Rex v Maseko (03/ 2015) [2015] SZHC 47 (23 March 2015);

 

                                     

 

 

 

 

IN THE HIGH COURT OF SWAZILAND

JUDGMENT

HELD AT MBABANE                                                REVIEW CASE NO. 03/2015

In the matter between:

REX                                                                    

VS

SICELO MASEKO                                           

Neutral citation:            Rex v Sicelo Maseko  (03/15) [2014] SZHC 47 (23 March 2015)

 

CORAM                                                              MAMBA J

CONSIDERED :                                                 23 MARCH 2015

DELIVERED:                                                    23 MARCH 2015                            

[1]      Criminal law and Procedure – on a conviction on a charge of being found in unlawful possession of Game in contravention of section 12 (1) of the Game Act 51 of 1953 – court enjoined to order accused to replace game or compensate for its full value per section 26(3) of the Act.  This is in addition to sentence.

 

[2]        Criminal Procedure – contravention of section 12(1) of the Game Act – compensation only required where accused fails to replace game for which he has been convicted.

 

[1]     The accused herein, together with Eric Nhlabatsi, made his first appearance before the Mbabane Magistrate’s Court on 22 September 2014.  They were facing a charge of contravening section 12 (1) as read with section 26 (1) of the Game Act 51 of 1953 [as amended]’ in that they had been found in unlawful possession of a grey duiker, which is a common game as defined in the said Act.  (Section 26 (1) is of course the penalty section and thus, at least, notionally, does not of itself constitute an offence and it is perhaps not correct to allege a contravention thereof in the charge sheet.  That said, I do understand what the crown wanted to convey to the accused; and the court in making this allegation in the charge sheet; namely that the penalty for a contravention of section 12 (1) is to be found in section 26 (1) of the Act).

 

[2]     Both Accused persons had their rights to legal representation explained to them and each elected to conduct his own defence.

 

[3]     On being arraigned on 6 October, 2014, the accused herein pleaded guilty to the charge whilst his co-accused pleaded not guilty.  There was no separation of trials and the trial continued with the crown tendering the evidence of only one witness in the form of 5372 Constable B. Dlamini.

 

[4]     I do not find it necessary in this short judgment to narrate the evidence by either the crown or the accused person herein.  Suffice to say that at the end of the defence case the accused was found guilty as charged and his co-accused was acquitted and discharged.  The evidence led, fully justified this verdict in my judgment and there is no reason for this Court to interfere therewith.  It is hereby confirmed.

 

[5]     The accused was sentenced to pay a fine of E2000 failing which to serve a term of 2 years of imprisonment.  His warrant of committal to jail was signed by the presiding officer on the date of his conviction and sentence.  However, it would appear that he later, on 8 October 2014 paid the fine of E2000.00 and was released.  He had spent at least two days in jail serving sentence and the amount payable as a fine should have been proportionally adjusted and reduced to take this period into account or consideration.  That adjustment amounts to E2000/730 x 2.  There is no explanation on the record why this adjustment was never made.  That, however, may be viewed as a triviality or quibble.

 

[6]     Section 26 (3) of the Game Act (as amended) provides in mandatory or peremptory terms as follows:

‘(3) In addition to any penalties imposed under sub section (1), any person who contravenes the provisions of section 6(2) or 12(1), shall be required by the Court to either replace the Game in respect of which the offence is committed or to compensate fully for the replacement value specified in relation to such game in the First, Second or Third Schedule, failing which such person shall be liable to a further term of imprisonment of not less than one year but not exceeding three years.’

These provisions are the same as those stated in section 8 (6) of the Act.  The learned trial magistrate did not at all consider these provisions in his judgment after passing sentence.  He only dealt with the provisions of subsection (1).  He should have given effect to these provisions though as these are mandatory.

 

[7]     A grey duiker is listed as common game in the Third Schedule and its replacement value is E100.00.

