Road in Sea Point, at his home at
32 Cheviot Place in Green Point, and at his mother’s
nearby
home at 28 Cheviot Place; and from his alleged possessing, or
exposing for purposes of sale, the ivory items found at the
shop and
at his home. The weight of the ivory items found at the shop was
about 1 500,276 kilograms (ie over one and a half tons);
the weight
of the ivory items found at the appellant’s home and at the
home of his mother were 20,212 kilograms and 17,95
kilograms
respectively. The items were in a variety of forms. There were carved
statuettes, bangles, bracelets, chopsticks and
various cylindrical
and rectangular items. The cylindrical items had engraved patterns on
them as did some of the rectangular items
(called hankos). The most
rudimentary form of ivory items were unadorned hankos which had been
cut into rectangular shapes and
polished.
[4] The
appellant’s evidence at the trial was that the shop belonged to
his mother, Mrs Sonja Marcus, and that the ivory items
found at the
shop and at the two residences all belonged to his mother. This
version was sufficiently established that the appellant’s
guilt
on the charges needed to be adjudicated on that basis. By way of
brief summary, it appeared from the evidence that the appellant’s
mother, Mrs Marcus, had been buying and selling worked ivory since
the 1950s. At one stage she was in partnership with her cousin
Alan
Gurwich in Johannesburg. He bought out her share of the business in
1975, and she moved to Cape Town. Part of the settlement
was a
consignment of ivory items. In 1981 Mrs Marcus opened the Gift House
curio shop. According to the appellant, she continued
to buy and sell
worked ivory. Various firms which sold ivory to her were identified
in the evidence, and the proprietor of one
of these suppliers, Mr
Giannini of Ruacana Game Industries, testified as a witness for the
defence. The accounting and tax documentation
relating to the Gift
House were in the name of Mrs Marcus. Her will was also adduced as an
exhibit. In terms of the will she bequeathed
the shop to the
appellant. The ivory items were found by the authorities on 17 August
2009. At that time Mrs Marcus was still alive.
She died about two
weeks later, on 29 August 2009. Accordingly, at the time the alleged
offences were committed by the appellant,
Mrs Marcus was the owner of
the shop and the owner of any ivory items forming part of the shop’s
stock.
[5] The
appellant started working part-time in the shop during 2001. He began
working there full-time as from 2004. He was one of
two managers
employed by his mother, the other being Mr Joey Brown. There were a
number of other employees who worked in the shop.
[6] I
have said that the ivory items were found on 17 August 2009. This was
pursuant to what I shall neutrally describe as a visit
made to the
shop on that day by two officials (Messrs Paul Gildenhuys and Carl
Brown) of the Western Cape Nature Conservation Board
(‘the
WCNCB’) accompanied by a number of police officers, including
Inspector Potgieter, Colonel Strydom and Inspector
Combrink. The
majority of the ivory items found at the shop were on display and
could be seen even before entering the premises.
The appellant, who
according to Potgieter and Gildenhuys gave the impression of being
the owner and the person in charge, was asked
by Gildenhuys whether
he had the documentation required by the Ordinance for the possession
and sale of ivory. The appellant did
not produce documentation to
Gildenhuys’ satisfaction, whereupon he was read his rights and
arrested. The ivory items at
the shop were seized and placed in
evidence bags. The appellant then accompanied Brown, Combrink and
several other police officials
to 32 and 28 Cheviot Place where the
other items of ivory were found and seized.
[7] The
appellant pleaded not guilty to all the charges. He was represented
by Mr Liddell (who also appeared for him in the appeal).
When the
first state witness, Potgieter, began to testify about the visit to
the shop, Mr Liddell raised an objection, contending
that the visit
to the shop and to the two residences constituted an unlawful search.
There was a trial within a trial, pursuant
to which the magistrate
ruled that, although the manner in which the ivory items were found
and seized violated the appellant’s
constitutional right of
privacy, it would be in the interests of justice in terms of s 35(5)
of the Constitution to admit the evidence.
The trial continued and
the appellant was in due course convicted on all counts.
The
charges and the Ordinance
[8] Counts
1 and 2 related to the ivory found at the shop. These charges were
respectively for possession of that ivory in violation
of s 42(1)(b)
of the Ordinance, and for the possession and exhibiting for sale of
that ivory in violation of s 46(c) of the Ordinance.
Counts 3 and 4
related to the ivory found at the appellant’s home. These
charges were respectively for the possession of
that ivory in
violation of s 42(1)(b), and for the possession and exhibiting for
sale of that ivory in violation of s 46(c). Count
5 related to the
ivory found at the appellant’s mother’s home. That charge
was for the possession of the ivory in violation
of s 42(1)(b) –
there was, in respect of that ivory, no further charge in terms of s
46(c).
[9] Section
42 of the Ordinance reads as follows:
‘
42(1)
Any person found in possession of any wild animal or the carcase of
any such animal shall be found guilty of an offence unless,
in the
event of –
(a)
the animal having been hunted by him or her on the land of any other
person, he or she is in possession of the written permission
contemplated by section 39, or
(b)
his or her having acquired such animal or carcase from any other
person, he or she is in possession of a written document contemplated
by section 41.
(2)
The provisions of subsection (1) shall not apply in any case where a
relative or full-time employee of any owner of land is
found in
possession of a wild animal or the carcase of any such animal which
such relative or employee has hunted on the land of
such owner with
his or her permission or which such owner has sold or donated to such
relative or employee.’
[10] Section
42(1)(b) requires possession of a written document as contemplated in
s 41. The latter section is in the following
terms:
‘
No
person shall donate or sell any wild animal or the carcase of any
such animal to any other person unless, when he or she delivers
such
animal or carcase to such other person, he or she furnishes such
other person with a written document signed by him or her
reflecting
–
(a)
the full names and address of such firstmentioned person;
(b)
the full names and address of such other person;
(c)
the number and species of wild animals or carcasses so donated or
sold;
(d)
the date on which such animal or carcase was so donated or sold, and
(e)
a statement by him or her that he or she has donated or sold such
animal or carcase to such other person.’
I
shall for convenience refer to the statement contemplated by s 41 as
a ‘statement of origin’.
[11] The
prohibition in s 42 is framed with reference to possession of any
‘wild animal’ or the ‘carcase’
of any such
animal. It is common cause that the African elephant, from which the
ivory in question derived, is a ‘wild animal’
as defined
in s 2 of the Ordinance. The word ‘carcase” is defined in
s 2 as follows:
‘
in
relation to any wild animal means the whole or any part of the meat
(whether dried, smoked, salted, cured or treated in any manner),
the
head, tooth, horns, shell, scale, tusks, bones, feathers, tail, claw,
paw, hoof, skin, hide, hair, viscera or any part whatsoever
of the
carcase, and includes the egg’.
[12] Section
46 of the Ordinance provides:
‘
No
carcase of any wild animal shall be sold by any person other than –
(a)
the owner of any land on which the animal concerned was hunted in
accordance with the provisions of this ordinance;
(b)
a market master at a public or municipal market, or
(c)
a person authorised by a permit issued under this ordinance to sell
such carcase.’
[13] The
issuing of permits in general under the Ordinance is provided for in
s 73.
[14] The
prohibition in s 46 is framed with reference to the ‘sale’
of a carcase. The word ‘sell’ is defined
in s 2 as
including
‘
hawk,
peddle, barter or exchange or offer, advertise, expose or have in
possession for the purpose of sale, hawking, peddling, bartering
or
exchanging’.
[15] In
summary, s 42 requires, for the lawful possession of the carcase of a
wild animal, that the possessor should be in possession
of a
statement of origin, regardless whether he possesses the item for
purposes of sale or not. If he possesses the item for purposes
of
sale, he additionally requires the permit contemplated in s 46. The
two offences are thus distinct, even though possession may
be a
common element of both.
[16] Section
85(a) of the Ordinance provides that any person who contravenes or
fails to comply with any provision of the Ordinance
or any regulation
made or instruction given or demand made thereunder shall be guilty
of an offence. In terms of s 86(1)(b) a contravention
of s 42(1)(b)
or s 46, where it involves an African elephant, may be punished by a
fine not exceeding R100 000 or imprisonment
for a period not
exceeding ten years or to both such fine and such imprisonment, and
to a fine not exceeding three times the commercial
value of any
African elephant or the carcase thereof in respect of which the
offence was committed.
