On 17 – 18 June 2016 at Bucklands Farm, in the district of Albany, in the course of which a white rhino known as Cambell, belonging to one Ian Steward, was darted with a tranquilizer gun and its horn removed, resulting in the death of the rhino. The police were working on Operation Full Moon as Rhino poaching was rife. The accused were charged on numerous counts including rhino poaching and for being in unlawful possession of rhino horn as they were alleged to be involved in a syndicate of Rhino poaching in KwaZulu Natal and Eastern Cape, although for some time no concrete evidence was available.
In this trial-within-a-trial, the three accused were charged with numerous counts together with certain alternatives thereto, to all of which they pleaded not guilty. In terms of the Schedule to the indictment as amended a further nine incidents were alleged to have occurred at various other farms and reserves in the districts of Jansenville, Graaff Reinet, Cradock and Great Fish River Reserve.
Country
Territorial subdivision
Court
Type of court
Seat of court
Grahamstown
Court jurisdiction
Date of opinion
2018
Abstract
Language of document
English
Reference number
[2018] ZAECGHC 123
Charges
On count 1 in respect of this incident with theft of the horn. The accused are charged on count 1 in respect of this incident with theft of the horn. On count 2 they are charged with a contravention of section 57(1) of the National Environmental Management; Biodiversity Act, 10 of 2004 (committing a restricted activity involving a protected species without a permit) in that at the said time and place they cut off and had in their possession the said rhino horn without a permit issued in terms of Chapter 7 of the Act. On count 3, they were charged with a contravention of section 29(k) of the Cape Provincial Ordinance on Nature and Environmental Conservation, 19 of 1974, (illegal hunting of wild animals by means of a device injecting an intoxicating or narcotic agent into the said rhino without holding a permit authorising them to hunt by such means). On count 4, they were charged with a contravention of section 22A(1) of the Medicines and Related Substances Act, 101 of 1965 (illegal possession of a schedule 6 medicine or substance) in that at the same time and place they had in their possession a scheduled substance, namely M99 (Etorfine) and/or Thiafentanil listed in Schedule 6 of the Act, other than in accordance with the prescribed conditions. On count 5, they were charged with a contravention of section 90 of the Firearms Control Act, 60 of 2000, read with section 250 of the Criminal Procedure Act, 51 of 1977 (unlawful possession of ammunition) in that they unlawfully possessed an unknown quantity of .22 calibre ammunition while they were not the holders of valid licences in respect of firearms capable of discharging such ammunition or the holders of permits or authorisations to possess such ammunition.
Species
Transnational
No
Decision
The court reasoned the police acted in good faith in obtaining evidence. Thus, the evidence which the State sought to lead relating to the finding in chalet no 8 at Makana resort of the items referred to in paragraph 6 of Exhibit G was admissible.
Appealed
No
Court cases cited
S v Gumede 2017 (1) SACR 253 (SCA)
Tinto v Minister of Police 2014 (1) SACR 267 (ECG)
S v Lachman 2010 (2) SACR 52 (SCA); and S v Pillay supra
Zuko v S 2009 [4] All SA 89 (E) at para 12
Mtembu v S [2008] 3 All SA 159 (SCA)
S v Tandwa and Others 2008 (1) SACR 613 (SCA)
Thint (Pty) Ltd v National Director of Public Prosecutions and Others; Zuma v National Director of Public Prosecutions and Others [2008] ZACC 13; 2008 (2) SACR 421 (CC)
S v Hena and Another 2006 (2) SACR 33 (SE) at 41e – f.
S v Pillay and Others 2004 (2) SACR 419 (SCA)
Legislation cited
National Environmental Management; Biodiversity Act, 10 of 2004
Firearms Control Act, No. 60 of 2000
Criminal Procedure Act, No. 51 of 1977
Cape Provincial Ordinance on Nature and Environmental Conservation, No. 19 of 1974
Medicines and Related Substances Act, No. 101 of 1965