 

[8]     In Rex v Dumsani Sofela Nhlabatsi (42/13) [2014] SZHC 03 (03 February 2014), this court stated as follows:

‘[5]    Section 8 (4) of the Act prohibits and criminalises being in possession of a trophy or Game without a permit to do so or otherwise than in accordance with the conditions set out in such permit.  Section 8 (6) of the Act on the other hand provides that ‘any person found guilty of an offence under sub section (1), (3) or (4) [of this section] shall be required by the court in addition to any penalty imposed under that subsection, to either replace that game or to compensate fully for the replacement value specified in the first, second or third schedule in relation to that Game, failing which such person shall be liable to a further period of imprisonment of not less than two years but not exceeding six years’. (Underlining and emphasis added by me).

 

[6]     From the above, it is clear that after sentencing a convict for a contravention of section 8(4) of the Act, the court is enjoined to go further and consider the issue of replacement or compensation for the value of the game for which the accused or convict has been convicted.  In the instant case, this was never done and this must be corrected.  (See the judgment of this court in Rex v Dumsane Gamedze and two others, Review Case No. 148/05 (unreported), delivered on 6^th February 2006).

 

[7]     The issue of replacement or compensation was considered by Sapire CJ in R v Peter McIntyre and others, case number 43/2001 (yet unreported) judgment delivered on 11^th March 2002.  There the learned Chief Justice stated as follows:

“The order envisaged is either to replace “that game or to compensate fully for its replacement value specified in the schedule.

“that game” means the game which is the res delictae of the offences. Game includes any part of such Game.  In this case as we have seen the res delictae are parts of the animal namely its horns.   No specific compensation amount is referred to in the schedule relating to the horns alone. The order I must make therefore is that the horns must be replaced.  Only if this cannot be done does the question of compensation arise.

The use of the words “replace” and “compensate” seem inappropriate in the circumstances such as the present where

1. the owner of the horns cannot be established (in fact it is probably one of the accused persons who is the owner of the horns).
2. There is no evidence as to the property where “the game” may have been hunted and in fact there is no evidence that it was in fact hunted.  The accused are not charged with having hunted the game.
3. The owner of the game or property cannot be determined.
4. No evidence of any loss which has to be made good by replacement or compensation has been demonstrated. 

The provisions of the section in such circumstances require that the replacement or compensation shall be made to the Government.  There is nothing to suggest that the Government has lost anything which can be replaced or for which it has to be compensated.”

          That pronouncement constitutes the law on the issue in this jurisdiction.

 

[8]  In the present case, there was no evidence that the accused had hunted and killed a bushbuck or that anyone had lost a bushbuck or its horn-the trophy for which the accused was convicted.  However, there was evidence that the accused had no permit to possess that trophy or horn.  So, perhaps notionally, someone unknown to the crown has lost that horn.  The loss of a horn of a bushbuck is of course not, at least on the available evidence, the same as a loss of a bushbuck.

 

[9]  I have already stated that the learned senior Magistrate who dealt with the matter in the court a quo in now deceased and thus cannot have any further say in this matter.  I see no useful purpose to be served by referring this matter to the incumbent learned senior Magistrate to deal with it in terms of section 291 (bis) of our Criminal Procedure and Evidence Act 67 of 1938.  This court is, in the circumstances of this case, at large to make the correction or requisite order herein.  The accused is hereby ordered to replace the trophy which is the corpus delicti herein.  As in the Peter McIntyre case (supra), I order that the horn in question be and is hereby forfeited to the Government as the required replacement.  In the result, the issue of compensation does not arise.’

These observations are apposite in this case and are hereby repeated.  The learned trial magistrate in this case is of course still in office.

 

[9]     In the instant case, the grey duiker (impunzi) in question was confiscated by the police from the accused.  Only its skull and hide were submitted to court as exhibits.  There was no evidence regarding the ownership of the grey duiker which is the corpus delicti herein.  There was further no evidence as to what the police did with its carcass.  The police as members of the law enforcement apparatus, are agents and functionaries of the Government and were acting as such in this case.  For all we know, the carcass, hide and skull of the corpus delicti herein is in their custody.  It is accordingly ordered to be forfeited to the Swaziland Government as the required replacement in terms of section 26(3) of the Game Act.

              

 

 

          MAMBA J