1
IN
THE HIGH COURT OF SWAZILAND
REVIEW
NO.286/02
LUBOMBO
CASE NO. M8/02
In
the matter between:
REX
VS
ZWELI
MAHLOBO AND OTHERS
CORAM: ANNANDALE
J
JUDGMENT
ON REVIEW
25th
NOVEMBER 2002
Since
late August 2002 when this matter first came before me on automatic
review, it has gone back and forth between the High Court and the
Magistrate's court at Simunye to have plain straightforward and
uncomplicated queries attended to. This followed on the conviction in
June 2002 and sentences of the accused who illegally hunted a zebra
in contravention of Section 12(1) of the amended Game Act of 1953
(Act 5 of 1993). The first accused alone was also convicted of the
illegal possession of ammunition for a shotgun, though not also of
the shotgun itself.
2
The
inordinately long delay with the review proceedings was caused by a
number of factors, the first being that instead of the statutory
period of "...not later than one week next after the
determination of the case..." (Section 80(2) of the Magistrates
Courts Act 1938) (my underlining) the matter took from the 12th June
2002 until the 22nd August 2002 to be filed with the Registrar. No
reasons for the delay were given.
Following
my written queries, which were most inaccurately typed, the
magistrates reply was eventually returned to me last week, the 21st
November. After I queried the inordinately long delay in the middle
of October a period a five months to have a matter dealt with on
review is not acceptable and in conflict with the interests of
justice. The Registrar of the High Court is directed to ensure that
the statutory limits of Section 80(2) of the Act be complied with by
all magistrates courts. To this end, the Judges of the High Court has
already made significant concessions pertaining to the presentation
of proceedings in that as an interim measure, the whole record need
not be typed.
The
penalty clause of Section 12(1) of the Game Act is contained in
Section 26. In addition to a fine, imprisonment or both, Section
26(3) reads:-
"In
addition to any penalties imposed under sub-section (1), any person
who contravenes the provisions of Section 6(2) of 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".
The
zebra which was poached by the accused persons as subject matter of
the first count is listed in the Third Schedule of the Act as having
a common name of "Burchells Zebra", scientific name of
"Equus burrchelii" and a replacement value of E2 000".
3
The
record of proceedings that was submitted on review is clearly
incomplete. There is no recording of events that the learned
magistrate refers to in his answers.
"When
the matter was registered in court for the first appearance the zebra
carcass was brought in and the owner which is IYISIS was given the
whole carcass and only required to preserve hooves and skin which
were brought as exhibits in the trial. This was reflected in the
police exhibit register. In short, the carcass was returned to the
owner of the IYSIS. Therefore, (the) court could not have enriched
the owner twice by ordering compensation".
Court
records must be complete and accurately reflect all events that occur
in any particular criminal trial. At minimum, one would have expected
to have a recording of the fact that at the first appearance of the
accused in court, the exhibit (a zebra carcass) was shown to the
presiding officer and that its owner applied for its release to him
and whether either the ownership or the release is contested by the
accused or not - application of the audi alteram partem principle.
The police exhibit register does not form part of the proceedings
sent on review, since the learned magistrate explains that the
release under "...was reflected in the police exhibit register".
Furthermore,
the reply does not in any way assist in solving the queries. The
provisions of Section 26(4) of the Game Act are mandatory. It does
not even provide for the holding of an enquiry as to whether the
accused is to be ordered to compensate/replace, or not. It is not a
discretionary proviso. For the learned magistrate to state that no
compensation or replacement is to be ordered because the owner cannot
be twice enriched shows a lack of grasping that it goes against the
provisions of the Act. Tt also is not logical to state that the owner
of the game will be "twice enriched" where his game has
been poached as in the present case. The owner if the animal is not
replaced is a misdirection by the court a quo which requires
rectification on review.
4
A
further aspect that was raised in the query sent to the learned
magistrate, which admittedly was very badly read and typed in the
Registrar's office and which may well have contributed to the
confusion, is the aspect of the shotgun.
