The appellant was stopped by the police, as he drove away from the scene and was brought back to the scene. He was found in possession of keys to specific Units and cell phones. The Manageress testified that Unit 12 was leased by the appellant. On one of the seized cell phones from the appellant, photos of the whole elephant tusks were found, which were enhanced by the forensic laboratory expert, and had certain inscriptions on them. Appellant’s finger and palm prints were found on both Units 12 and 349 boxes. Mr Paul Geldenhuys had noticed during the weighing process of each ivory item in the photo from the seized cell phones that markings were similar on certain pieces cut up. He had noted that the whole tusks seen on the photos from the appellant’s cell phone had been locally cut, a day, two or three before the arrest date. The court was called upon to decide whether the court a quo was correct in convicting the appellant on both counts or whether this amounted to splitting the charges; whether the fine of R 5 million imposed exceeded the court’s monetary jurisdiction; whether the sentence of two years imprisonment on count 3 was too harsh; and whether the conviction and sentence should be in any event upheld. The court held that the court a quo was correct save for the issue of sentencing. Thus, the appeal succeeded in part and the accused was sentenced to 7 years.
Country
Court
Type of court
Seat of court
Cape Town
Court jurisdiction
Date of opinion
2016
Abstract
Language of document
English
Reference number
[2016] ZAWCHC 64
Charges
Contravention of section 42(1)(b) of the Nature and Environmental Conservation Ordinance 19 of 1974 and section 44(2) of the Marine Living Resources Act 18 of 1998.
Species
Transnational
Yes
Decision
The court found that there is no basis to interfere with the sentence of 7 years direct imprisonment imposed in respect of the ivory counts. Even though there was a splitting of charges, counsel for the appellant conceded that the quantity of ivory on count 2 was insignificant when compared to the quantity on count 1. Furthermore the trial court took both counts as one for purposes of sentence. As far as the amount of a fine was concerned, it was the view of the court that, having regard to the particular circumstances of the matter, the most severe fine that a regional court can impose is appropriate, which would be R300 000. Thus, the sentence in respect of count 1 was set aside and substituted with the following: ”The Accused is sentenced to 7 (seven) years direct imprisonment, as well as to a fine of R300 000 (three hundred thousand rands), and failing payment of such fine, 24 (twenty four) months imprisonment in terms of section 287(1) of Act 51 of 1977. The sentences shall not run concurrently and are antedated to 5 September 2014 in terms of section 282 of Act 51 of 1977.” The court held that the court a quo was correct save for the issue of sentencing. Thus, the appeal succeeded in part and the accused was sentenced to 7 years.
Appealed
Yes
Penalty
Imprisonment:7 years Fine: R 300 000
Court cases cited
S v Kok 2015 (2) SACR 637 (WCC)
S v B M 2014 (2) SACR 23 (SCA)
S v Agliotti 2012 (1) SACR 559 (GSJ)
Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA)
Veldman v DPP, Witwatersrand Local Division 2006 (2) SACR (CC)
S v Sejaphale 2000 (1) SACR 603 (T)
S v Cloete 1999 (2) SACR 137 (C)
S v Dlamini and Others [1999] ZACC 8; 1999 (2) SACR 51 (CC)
S v Ramavhale 1996 (1) SACR 639 (A)
S v Nomzaza 1996 (2) SACR 14 (A)