The
issues
[17] The
appeal raises the following issues:
[a]
whether the conduct of the officials on 17 August 2009 constituted a
search;
[b]
if so, whether the search was lawful;
[c]
if the search was not lawful, whether the evidence obtained pursuant
to the search should nevertheless have been admitted as
evidence in
terms of s 35(5) of the Constitution;
[d]
whether the ivory items fall within the definition of ‘carcase’
in the Ordinance and were thus items to which s
42(1)(b) and s 46(c)
applied;
[e]
whether the appellant ‘acquired’ the ivory from another
person as contemplated in s 42(1)(b);
[f]
whether the appellant was in ‘possession’ of the ivory
as contemplated in s 42(1)(b);
[g]
whether the appellant was ‘selling’ the ivory as
contemplated in s 46(c) read with the definition of ‘sale’;
[h]
if so, whether he had the necessary mens rea;
[i]
if the appellant was rightly convicted, whether interference with
the sentence on appeal is justified.
[18] A
considerable part of the written argument was devoted to questions
[a], [b] and [c]. By contrast, counsel for the appellant
and for the
state did not in their written argument analyse and make submissions
concerning the proper interpretation of ‘acquired’
and
‘possession’ for purposes of the relevant provisions of
the Ordinance or concerning the form of mens rea required
by these
provisions. Pursuant to questions from the bench, counsel on both
sides submitted a supplementary note on the question
of possession.
The
admissibility of the evidence seized on 17 August 2009
[19] The
question whether the evidence seized on 17 August 2009 was rightly
admitted at the appellant’s trial requires a consideration
of
the first three questions summarised in para 17 above.
Statutory
search and seizure provisions
[20] Section
21(1) of the Ordinance confers certain coercive powers on nature
conservation officers. The relevant provisions of
this section read
thus:
‘
21(1)
A nature conservation officer may, subject to any limitation imposed
in terms of section 25(2) –
(a)
demand from any person performing or whom he or she reasonably
suspects of having performed any act for the performance of
which a
licence, permit, exception, order or the written permission of the
owner of land or of any other person is necessary under
any provision
of this ordinance the production of such licence, permit, exemption,
order or permission;
(b)
– (d) …;
(e)
demand from any person who is required under this ordinance to keep
any book, statement or invoice the production of such book,
statement
or invoice;
(f)
conduct any investigation he or she considers necessary in order to
ascertain whether any provision of this ordinance is being
complied
with by any person and may for such purpose without warrant and
without permission enter upon any land, premises, vehicle,
place,
building, tent, vessel, boat, craft, float, aircraft or other means
of conveyance and there carry out such inspection and
investigation
as may be necessary, including an inspection or investigation of any
container or other thing found thereon or therein;
(g)
…;
(h)
without warrant and without permission, enter upon land, premises,
vehicle, vessel, boat, craft, float, aircraft or other means
of
conveyance and there conduct a search if he or she reasonably
suspects that there is thereon or therein anything which –
(I)
is used or has been used in;
(ii)
forms or has formed an element in, or
(iii)
will afford evidence of, he commission of any offence under this
ordinance
(I)
without warrant seize anything which –
(i)
may, in his or her opinion, afford evidence of the commission of an
offence under this ordinance, or
(ii)
…;
(j)
… .’
[21] The
above powers are exercisable by nature conservation officers.
Gildenhuys and Carl Brown were such officers.
[22] Police
officials (such as Potgieter and his police colleagues) can exercise
the powers conferred by Chapter 2 of the Criminal
Procedure Act 51 of
1977 (‘the CPA’). Subject to the provisions of sections
22, 24 and 25 (none of which is relevant
in the present case), a
police official may seize evidence by virtue of a search warrant
issued in terms of s 21. No search warrant
was obtained in this case.
[23] In
addition to the power of search and seizure pursuant to a warrant
issued in terms of s 21, s 23 of the CPA confers the following
power
of search and seizure when a person is arrested:
‘
23(1)
On the arrest of any person, the person making the arrest may –
(a)
if he is a peace officer, search the person arrested and seize any
article referred to in section 20 which is found in the
possession of
or in the custody or under the control of the person arrested, and
where such peace officer is not a police official,
he shall forthwith
deliver any such article to a police official; or
(b)
if he is not a peace officer, seize any article referred to in
section 20 which is in the possession of or in the custody or
under
the control of the person arrested and shall forthwith deliver any
such article to a police official.’
[24] The
articles referred to in s 20 constitute anything
‘
(a)
which is concerned in or is on reasonable grounds believed to be
concerned in the commission or suspected commission of an
offence
whether within the Republic or elsewhere;
(b)
which may afford evidence of the commission or suspected commission
of an offence whether within the Republic or elsewhere;
or
(c)
which is intended to be used or is on reasonable grounds believed to
be intended to be used in the commission of an offence.’
The
magistrate’s view
[25] At
the criminal trial the appellant’s counsel submitted that s
21(1) of the Ordinance unjustifiably violated the appellant’s
right to privacy as guaranteed by the Constitution. The magistrate
appreciated that she was not empowered by the Constitution to
declare
a provincial ordinance invalid. She nevertheless considered that s
21(1) was constitutionally suspect and that the conduct
of the
officials on 17 August 2009 constituted a search and seizure which
violated the appellant’s privacy rights. She considered
that it
was therefore necessary to address whether the evidence should
nevertheless be admitted in terms of s 35(5) of the Constitution.
She
considered that the evidence should be admitted in the interests of
justice.
[26] Because
the magistrate did not have the power to disregard s 21(1) of the
Ordinance as constitutionally invalid, and because
a declaration of
invalidity would in any event be without effect until confirmed by
the Constitutional Court, logic suggests that
the magistrate should
have answered the question of admissibility on the assumption that
any infringement of the appellant’s
right to privacy was
authorised by s 21 of the Ordinance. However, since the magistrate
would have been aware that the question
of constitutional invalidity
could in due course be determined by the high court on appeal, one
can understand why she adopted
the approach she did. It at least
means that this court has the benefit of the magistrate’s view
if it should emerge that
s 21(1) is constitutionally invalid.
Constitutional
validity of s 21 of Ordinance
[27] The
appellant has asked this court to find paras (h) to (j) of s 21(1) of
the Ordinance constitutionally invalid. As a matter
of procedure,
this relief has been sought not in the appeal but in the related
civil proceedings. As will appear from the judgment
in the civil
proceedings, to be delivered simultaneously with this one, we have
concluded that the constitutional challenge should
not be entertained
and that even if an order of constitutional invalidity were made by
us and confirmed by the Constitutional Court
the declaration is
unlikely to be given retrospective effect.
[28] It
follows that we, like the magistrate, must determine the matter on
the basis that s 21(1) was valid and that, to the extent
that the
officials performed a search and seizure which was not otherwise
justified in law, s 21(1) provided them with the requisite
legislative authorisation.
What
if s 21(1) of Ordinance retrospectively invalid?
[29] However,
it is possible that a higher court may in due course find that paras
(f) to (j) of s 21(1) of the Ordinance should
have been declared
invalid with retrospective effect (except, perhaps, for completed
cases). It is therefore desirable that we
state our view of the
matter on that assumption.
[30] The
nature conservation officials and police officials arrived at the
shop at about 15h30 on 17 August 2009. Earlier in the
day Gildenhuys
had received an anonymous telephone call informing him that the
appellant was unlawfully in possession of a large
quantity of ivory.
There was some discrepancy in the evidence as to when the call was
made. Gildenhuys’ evidence was that
he received the anonymous
call at about 13h30. By contrast, his colleague, Carl Brown, said
that he heard about the anonymous call
from Gildenhuys when he
arrived at office at about 08h00.
[31] The
evidence of Gildenhuys and Potgieter was that they entered the shop
before the other officials. Even before they entered
the shop they
could see through the window that a large quantity of ivory items was
on display. Upon entry they asked for the person
in charge. The
appellant came down from his office on the first floor (which
overlooked the shop) to talk to the officials. Gildenhuys
asked him
whether he was in possession of the documents required to sell the
ivory. The appellant went off and returned with documentation.
Precisely what the documentation was is not altogether clear from the
evidence. According to the state witnesses, the appellant
merely
showed them a packing list relating to a small quantity of ivory. The
appellant testified that he also produced various
invoices which the
officials did not look at. Be that as it may, the appellant produced
at the trial what documentation he could.
Such documentation did not
include a permit as contemplated in s 46(c). Although invoices for
some ivory items were produced at
the trial, it is obvious (assuming
those invoices constituted statements of origin as contemplated in s
41) that they covered only
a very small part of the ivory found at
the shop and at the two residences.
[32] When
the appellant could not produce the documents contemplated in s
42(1)(b) and s 46(c), he was arrested and the ivory in
the shop was
seized and placed in exhibit bags.
[33] When
a public official exercises coercive state power which violates a
person’s reasonable expectation of privacy, he
requires
statutory authority. The empowering statute may itself be
constitutionally invalid if the invasion of privacy which it
authorises cannot (at all or to its full extent) be justified with
reference to the considerations mentioned in s 36 of the
Constitution.