According
to the evidence heard at the trial, PW2, 2122 Sergeant H. Dlamini
testified that the first accused produced a number of incriminating
exhibits, inter alia a shotgun and some nine rounds of ammunition for
it. Somehow he was not charged for the illegal possession of the
12-bore shotgun itself, as he "failed to produce a licence for
the items". Nevertheless, apart from the zebra hooves and skin
that he handed in as exhibits, he also handed in the nine rounds of
ammunition for the shotgun. The trial court saw fit to have all the
items this witness handed in, some seventeen items in all, marked
"collectively as exhibit 1".
Such
a practise is unsound and confusing. The learned magistrate is to
appraise himself of the proper manner in which courts exhibits are to
be numbered. The failure to have done so may partly explain the terse
reply which reads:- "3 and 4. It is not clear as to which
enquiry is being referred to since the law is just straightforward.
The exhibits in any conviction shall be forfeited to government by
order of court that had been done. There is an order of disposal of
exhibits in the record". To this end, the last few words of the
court reads:- "exhibits forfeited to the state".
Should
the learned magistrate have applied his mind to the content of the
query instead of going on his defence and repeating the obvious,
quoting the incorrect and incomplete court record, he may well have
assisted in having his mistakes corrected and learning in the
process. It is to this end that he was asked to state if any enquiry
was held in respect of the forfeiture of the shotgun (having regard
to Section 12(4) of the Game Act).
5
Collective
exhibit number one, item number 2, is a 12 bore shotgun with a stated
serial number. Quite possibly, it was used to commit an offence, but
not conclusively so, which is borne out by the fact that the
prosecution did not charge any of the four accused persons for its
illegal possession. The first accused was nevertheless charged with
contravening Section 11(2) of the Arms and Ammunition Act 24 of 1964,
arising from both wrongfully and unlawfully possessing a round of 12
bore ammunition.
As
formulated, the charge is defective and objectionable. It does not
follow the wording of the Act and fails to state one of the
essentialia of the offence, namely that such ammunition is not to be
possessed "...unless he is the holder of a current permit or
licence to possess the firearm for which such ammunition is intended,
or is otherwise permitted to possess such ammunition under this Act".
The
italicised words are conspicuously absent in the wording of count 3.
Apparently the defect was not noted in the trial court and no mention
of it was included, in the reasons for judgment. It was neither
rectified nor condoned. An accused person may very well be prejudiced
in his defence in the absence of such a necessary allegation.
Having
regard to the fact that the first accused, who was charged with
possession of the ammunition, was not also charged with unlawful
possession of the shotgun from which the 12 bore cartridges could
have been fired, leads to the inescapable conclusion that the shotgun
would have had to be properly licenced to himself. If not, he would
have been charged. Yet, the police sergeant testified that he was
asked but failed to produce a licence "for the items".
6
Although
the abovementioned defect in count 3 is serious enough to readily
justify it being set aside, I am constrained not to do so, even if
only on the pretext that "technicalities" should not
prevail in this jurisdiction as elsewhere in the world. It is with
constrained reluctance that the defect is condoned and the conviction
in count 3 sustained.
Section
12(4) of the Game Act requires forfeiture of any firearm and
ammunition which was in possession of the offender at the time of the
commission of the offence. Disposal by public auction is prescribed
in the Act. There is no evidence that the firearm was stolen
beforehand and it properly reported to the police. It was accordingly
forfeited to the Government (sic: State) which forfeiture is also
confirmed, despite the absence of a proper enquiry in which the
provisos have been explained to the accused inorder to afford him the
opportunity if being heard to the contrary if so desired.
It
is ordered on Review that the convictions and sentences of all the
accused persons in case number M8/2002 be confirmed on review. In
addition to the sentences imposed in count 1, it is further ordered,
in terms of Section 26(3) read with Section 12(11) and the Third
Schedule of the (amended) Game Act, 1953 (Act 51 of 1953) that each
of the accused jointly and severally, the one to pay the other be
absolved, be ordered to either forthwith replace the zebra mentioned
in count 1 to its lawful owner, Inyoni Yami Swaziland Irrigation
Scheme, or if not done so within thirty days hereof fully compensate
the owner in the amount of E2 000 (two thousand Emalangeni) failing
which the accused shall be liable to a further term of imprisonment
of one year.
7
The
record is returned herewith.
J.P.
ANNANDALE.
Judge
