The accused were charged with the unlawful exportation of controlled wildlife products:14 rhino horns on the first count and a leopard skin on the second count, as well as money laundering on count 3. They were discharged on count 3 but convicted on count 1 and 2 and sentenced to 14 years imprisonment, 30 months and 28 months suspended for 5 years. The 4th appellant was discharged on all counts on the basis that he was not present when the appellants were arrested. The appellants appealed against their conviction and sentence on the basis that the trial court did not assess all the evidence placed before it and that it the convictions were based on suspicions. Further, that the 14 years imprisonment was inappropriate and startling shocking. The court considered the evidence and the manner in which it was obtained. The court found that the manner in which the evidence was obtained at the airport, and then subsequently discovered through the means of an investigation, was not unjust. The court looked at CCTV footage, as well as photographs, and questioned the accused at length and held that there had been continuous possession and control of the unlawful wildlife products. Further, the fact that the 4th appellant was not present at the airport cannot extricate him from the blame. The appeal court found that the court below erred in not convicting the 4th appellant. The court further considered the definition of “deal in” and found that the appellants had either bought or bartered the rhino horns and leopard skin in order to acquire possession thereof. Thus, they were dealing in unlawful products, with the purpose to export same. It is clear form the evidence that the all 4 of the appellants were acting jointly in the commission of the offence. Having regard to the sentence, the court found that court below considered all the relevant mitigating factors, such as the accused being first time offenders, personal circumstances, the period that they had spent in custody etc. The court found that Rhino’s are peaceful animals, and when hunters poach them, they leave their carcasses to rot. Thus, the only purpose of being found in possession thereof is to launder and to bring the tourism industry to its knees.
Country
Court
Type of court
Seat of court
Windhoek
Court jurisdiction
Date of opinion
2019
Abstract
Language of document
English
Reference number
(CA 18/2017) [2019] NAHCMD 94
Charges
Unlawful exportation of controlled wildlife products, in contravention of Section 4(1)(e) read with Schedule 1 and with Sections 1, 4(2)(b) of the Controlled Wildlife Products and Trade Act 9 of 2008, and as read with Section 18 of the Riotous Assemblies Act, 15 of 1956: 14 rhino horns on the first count and a leopard skin on the second count. On count 3 the accused were charged with money laundering: acquisition of proceeds of unlawful activities in contravention of Section 6(a) read with Sections 1, 8 and 11 of the Prevention of Organized Crime Act No. 29 of 2004.
Species
Transnational
Yes
Decision
The court considered the severity of the case and found that the court below erred in not convicting them on all counts and imposing a harsher sentence. Thus, the court dismissed the appellants appeal and found them guilty on count 3. Further, the court set aside the sentence of the court below and imposed a sentence of 20 years imprisonment, of which 5 years is suspended for a period of 5 years on condition that the appellants are not convicted of another offence.
Appealed
Yes
Penalty
Penalty Imprisonment: 20 years Fine: Community service: Probation: Other: Effect of penalty Suspended: Backdated: 30 September 2016
Court cases cited
S v Mgedezi 1989 (1) SA 687
S v Shabalala 1966 (2) SA 297
Legislation cited
Controlled Wildlife Products and Trade Act, No. 9 of 2008
Prevention of Organized Crime Act, No. 29 of 2004
The Riotous Assemblies Act, No.15 of 1956
Text and analysis