The leading Constitutional Court judgments on this
subject are Mistry v Interim Medical and Dental Council of South
Africa &
Others
1994 (4) SA 1127
(CC), Magajane v Chairperson,
North West Gambling Board & Others
[2006] ZACC 8
;
2006 (5) SA 250
(CC) and
Gaertner & Others v Minister of Finance & Others
[2013] ZACC
38.
In Magajane it was held that coercive powers of this kind,
whether in the form of routine inspections or targeted raids,
infringe
the right of privacy, so that statutory provisions
authorising such action limit the right of privacy guaranteed by s 14
of the
Constitution and need to be justified under s 36.
[34] On
the assumption that paras (f) to (j) of s 21(1) of the Ordinance are
constitutionally invalid and that such invalidity should
operate
retrospectively to the potential benefit of the appellant, the
question arises whether the officials needed to rely on
the impugned
paragraphs of s 21(1). It is doubtful, to my mind, whether the
conduct of the officials in visiting the shop constituted
a search
which violated the reasonable expectation of privacy of the appellant
or of any other person. (By ‘search’,
I mean any coercive
state action which violates the privacy of the subject, regardless of
whether it is a targeted search or a
routine inspection: see Magajane
para 59.) The shop was open to the public. The items in which the
officials were interested were
for the most part on public display.
They could be seen even from outside the shop. A reading of the
evidence as a whole does not
suggest that the officials went there
for the primary purpose of establishing whether there was ivory on
the premises. The Gift
Shop has been operating in public view for
many years. It could hardly have been contentious that there was
ivory on display for
sale. The reason for the visit was to establish
whether the ivory was lawfully possessed and lawfully exhibited for
sale. That
involved ascertaining (in the officials’ minds)
whether the appellant had the requisite statements of origin and
permit.
Sections 21(1)(a) and (e) entitled Gildenhuys to ask the
appellant whether he had the requisite permit and statements of
origin.
The appellant does not contend, in the related civil
proceedings, that paras (a) and (e) of s 21(1) are constitutionally
objectionable.
(Similar powers in sub-paras (iii) and (iv) of s
4(4)(a) of the Customs Act 91 of 1964 were held by the court a quo in
Gaertner
not to violate privacy [see paras 66 and 68, with reference
to Bernstein & Others v Bester & Others NNO
[1996] ZACC 2
;
1996 (2) SA 751
(CC)]. This analysis appears to have been accepted in the
Constitutional Court proceedings in Gaertner, since no order of
invalidity
was made in regard to those particular sub-paragraphs.)
The evidence does not suggest that Gildenhuys and the police
officials
attended at the shop in order to conduct a coercive search
for documentation nor did they do so. Their enquiry was whether the
appellant could produce the documents. They had no interest in
rummaging through the shop’s records if it should transpire
(as
it did) that the appellant could not produce the required documents.
[35] When
the appellant was unable to produce the required documentation,
Gildenhuys and the police officials, who regarded him
as being the
owner and in control, formed the view that he was committing the
offences in s 42(1)(b) and s 46(c). These were continuing
offences
and were thus, in the view of the police officials, being committed
in their presence. Potgieter thus informed the appellant
of his
rights and arrested him under the power conferred by s 40(1)(a) of
the CPA. This then entitled the police officials to exercise
the
power of seizure conferred by s 23(1) of the CPA, hence the seizure
of the ivory items in the shop. Although the nature conservation
officers could (subject to questions of constitutional invalidity)
have seized the ivory in terms of s 21(1)(i) of the Ordinance,
the
seizure appears in fact to have been made by the police, with the
seized items being placed in sealed police evidence bags.
[36] In
the related civil proceedings a submission was made on behalf of the
appellant that s 23(1) of the CPA only permits a peace
officer to
seize items found on the person of the arrested individual. I see no
reason to give s 23(1)(a) such a narrow meaning.
The section refers
to an item found ‘in the possession of or in the custody or
under the control of’ the arrested person.
Clearly an item can
be in a person’s possession or in his custody or under his
control without being on his person. Whether
the ivory was in truth
in the possession of or in the custody or under the control of the
appellant is a question that will need
to be considered when the
merits of the convictions under s 42(1)(b) and s 46(c) are addressed.
If the ivory was not in his possession
for purposes of those
sections, he would be entitled to an acquittal; if the ivory was
indeed in his possession for purposes of
those sections, it would
clearly also have been in his possession or under his custody or
control for purposes of s 23(1) of the
CPA, since the latter
section’s references to possession, custody or control are if
anything wider, and certainly not narrower,
than the possession
required by s 42(1)(b) and s 46(c) of the Ordinance.
[37] It
may, however, be argued, that although the shop was open to the
public it nevertheless constituted private property and
that members
of the public were only entitled to enter if they were bona fide
shoppers or if they had other legitimate business
to conduct at the
shop. Even on this view, I think that paras 21(1)(a) and (e) of the
Ordinance, which, I repeat, are not subject
to constitutional attack,
are a sufficient authority for a nature conservation officer to enter
a shop for purposes of asking the
person in control whether he has
the documents needed to possess and exhibit for sale the items
displayed in the shop.
[38] In
United States and Canadian jurisprudence the so-called plain view
doctrine is accepted as being, in appropriate circumstances,
an
exception to the requirement of a warrant. In one of the leading
Canadian cases, R v Spindloe
2001 SKCA 58
CanLII, Jackson JA said
that in order for the doctrine to apply the police must have gained
entry to or be at the premises lawfully.
The requirements mentioned
in certain earlier cases, to the effect that the criminal nature of
the evidence must be ‘immediately
apparent’ and that the
evidence must have been discovered ‘inadvertently’, were
not approved as formal prerequisites
for the application of the
doctrine. The plain-view power of seizure cannot be exercised as a
pretext for a planned warrantless
seizure but if the police official
is lawfully on the premises, he or she may seize items in plain view
provided there is probable
cause to associate the discovered property
with criminal activity (paras 41-42).
[39] Most
of the subsequent Canadian decisions have considered the doctrine in
relation to more problematic examples than items
displayed in a
retail shop. Spindloe itself was a case of a retail shop, though only
some of the seized items were in plain view.
A subsequent case
involving retail premises is R v Symbalisty
2004 SKPC 61
CanLII,
which concerned a routine inspection of a pawn shop regulated by a
municipal bylaw. White PCJ said (para 65) that
‘
at
the heart of the doctrine is the notion that if items are displayed
publicly in areas where the public generally has access to
them and
if the items appear to be evidence of a crime then, logically, it
follows that the owner has little or no expectation
of privacy which
is the foundation stone upon which the entire edifice of search and
seizure law rests and which in the normal
course of events will
necessitate the judicial prior authorisation of police intrusions
into the affairs and property of Canadian
citizens’.
The
learned judge held, however, that in the case before him the items
had not been in plain view (para 66):
‘
Clearly,
in this case the accused as owner and operator of the pawn shop
premises had a clear expectation of privacy with respect
to that
portion of his business that was not open or accessible to the
general public. He had no such expectation with respect
to the front
portion of the business where customers would be permitted to enter
and remain to transact their business. He also
had no expectation of
privacy with respect to his book entry records of the pawn
transactions which the police had a right to look
at and inspect
pursuant to the City of Saskatoon By-Law.’
[40] If
I were to apply the plain view doctrine in the present case, I would
conclude that the officials were lawfully in the public
area of the
Gift Shop premises for making the enquiries contemplated in s
21(1)(a) and (e) of the Ordinance. When the required
documents could
not be produced, they were entitled to seize the ivory which was in
plain view. However, I do not think it is necessary
to rely on a
doctrine developed elsewhere. It suffices, applying the principles of
our own law, that there was no reasonable expectation
of privacy in
relation to the items displayed in the shop; that the officials were
entitled to enter the public part of the premises
to make enquiries
pursuant to statutory provisions the constitutionality of which has
not been attacked (ie paras (a) and (e) of
s 21(1)); and that when
the documents required by law could not be produced, they were
entitled to arrest the appellant and to
seize the items on the
statutory authority of s 23 of the CPA.
[41] It
was argued that in Magajane the gambling board and police officials
had, as in the present case, gone to a place which was
open to the
public, namely the Las Vegas Gold gambling establishment in
Lichtenburg. However, the Constitutional Court was not
called upon to
decide whether and to what extent the conduct of the officials in
that case constituted an invasion of privacy.
By the time the matter
reached the Constitutional Court criminal charges had been withdrawn
against Magajane and the seized property
had been returned to him
(see footnote 7 to the judgment). What the Constitutional Court
considered was whether ss 65(1)and (2)
of the North West Gambling Act
2 of 2001 were constitutionally valid. That did not depend on the
specific facts of Magajane’s
case. Furthermore, the facts of
that case involved features which would undoubtedly have involved a
search which invaded Magajane’s
privacy. Undercover agents had
gone to the establishment and played on the gambling machines using
marked money. The board and
police officials thereafter went to the
establishment and asked Magajane to produce a gambling licence. When
he was unable to do
so, the officials informed him that they intended
to search the premises and seize gambling equipment, records and
other items.
The officials then searched the cash register and a safe
and seized the money they found. They also seized the gambling
machines
by locking the premises. In the present case, by contrast,
the officials did not search private parts of the shop (such as a
cash
register or safe) nor did they search through the shop’s
records.
[42] It
was also argued that the search in Mistry was of a place open to the
public. That is not how I read the case. The inspectors
in that case
went to a doctor’s surgery and searched it in his absence,
seizing certain items (para 10). A doctor’s
surgery is not like
a shop where members of the public can wander around and view items
on display for sale. Be that as it may,
the focus of the decision was
on the constitutional validity of the statutory provisions in
question; no order was made in regard
to the actions of the
inspectors.
Section
35(5) of the Constitution
[43] If
I am wrong, and if the only basis on which the officials could enter
the shop and seize the ivory was in terms of paras
(f), (h) and (i)
of s 21(1) of the Ordinance, their conduct will be shown to have been
unlawful if those paragraphs of the section
are struck down with
retrospective effect. It was not argued on behalf of the state that a
warrantless search in terms of s 22
of the CPA was justified. On this
view, it would be necessary to determine, as did the magistrate,
whether the evidence constituted
by the seized ivory was nevertheless
correctly admitted in terms of s 35(5) of the Constitution. That
section provides that evidence
obtained in a manner that violates any
right in the Bill of Rights must be excluded ‘if the admission
of that evidence would
render the trial unfair or otherwise be
detrimental to the administration of justice’.
[44] In
my view, the magistrate was right, on this hypothesis, to rule the
evidence admissible. The illegal trade in ivory is a
scourge which
has attracted united international attention. It is important that it
should be combatted. Although the relevant
paragraphs of s 21 of the
Ordinance might be declared invalid with retrospective effect, no
such declaration had been made at the
time the officials were
required to investigate the information they received on 17 August
2009. It was, on the assumptions I have
made in this part of the
judgment, the only statutory power they had. The nature conservation
officers may well not have been able,
through the police officials,
to obtain a search warrant in terms of s 21 of the CPA. They only had
anonymous information. The
critical issue, moreover, was not whether
there was ivory at the shop but whether the appellant (assuming he
was in possession
of the ivory at the shop) had the required
documents lawfully to possess and sell the ivory. The officials did
not have any evidence,
apart from an anonymous telephone call of
vague import, that the appellant did not have the requisite
documents. The obvious course
of action was to enter the shop and ask
him. Once the police officials formed the view that continuing
offences were being perpetrated
in their presence because of the
appellant’s failure to produce the requisite documents, I am
satisfied that they were entitled
to arrest him and seize the ivory
in terms of s 23(1) of the CPA. The violation of the privacy rights
of the appellant or of the
proprietor of the shop (his mother) was
minimal. It can hardly be suggested that the real evidence
constituted by the ivory would
not in any event have been found,
given the public nature of its display (cf S v De Vries & Others
2009 (1) SACR 613
(WCC) para 70, where Bozalek J said, in relation to
the real evidence seized in that case, that the accused had not been
conscripted
into furnishing evidence against themselves which would
not otherwise have been available to the police, that the seized
items
had been in plain view, and that the officials did not make
themselves guilty of unreasonable or disorderly conduct during the
search; and see also S v Nell
2009 (2) SACR 37
(WCC) paras 22-24).
The admission of that real evidence would not bring the
administration of justice into disrepute or provide
state officials
with an incentive to use illicit investigative techniques (cf S v
Pillay & Others
2004 (2) SACR 419
(SCA) paras 86-98).
[45] Much
was made by the appellant’s counsel of the discrepancy in the
evidence of Gildenhuys and Carl Brown as to when the
anonymous call
was received (13h30 or 08h00) but these discrepancies do not point to
mala fides on the part of the officials. It
was not put to either of
them at the trial within a trial that they were lying. Gildenhuys did
not attempt to make out, at the
criminal trial, that there was any
urgency which precluded him from requesting the police officials to
seek a warrant in terms
of the CPA; he testified that they did not
need a warrant and that given the anonymous nature of the information
they would probably
not have obtained one. Potgieter’s
evidence was that when the police officials met up with Gildenhuys
and Brown before visiting
the shop, Gildenhuys told them that in
terms of s 21 of the Ordinance a warrant was not needed.
Ivory
found at the residences
[46] Thus
far I have been discussing the ivory items found at the shop. As to
the smaller quantities of ivory found at the homes
of the appellant
and his mother, the evidence was that after the police officials
arrested the appellant at the shop, the latter
called his attorney.
The police officials did not begin placing the ivory in evidence bags
until the attorney arrived. At a time
when the appellant’s
attorney was present at the shop, the officials asked the appellant
whether he had any ivory at his
home. He said that as far as he was
aware there were no ivory items at his home. The officials asked if
they could accompany him
there to look. The appellant spoke with his
attorney and thereupon said that this would be in order. Certain of
the officials,
including Combrink, drove with the appellant to his
home. The appellant mentioned to Combrink that his mother was the
owner of
the shop and that it would be necessary to go to her house
as well as there was some ivory there.
[47] At
the appellant’s residence the ivory items seized there were
found in a washing basket in the appellant’s son’s
room.
After taking possession of this ivory, the officials and the
appellant went to Mrs Marcus’ home nearby. The appellant
went
in first and spoke with his mother (who was bedridden) and then
returned to the officials and took them through to a work
room
forming part of his mother’s home. This was the only room that
the officials entered. It is a room that was used not
only by the
appellant’s mother but by other employees working at the shop.
It was there that further items of ivory were
seized.
[48] The
evidence as a whole satisfies me that the visits to the two homes
occurred with the informed consent of the owners of the
properties.
The evidence found there was thus lawfully obtained. Reliance on s
35(5) of the Constitution was unnecessary. However,
if I am wrong, I
think the evidence would nevertheless have been admissible in terms
of s 35(5) for similar reasons to those already
given in relation to
the ivory found at the shop.
Meaning
of ‘carcase’
[49] It
is common cause that the appellant could only have been guilty of the
charges on which he was convicted if the ivory items
fell within the
definition in the Ordinance of ‘carcase’. In view of the
conclusion we have reached on other matters,
it might not strictly be
necessary to deal with the interpretation of ‘carcase’.
It could be assumed, without deciding,
that the ivory items fell
within the definition. However, it is desirable that we address this
question, not only because the appellant
has in the related civil
proceedings sought certain relief in relation to the definition but
also because the character of the
seized ivory may have an effect on
what happens to the ivory if the appellant is acquitted.
[50] It
was argued on behalf of the appellant that items manufactured from
the body parts mentioned in the definition of ‘carcase’
did not fall within the definition. It was submitted that all the
ivory found on 17 August 2009 took the form of manufactured items.
Some of them (like delicately carved statuettes) were more intricate
than others but even the more basic items (such as some of
the
unadorned hankos) had been carefully cut and polished.
[51]
It is not in doubt that the ivory came from elephant tusks. The
definition of ‘carcase’ includes any ‘part’
of the listed body parts. Since a tusk is one of the listed body
parts, a part of a tusk is also within the definition. I did not
understand the appellant to argue that if a tusk were simply sliced
into two or three parts, the parts of the tusk would not be
within
the definition. The appellant’s argument rests upon the
proposition that the manufacturing of an item from such ivory
takes
it outside the definition (the appellant’s ultimate contention
was that ‘worked ivory’ did not fall within
the
definition).
[52] If
a part of a tusk falls within the definition, it is not apparent to
me why the position should be different because the
part of the tusk
has been shaped with a carver’s skill. Each of the ivory items
seized on 17 August 2009 was carved out of
a tusk. Other parts of the
tusk were removed to leave the carved item, whether it was a
statuette, a chopstick, a bangle or a hanko.
One cannot draw a
rational distinction between some parts of the tusk and others merely
because of the degree of skill applied
in cutting the ivory.
[53] It
was submitted on behalf of the appellant that to give the definition
this meaning would give rise to absurd consequences.
Various
hypothetical examples were given, for example the case of a porcupine
quill or feather picked up in the veld. Those items,
however, clearly
fall within the definition. They are in their natural state. It would
not be absurd to include them within the
definition of ‘carcase’.
The question of absurdity must be considered with reference to what
the Ordinance prohibits.
The Ordinance does not prohibit the
possession of a porcupine quill or feather picked up in the wild.
Section 42(1)(b), for example,
only requires a statement of origin
where the possessor has acquired the animal or carcase from another
person. Section 46(1)(c)
would regulate the possession of feathers
and porcupine quills for sale but there is nothing absurd about that.
[54] It
was also submitted for the appellant that one will often find for
sale at craft markets items made from wild animal parts,
such as
tortoiseshell rings or accessories manufactured from animal skins.
The ordinary person, it was argued, would not think
they were selling
or buying a ‘carcase’ yet they might be guilty of an
offence under the Ordinance. However, we are
not concerned with the
ordinary meaning of the word ‘carcase’ but with the
ordinary meaning of the words in the statutory
definition of
‘carcase’. I do not find it absurd that people who trade
in tortoiseshell rings or items manufactured
from the skins of wild
animals should be required to obtain statements of origin and to
possess a selling permit. A member of the
public buying such an item
at a craft market might well not know that he or she requires a
statement of origin in order lawfully
to possess the item in terms of
s 42(1)(b). It will often be the case that a commercial invoice would
satisfy the requirements
of a statement of origin. However, if a
member of the public who purchased such an item did not have a
document satisfying the
requirements of the statement of origin, it
is most unlikely that the state would be able to prove that such
person had the necessary
mens rea to commit the offence (whether in
the form of negligence or intent). Officials are likely, in their
endeavours to combat
the illicit trade in wild animal parts, to focus
on persons who are commercially involved in such material or who
possess such
material to a large extent.
[55] Another
example posited by the appellant’s counsel was kudu biltong. It
would be absurd, so it was contended, if a member
of the public who
purchased kudu biltong at a shop could be prosecuted in the absence
of a statement of origin. There is no doubt,
however, that kudu
biltong would be within the definition. Whatever the position may be
in relation to other animal body parts,
the definition of ‘carcase’
expressly includes meat which has been dried, smoked, salted, cured
or treated in any manner
(a kudu is a ‘wild animal’
though farmed ostrich is not). The DPP’s counsel responded
that this particular example
was inapt, because s 45 of the
Ordinance, which deals specifically with the sale of biltong or
biltong sausage, is a special provision
rendering the general
provisions of s 42 inapplicable. I am not sure that this is so.
Section 45 could well be construed as imposing
obligations in
addition to those imposed by s 42 and by s 46. On this view, a
merchant selling kudu biltong would need to have
a statement of
origin (s 42) and a selling permit (s 46) and would in addition need
to comply with the requirements of s 45. Be
that as it may, if s
42(1)(b) applies to a person who buys a piece of kudu biltong at a
shop, the seller (the merchant) would be
obliged by s 41(1) to
furnish the purchaser with a statement of origin. As noted
previously, a commercial invoice might suffice.
An innocent member of
the public who did not receive and keep such an invoice would almost
certainly not be prosecuted, given the
absence of mens rea and the
trivial nature of the offence (our law reports reflect that the maxim
de minimis non curat lex can
be invoked as a defence to prosecutions
for truly trivial contraventions).
[56] It
is important to emphasise that we are not dealing in the present case
with a commodity manufactured by some process in which
the
constituent parts of the final commodity have undergone chemical
change or been indistinguishably merged into a new product.
We are
concerned with the ivory of a tusk, carved out with a greater or
lesser degree of skill from a tusk, and perhaps polished.
[57] Another
example that was given to us to illustrate the supposed absurdity of
the wide definition was the ivory found on the
keyboard of a piano.
Since the piano keys would be cut from ivory, the owner of a piano
would, so it was argued, need a statement
of origin as contemplated
in the Ordinance and a dealer in pianos would require a selling
permit under the Ordinance. It is unnecessary
to decide whether the
definition would apply to a composite item (such as a piano) in the
manufacture of which only a small amount
of ivory was used. We are
concerned in the present case with items composed wholly of ivory and
created by removing surrounding
parts of the tusk through carving and
other techniques. I would simply add that there is no evidence that
ivory is currently used
in the manufacture of pianos and, if not,
when ivory ceased to be used for pianos.
[58] The
appellant’s counsel referred to two textual considerations
which were said to support a narrow interpretation of
‘carcase’.
The first was the presence, in the definition itself, of the
bracketed words ‘(whether dried, smoked,
salted, cured or
treated in any manner)’. This parenthesis applies to the
immediately preceding words ‘any part of
the meat’. The
argument was that, in the absence of similar qualifications in
relation to the other body parts specified
in the definition, such
parts were intended to be included only in their raw form. There is
some force in this contention but I
do not think it can prevail. The
legislature probably added the bracketed words ex abundanti cautela
in case the word ‘meat’
were otherwise interpreted as
meaning only raw meat. Since meat is commonly preserved by the
methods specified in the bracketed
words, the lawmaker wished to
place beyond doubt that meat preserved in those forms fall within the
definition. The manner in which
the forms of treatment are introduced
in the bracketed phrase, ie by using the word ‘whether’,
reinforces the view
that in specifying that preserved meat was
covered the lawmaker did not see itself as extending the ordinary
meaning of the word
‘meat’ but as ensuring that the
ordinary meaning would not be misunderstood.
[59] There
is a similar bracketed phrase in s 47A(1)(b) of the Ordinance.
Section 47A deals specifically with the protection of
rhinoceroses.
Section 47A(1) prohibits the performance of certain acts without a
permit. The prohibitions in paragraph (a) relate
to the rhinoceros as
a live animal. Paragraph (b) prohibits various acts in relation to
‘carcase (whether untreated, processed,
prepared, cured, tanned
or treated in any other manner whatsoever) of any rhinoceros’.
The carcase of a rhinoceros would
include its horn. The bracketed
words emphasise that the protection applies to the horn, whether
treated or untreated or otherwise
processed. Once again, the use of
the word ‘whether’ indicates that the lawmaker was for
the avoidance of doubt specifying
that the word ‘carcase’
covered items whether in raw, treated or processed form. I do not
think that one can infer,
from the express inclusion of this type of
emphatic language in relation to ‘meat’ (in the
definition of ‘carcase’)
and in relation to the carcase
of rhinoceroses (in s 47A), that the body parts listed in the
definition of ‘carcase’
do not include those parts if
they have been treated or processed.
[60] The
other textual consideration to which we were referred were the
provisions of ss 44(1)(c) and (d). Section 44 prohibits
the
performance of certain acts in relation to certain wild animals
without a permit. Paragraphs (c) and (d) relate to ‘endangered
wild animals’. That expression is defined in s 2 of the
Ordinance. It is common cause that the African elephant does not
fall
within the definition. Paragraphs (c) and (d) of s 44 provide that a
person may not, without a permit:
‘
(c)
sell, buy, donate or receive as a donation the carcase or anything
manufactured from the carcase of any endangered wild animal;
(d)
process, prepare, cure, tan or in any manner whatsoever treat the
carcase of any endangered wild animal for the purpose of –
(I)
manufacturing any article therefrom;
(ii)
exhibiting such carcase or any article manufactured therefrom, or
(iii)
mounting such carcase,…’
[61] The
appellant’s argument was that the words ‘or anything
manufactured from the carcase’ in para (c) would
have been
unnecessary if the definition of ‘carcase’ already
included items manufactured from the carcase. I do not
think the
argument is sound. The lawmaker intended to provide special
protection in relation to endangered wild animals. The inclusion
of
the words ‘or anything manufactured from the carcase’
avoids debate as to whether the manufactured items still fall
within
the definition. What I have already said regarding the interpretation
of the definition of ‘carcase’ does not
lead to the
inevitable conclusion that everything manufactured from a carcase is
itself a carcase. I have allowed for the possibility
that a
manufactured item might in appropriate circumstances not fall within
the definition, even though the end product includes
some element
which was once a ‘carcase’. Paragraph (c) of s 44(1)
ensures that even such items are, in relation to
endangered wild
animals, within the special prohibition created by the section.
[62] Paragraph
(d) of s 44(1) does not to my mind cast any light on the question.
The prohibition is directed at the performing
of certain acts, for
certain specified purposes, in relation to a carcase; those acts
cannot be performed without a permit. It
by no means follows that
once those acts have been performed in relation to a carcase, the
item on which they have been performed
ceases to be a ‘carcase’.
Indeed, we know from the definition of ‘carcase’ that the
curing of rhinoceros
meat would not mean that the cured meat is not
within the definition of ‘carcase’.
[63] The
appellant argued that if the definition of ‘carcase’
included decorative items manufactured from the body parts
of wild
animals, it was unconstitutional as being vague and overbroad and
thus in violation of the foundational principle of the
rule of law.
The examples previously mentioned (and others) were quoted in support
of this argument. It was submitted that the
definition should thus be
‘read down’ or declared invalid. While vagueness is a
basis on which legislation can in principle
be declared
constitutionally invalid (South African Liquor Traders’
Association & Others v Gauteng Liquor Board &
Others
2009 (1)
SA 565
(CC) paras 25-28), a court will naturally be most reluctant to
strike down a statute as being so vague as to be inconsistent with
the rule of law. I do not regard the definition in the present case
as being repugnant to the rule of law. Many statutory provisions
give
rise to potential difficulties in their application to borderline
cases. Those matters almost always can be resolved through
a process
of interpretation. It would not be appropriate in the present matter
to attempt to envisage every hypothetical case (such
as the piano
with ivory keys) in which the definition of ‘carcase’
might present difficulty since there is a danger
of coming to glib
conclusions without proper consideration of each potentially
problematic case. Whatever restrictions on the definition
might be
thought appropriate in other situations, I see no difficulty or
absurdity in applying the definition to an item carved
from an ivory
tusk.
[64] Moreover,
if there were a valid constitutional complaint, I am by no means
certain that it is properly directed at the definition
of ‘carcase’.
The examples of supposed absurdity were proffered mainly in relation
to the possession of a random item
falling within the definition by
an unsuspecting member of the public in violation of s 42(1)(b). Most
of these examples lose such
force as they have when applied to the
regulation of the activities of persons engaged in the selling of
such items (s 41 and s
46(c)). This suggests that, if there is a
problem, it is not with the definitions but with the formulation of
the offences.
[65] I
thus conclude that the magistrate was right to find that the ivory
items were within the ambit of the Ordinance. Indeed,
the contrary
argument does not seem to have featured significantly in the conduct
of the criminal trial.
Section
42(1)(b) – ‘acquired’ and ‘found in
possession’
[66] Section
42(1) does not penalise possession of wild animals and carcasses in
general. The section applies only in two instances
where a person is
found in possession of a wild animal or carcase, namely [a] if the
animal was hunted by such person on the land
of another person (in
which case the former must have written permission from the latter as
contemplated in s 39); or [b] if the
animal or carcase was ‘acquired’
from another person (in which case the person found in possession
must be in possession
of a statement of origin as contemplated in s
41, issued by the person from whom he acquired the item). We are
concerned in the
present case only with the second of these
circumstances.
[67] In
order for the appellant to have been convicted on counts 1, 3 and 5,
it was necessary for the state to prove beyond reasonable
doubt that
the appellant ‘acquired’ the ivory items from another
person. It was also necessary to prove beyond reasonable
doubt that
the appellant was ‘found in possession’ of the ivory
items. It is convenient to consider these two elements
of the crime
together, because each has a bearing on the other.
[68] The
ordinary meaning of ‘acquire’ in relation to a corporeal
item is to obtain ownership of the item (Transvaal
Investment Co Ltd
v Springs Municipality
1922 AD 337
at 341, 347 and 358; Brodie and
Another v SIR
1974 (4) SA 704
(A) at 714E-715E) though in appropriate
circumstances the statutory context may show that it means to become
vested with the right
to obtain ownership (Minister of Finance v Gin
Bros & Goldblatt
1954 (3) SA 881
(A) at 884F-G; Secretary for
Inland Revenue v Wispeco Housing (Pty) Ltd
1973 (1) SA 783
(A) at
791C-D). The word does not usually connote the mere obtaining of
physical control or custody.
[69] Because
s 42(1)(b) creates an offence which will be committed unless the
person is in possession of a statement of origin as
contemplated in s
41, it is permissible and indeed necessary, in interpreting the word
‘acquired’ in s 42(1)(b), to
have regard to the kinds of
transactions contemplated by the requirement in s 41 for a statement
of origin. That section provides
that no person shall ‘donate’
or ‘sell’ any wild animal or carcase to another person
unless he furnishes
the latter with a statement of origin. Donations
and sales are transactions which envisage the transferring of
ownership in an
item from the disposer to the acquirer. Only a person
who has obtained a wild animal or carcase from another by way of sale
or
donation would come into possession of a statement of origin. It
follows, in my opinion, that the word ‘acquired’ in
s
42(1)(b) means that the person found in possession should have
obtained ownership from a disposer or should at least have a vested
right to obtain ownership from the disposer (for example, pursuant to
a purchase agreement under which ownership does not pass
until the
purchase price is paid).
[70] As
previously mentioned, the appellant’s guilt must be assessed on
the basis that the ivory belonged to his mother who
was the sole
proprietor of the Gift House curio shop. That is certainly true for
the ivory found at the shop and for the ivory
found at Mrs Marcus’
residence. In regard to the ivory found at the appellant’s
home, his evidence was that he was
not aware that his son had the
items, that he was surprised when they were found in his son’s
room, and that he subsequently
learnt from his son that the latter
had been asked by his grandmother (Mrs Marcus) to do some repair work
on the items. The items
in question were hankos which apparently had
uneven surfaces which Mrs Marcus asked the appellant’s son to
sand. I do not
think this explanation was so far-fetched that it
could be rejected as not reasonably possibly true.
[71] On
29 August 2009, about two weeks after the seizure of the ivory, Mrs
Marcus passed away. In terms of her will the curio shop
business was
bequeathed to the appellant. This would have included the stock of
ivory. However, at the time the ivory was found
and seized on 17
August 2009, the appellant was neither the owner of the ivory nor had
he yet acquired any vested right to become
the owner. In law his
mother could have changed her will at any time prior to her death.
The appellant described his mother as
unpredictable but it is
unnecessary to rely on that evidence for the proposition that the
appellant had not in law ‘acquired’
his mother’s
ivory as at 17 August 2009.
[72] A
related consideration is the meaning of the phrase ‘found in
possession’, which is a common element of the offences
created
by paragraphs (a) and (b) of s 42(1). The word ‘possession’
comprises a physical element of control together
with a mental
element. The mental element, depending on the context, may take one
of three forms: [a] an intention to hold as owner
(possessio
civilis); [b] an intention to hold for one’s own benefit
(possessio naturalis); [c] an intention to hold for the
benefit of
another (detentio or custody): see S v Adams
1986 (4) SA 882
(A) at
890G-891B; FNB of SA Limited t/a Wesbank v CSARS; FNB of SA Ltd t/a
Wesbank v Minister of Finance
[2002] ZACC 5
;
2002 (4) SA 768
(CC) para 23. In
criminal prohibitions it is unusual for ‘possession’ to
bear the first of these meanings. The question
is usually to
determine whether form [c] suffices or whether the prohibition is
confined to cases where the person holds for his
own benefit.
Sometimes the statute will make the matter clear by using the
expression ‘custody or possession’ or by
defining
‘possession’ as including custody (see S v Brick
1973 (2)
SA 571
(A) at 579H; S v Ndwalane
1995 (2) SACR 697
(A) at 702a-j). In
such cases form [c] will suffice. In other cases, it will be
necessary to determine the correct meaning by reference
to the
statutory context and the purpose of the enactment. In criminal
matters it is necessary not to confuse the mental element
of
‘possession’ (part of the actus reus) and mens rea. A
person cannot possess unwittingly, ie without the necessary
mental
element; but if it is shown that he possessed with the necessary
mental element, it may yet appear that he did not have
the necessary
mens rea (which, depending on the form of mens rea required by the
statute, might require the state to prove that
the accused knew that
his possession of the item was unlawful or that he should reasonably
have been aware thereof).
[73] In
R v Kasamula
1945 TPD 252
De Villiers AJ, with whom Grindley-Ferris J
concurred, discussed these shades of meaning in relation to
prohibited possession by
a ‘native’ of yeast. He found
that the possession contemplated by the prohibition was physical
control coupled with
an intention to obtain some benefit for oneself
(at 254):
‘
Physical
detention with the sole intention of maintaining temporary control as
agent or servant is an everyday occurrence with persons
in
subordinate positions. The Legislature could not have overlooked the
fact that housewives frequently send their native servants
to a
grocer for yeast. If the native is apprehended on his way back he
would be committing an offence if the word possession is
given a
narrower meaning than the second listed above.’
After
reviewing certain authorities, the learned judge continued as follows
(at 256-257):
‘
I
have come to the conclusion that where there is an absolute
prohibition of manufacturing, producing or distributing certain kinds
of dangerous concoctions and the Legislature, inter alia, prohibits
“possession” thereof, it uses the word possession
in the
first degree as meaning mere physical detention; so also where the
introduction or presence of certain substances into or
in certain
places is prohibited, the word “possessed” must be given
its narrowest meaning. In other cases I think the
word should be
given its ordinary meaning of natural possession, ie physical
detention or control plus an intention to exercise
that control, ie
plus the animus possidendi as those words are used by Feetham J in
Amies’ case.’
The
concluding reference in this passage is to R v Amies
1930 TPD 151
,
where Feetham J said that natural position did not require the
possessor to hold as owner – it was enough if the detentio
is
with the intention ‘of securing some benefit as against the
owner’. See also S v Nabo
1968 (4) SA 699
(E) at 700D-H; R v
Binns & Another
1961 (2) SA 104
(T) at 107F-109A.
[74] Having
regard to what I have already said concerning the meaning of the word
‘acquired’ in s 42(1)(b) read with
s 41, I consider that
the form of possession contemplated in s 42(1) is possession for
one’s own benefit. Possession of ivory
is not absolutely
prohibited. Furthermore, a person who has acquired ownership, or the
right to acquire ownership, of an item by
donation or sale would hold
the item for his own benefit. To this one must add the consideration
that possession is unlawful unless
the person found in possession has
a statement of origin as contemplated in s 41. Only the person who
holds for his own benefit
would be in possession of the statement of
origin, and the statement of origin would confirm that such person is
the one who acquired
the item in question. A person who has custody
of an item on behalf of another would not himself be in possession of
a statement
of origin. The ivory in the present case was acquired by
the appellant’s mother, and she was the one who needed to be in
possession of statements of origin in order to legitimise her
possession. If possession in s 42(1)(b) included pure custody, the
owner who has acquired ivory and has a lawful statement of origin
could never hold it through the custody of another, since that
other
person would in the nature of things not have his own statement of
origin. I do not believe that this could have been the
intention of
the lawmaker.
[75] Mr
Tarantal submitted in his supplementary note, with reference to s
39(3) and s 42(2) of the Ordinance, that the lawmaker
envisaged that
possession by an employee (ie one who holds on behalf of his
employer) is included. That is not so. Section 39 deals
with offences
relating to the hunting of wild animals, not possession. The owner of
land may permit another to hunt wild animals
on his land but
ordinarily such permission has to be given in writing in the manner
required by s 39(2). Section 39(3) states that
these formalities do
not apply where the hunter is a relative or full-time employee of the
owner. As to s 42(2), its provisions
are, I think, against the
state’s contention and if anything provide support for my view
as to the correct interpretation
of s 42(1). The sub-section reads as
follows:
‘
(2)
The provisions of subsection (1) shall not apply in any case where a
relative or full-time employee of any owner of land is
found in
possession of a wild animal or the carcase of any such wild animal
which such relative or employee has hunted on the land
of such owner
with his or her permission or which such owner has sold or donated to
such relative or employee’.
Subsection
(2) clearly envisages the possession of the wild animal or carcase by
the relative or employee for his own benefit. The
subsection mentions
three ways in which the relative or employee might have come into
possession of the wild animal or carcase:
by hunting it with the
owner’s permission or by sale or donation from the owner. In
the case of sale or donation, the relative
or employee would become
the owner of the animal or carcase. Viewed in this context, the
hunting of an animal by a relative or
employee with the owner’s
permission envisages hunting for the relative’s or employee’s
own benefit, ie on the
basis that the relative or employee may keep
what he has hunted.
[76] Mr
Tarantal also submitted in his note that an employee who has physical
control over the items in a shop exercises such control
for his own
benefit, ie in order to earn a salary, even if he simultaneously
exercises control for the benefit of the owner. I
reject that
submission. The functions which an employee carries out in the course
of discharging his duties are all performed for
the benefit of the
employer. The employee places himself at the disposal of the employer
during the agreed hours to carry out the
latter’s lawful
instructions. Provided he does so, he is entitled to the agreed wage
or salary. The amount of his salary
is not dependent upon or related
to any specific task he may happen to perform during the course of
his day. Furthermore, I can
see no rational distinction in that
regard between employment as a manager and employment in an inferior
position.
[77] It
follows that the state not only failed to prove that the appellant
‘acquired’ the ivory from another person
but also failed
to prove that he was found in ‘possession’ of the ivory
as contemplated in s 42(1).
Accomplice
liability?
[78] It
does not follow, from what I have said regarding the true
interpretation of s 42(1)(b), that a person with custody of a
wild
animal or carcase for the benefit of another can under no
circumstances be convicted of an offence under that provision. It
is
part of our common law that a person who knowingly aids and abets
another in committing an offence, whether it be a common law
or
statutory offence, may himself be convicted as an accomplice and be
subjected to the same penalties as are authorised by law
in respect
of the perpetrator of the offence. It is not necessary that the
perpetrator should actually be charged and convicted,
but it is
necessary for the state to prove beyond reasonable doubt that the
crime was perpetrated by someone whom the accused aided
and abetted.
A person may perpetrate the crime contemplated in s 42(1)(b) by
possessing a wild animal or carcase through custody
held by another
on his behalf. That other person might be an agent or employee. Such
other person could be convicted as an accomplice
and be subjected to
the punishment authorised in respect of the offence in s 42(1)(b),
provided the common law requirements for
accomplice liability were
satisfied.
[79] The
appellant’s conduct as a co-manager of the Gift Shop business
(together with Mr Joey Brown) may well have been sufficient
to
constitute the actus reus element of accomplice liability. Even if,
as the appellant claimed, he had no involvement in the part
of the
business in which ivory was bought and sold, he was, together with Mr
Joey Brown, in overall charge of the shop in his mother’s
absence. His mother had become unwell during July 2009 and did not
visit the shop at all in the two weeks prior to the seizure
of the
ivory on 17 August 2009. The appellant had an office on an upper
level which overlooked the main display areas on the ground
floor and
from where, he said, he could watch what was going on in the shop and
keep an eye on the staff. According to Mrs Marcus’
IRP5
certificates issued in respect of her employees (documents which the
appellant adduced to demonstrate that the business belonged
to her
and that he was only an employee), the appellant was by some margin
the highest-paid employee in the business. In the 2009
tax year his
gross annual remuneration was R147 346. Mr Joey Brown’s annual
remuneration, by contrast, was R50 400.
[80] However,
the appellant was not charged as an accomplice to crimes committed by
his mother. Where the state relies on the doctrine
of common purpose
in relation to two or more accused persons, it may be legitimate for
the charge sheet to be non-specific in regard
to perpetration. In
such a case, all of the accused could notionally be perpetrators of
the offence, ie there could be multiple
perpetrators. In the present
case, however, only the person who acquired the ivory and possessed
it for his or her own benefit
could be a perpetrator of the offence.
In other words, there could only be one perpetrator; anyone else
charged in respect of the
offence could only be liable as an
accomplice. At least in the present circumstances, I do not think it
would be in accordance
with the appellant’s right to a fair
trial as guaranteed by s 35 of the Constitution to allow the state to
sustain his conviction
on the basis that he was an accomplice.
[81] Section
84(1) of the CPA provides that a charge shall set forth the relevant
offence ‘in such manner and with such particulars
as to the
time and place at which the offence is alleged to have been committed
and the person, if any, against whom and the property,
if any, in
respect of which the offence is alleged to have been committed, as
may be reasonably sufficient to inform the accused
of the nature of
the charge’. In relation to counts 1, 3 and 5, the charge sheet
was specific in alleging that the appellant
was in possession of the
ivory and that he had obtained it from another person without being
in possession of statements of origin.
In other words, he was alleged
to be the perpetrator of the statutory offences. The state did not
allege or set out to prove that
his mother had possessed the ivory
and obtained it from another person, nor did the state seek to prove
that the appellant had
knowingly assisted her in the commission of
the statutory offence created by s 42(1)(b). As will appear
hereunder, there is a difference
between the mens rea which the state
would need to allege and prove in respect of the perpetrator and an
accomplice respectively.
The form of mens rea needed for accomplice
liability (knowingly assisting another to perpetrate the crime) was
not averred in the
charge sheet. The state did not contend, either at
the trial or on appeal, that the appellant should be convicted as an
accomplice,
though when in the appeal the question was asked from the
bench Mr Tarantal unsurprisingly responded that the appellant could
be
convicted on that basis. The court a quo was at no stage
requested, in the light of the evidence, to amend the charge in
accordance
with s 86 of the CPA.
[82] In
the analogous case of vicarious liability, it has been held
impermissible for the state to obtain a conviction against an
accused
on the basis that he is in criminal law vicariously responsible for a
crime perpetrated by another where the charge alleges
that the
accused himself perpetrated the offence (see S v Dalvie
1968 (2) SA
635
(C) at 637B-H and cases there cited; S v Sayed
1981 (1) SA 982
(C) at 983F-G). In De Wet & Swanepoel Strafreg 4th Ed at 199-200
the learned authors say, in their usual forthright fashion,
that a
charge against a person as an accomplice (as distinct from a
co-perpetrator) should specifically allege that another person
perpetrated the crime and that the accused knowingly aided and
abetted the perpetration of the crime.
[83] In
any event, and on the assumption that the state proved beyond
reasonable doubt that the late Mrs Marcus acquired all the
ivory from
other persons and that she had the necessary mens rea to be convicted
as a perpetrator of the offence, I do not think
that the state proved
beyond reasonable doubt that the appellant had the necessary mens rea
for accomplice liability. It is to
the aspect of mens rea that I now
turn.
Section
42(1)(b) – mens rea
[84] Counsel
did not address, in their heads of argument, the form of mens rea, if
any, required for a successful conviction of
a contravention of s
42(1)(b). The presumption is naturally against strict liability (see
S v Arenstein
1964 (1) SA 361
(A) at 365C) and there is no reason, in
relation to this statutory provision, to depart from that
presumption. On the other hand,
the purposes of the legislation might
be thwarted if one insisted on fault in the form of dolus. I think it
suffices if the state
proves beyond reasonable doubt that the
perpetrator negligently contravened the provision (cf S v Botes
1967
(2) SA 533
(N) at 535A-F). As noted, the requirement of fault must
not be confused with the mental element of possession. A person
cannot
‘possess’ something if he does not know that he
possesses it (for example, an item placed in his house without his
knowledge). If he knowingly possesses the item, he will be guilty of
the offence if he was negligent in failing to comply with the
requirements laid down by the law for lawful possession.
[85] In
the present case, the perpetrator of the offence, if an offence was
committed, was Mrs Marcus. If she had been charged,
it would have
sufficed for the state to prove beyond reasonable doubt that she had
fault in the form of negligence. It is probable,
given that she had
been buying and selling ivory for many years and was in possession of
a very large quantity of ivory, that her
failure to be aware of the
legal requirements for possessing and selling ivory or her failure to
be in possession of the necessary
documents was negligent.
[86] The
case against the appellant, by contrast (if it is open to the state
at all), has to be based on accomplice liability. One
cannot be an
unwitting or negligent accomplice. Accomplice liability is
constituted by knowingly aiding and abetting another person
in the
perpetration of a crime. Fault in the form of dolus must be proved by
the state (see Burchell Principles of Criminal Law
3rd Ed at 604-605;
Snyman Criminal Law 5th Ed at 276). Where the perpetrator of a
statutory crime can only avoid criminal liability
by proving that he
was in possession of a permit or by proving some or other available
ground of exemption, the state does not
need to allege and prove that
the perpetrator lacked the permit or did not fall within the
exemption; the onus rests on the accused
perpetrator to prove on a
balance of probability that he had the permit or fell within the
exemption. This follows from the provisions
of s 90 and s 250 of the
CPA (and see also S v Tshwape & Another
1964 (4) SA 327
(C) at
332B-G per Corbett J as he then was). However, this does not assist
the state in obtaining a conviction against an alleged
accomplice. In
relation to the perpetrator, the critical question is whether the
permit existed or whether he fell within the exemption;
but in
relation to the accomplice, the critical question is whether or not
he had knowledge of the absence of the permit or of
the fact that the
perpetrator did not fall within the exemption. That this is so
appears from various authorities which include
Tshwape supra at
332H-334E and S v Van Wyk
1969 (1) SA 37
(C) at 43B-D. It does not
suffice for the state to prove that the accomplice was negligent in
failing to appreciate the illegality
of the perpetrator’s
conduct.
[87] The
question then arises, on the assumption that a case based on
accomplice liability is open to the state at all, whether
the state
proved beyond reasonable doubt that the appellant assisted his mother
in her possession of the ivory, knowing that her
possession was
unlawful because she did not have statements of origin. I do not
think that this was proved. The appellant’s
evidence that his
mother had built up a stock of ivory over many years which she
purchased (so he believed) from reputable dealers
cannot be rejected
as not reasonably possibly true. There was some documentary and other
evidence to support that version. It cannot
be said beyond reasonable
doubt that the appellant could not genuinely have believed that his
mother lawfully acquired the ivory,
even if he was negligent in that
belief. According to the appellant, she told him after learning of
the seizure of the ivory that
as soon as she recovered she would
speak to the police to sort the matter out but she died before she
could do so. It was not shown
that the appellant had a firm grasp of
the requirements of the Ordinance or of its application to the ivory
items in the shop (a
matter which turns inter alia on the
interpretation of ‘carcase’). He testified that it was
only after he took over
the shop subsequent to his mother’s
death that he ‘went and did the research and found out exactly
how everything works,
because I had to take over all the
administration’. What was put to him by the prosecutor is
that, as a co-manager of the
shop, there had been a duty on him to
acquire sufficient knowledge concerning the legal requirements for
possessing and selling
ivory. This goes to negligence, not dolus.
There is even the possibility that his mother acquired some of the
ivory before the
Ordinance came into force on 1 September 1975 and
that she thus might legitimately not have had statements of origin
for that ivory.
She had been buying and selling ivory since the 1950s
and also received a consignment of ivory from her cousin in 1975 when
their
business association was dissolved. There was no evidence at
the criminal trial that the ivory or the majority of it was of recent
origin.
Conclusion
on counts 1, 3 and 5
[88] For
the reasons stated above, I consider that the appellant should have
been acquitted on counts 1, 3 and 5.
Section
46(c) – ‘sale’ of the ivory
[89] The
charges based on s 46(c) of the Ordinance related to the ivory found
at the shop and at the appellant’s home. The
bulk of the ivory
at the shop was exposed for sale. That falls within the definition of
‘sell’ in s 2. Some of the
ivory at the shop was packed
in boxes but it was not suggested that such ivory was not possessed
for purposes of sale. The same
is true for the ivory found in Mrs
Marcus’ work room at her home. Possession for purposes of sale
falls within the definition
of ‘sell’.
[90] However,
the question again arises as to the mental element of the physical
acts referred to in the definition of ‘sell’.
I must
emphasise that I am not here referring to mens rea but to the mental
element of acts such as ‘possession’, ‘expose
(for
sale)’ and so forth. In my opinion, and for reasons similar to
those discussed in relation to s 42(1)(b), the acts are
confined to
those performed by a person for his or her own benefit. The person
must be authorised by a permit to perform those
acts. In the case of
a curio shop, the permit would be issued to the proprietor. It would
be absurd to require each employee in
such a shop to have a permit. I
see no reason to give the word ‘possession’, where it
features in the definition of
‘sell’, a different meaning
to that word in s 42(1). Furthermore, acts such as selling,
exchanging, offering, advertising
or exposing for sale refer in their
ordinary meaning to the party concluding or proposing to conclude the
transaction. When an
employee in a shop assists a customer, one would
not say that the employee is selling the item; the item is sold by
the employer.
The person who, as at 17 August 2009, possessed the
ivory for sale and exposed it for sale at the shop was Mrs Marcus.
Her conduct
in so doing would have been lawful if she had been in
possession of the permit required by s 46(c). Her employees, which
included
the appellant, did not require a permit because they were
not the persons selling the ivory.
[91] As
in the case of s 42(1)(b), an employee could notionally be convicted
as an accomplice to the perpetration of the offence
created by s
46(c). However, and as with counts 1, 3 and 5, the appellant was not,
in relation to counts 2 and 4, charged as an
accomplice. The
allegation was that he himself possessed the ivory for sale without
being in possession of the requisite permit.
For reasons already
explained, I do not think it would be fair to permit the state to
sustain the conviction on the basis of accomplice
liability.
[92] Even
if it were open to the state to rely on accomplice liability, the
question of mens rea would again rear its head. Negligence
would
probably suffice for a conviction in terms of s 46(c) against the
perpetrator of the offence. It appears that there was no
permit to
sell the ivory. Mrs Marcus may very well have been negligent in
failing to obtain a permit or to appreciate that she
needed one.
However, the appellant could only be convicted as an accomplice if he
knew that a permit was required and that his
mother did not have a
permit. The appellant’s evidence was that he thought his mother
had whatever documentation was required
in order to possess and sell
the ivory. There were noticeboards on the display shelves stating
that the ivory could not be bought
for export. The appellant
testified that he understood that ivory could not be exported but
that it could be sold domestically.
The appellant also said that he
had no involvement in the buying and selling of ivory; it was his
mother and Joey Brown who dealt
with that side of the business. While
I have my reservations about the appellant’s professed
ignorance, I do not think it
is possible to find beyond reasonable
doubt that he was aware of the requirements of s 46(c) and was aware
that a permit was required
for the domestic sale of the ivory items
at the shop. The state did not call Joey Brown or any other employee
as witnesses. Indeed,
there is no indication that the police or the
prosecution investigated the appellant’s assertion that the
business belonged
to his mother or what the appellant’s precise
role at the shop was.
[93]
For these reasons, a conviction on counts 2 and 4 cannot be
sustained.
Conclusion
[94] In
the light of the conclusions reached above it is unnecessary to
consider the question of sentence.
[95] I
would thus uphold the appeal and set aside all the convictions and
the resultant sentences.
GOLIATH
J:
[96] I
concur. The appeal is upheld. The convictions of 29 July 2011 and the
sentences of 24 April 2012 are set aside.
LE
GRANGE J:
[97] I
concur.
APPEARANCES
For
Appellant: Mr R Liddell
Instructed
by: Liddell Weeber & Van der Merwe Inc
52
Broad Road
Wynberg
For
Respondent: Mr W Tarantal
Office
of the DPP, Western Cape
Cape
Town