SWAZILAND
HIGH COURT
REX
Vs
PETER
MCINTYRE
1st
Respondent
PATRICK
MKHALIPHI
2nd
Respondent
AARON
VILANE
3rd
Respondent
NKOSINATHI
MPANDZA
4th
Respondent
AZARIUS
MATSIMBE
5th
Respondent
JABULANI
MHLABANE
6th
Respondent
Cr.
Trial no. 43/2001
Coram SAPIRE,
CJ
For
the Crown Mr. M. Maseko
For
Defence Mr. Ntiwane
Mr.
B.G. Simelane
Mr.
M. Mamba
JUDGMENT
(on
replacement)
(11/03/2002)
1
Accused
No. 1 has been found guilty of contravening Section 8(1) of the Game
Act of 1953 as amended and has been sentenced to the minimum period
of imprisonment prescribed by the Section. Accused 5 & 6 have
been found guilty of contravening Section 8(3) of the same Act and
sentenced to the minimum period of imprisonment prescribed under the
relevant section. Section 8(6) of the Act provides:-
"(6) Any
person found guilty of an offence under subsection (1), (3) or (4)
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.
(7) any
such replacement or compensation shall be made to the owner of the
game or, if ownership of the game cannot be established, to the owner
of the property where the game was hunted, and where the owner of
such game or property cannot be determined, such replacement or
compensation shall be made to the Government. "
The
first schedule provides for the identification of specially protected
game and includes the Rhinoceros of all species in respect of which
no replacement value is mentioned. It also includes the white
Rhinoceros and the black Rhinoceros specifically. In the former case
the replacement value is E40 000 and in the second case the
replacement value is E200 000.00.
The
res delictae in this case are two Rhino Horn that in terms of the
definition of game is the item which being a part of the animal with
which we have to deal.
Having
found the accused guilty of contravening sub-sections 1 and 3 the
court is required to make an order under sub-sections 6.
2
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
(a) the
owner of the horns cannot be established (in fact it is probably one
of the accused persons who is owner of the horns.).
(b) 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
(c) The
owner of the game or property cannot be determined.
(d) No
evidence of any loss which as 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.
Counsel
for the accused argue that the section cannot be properly applied in
these circumstances. The basis of the argument that there has been no
loss to anyone and the question of compensation or replacement cannot
arise. The wording of Section 7 however does not permit of such an
interpretation. It clearly contemplates that an order must be made
even where the person who has suffered a loss cannot be identified.
3
Crown
counsel proposed that in order to comply with the Section and to
avoid obvious inequities which would follow I should order that each
of the accused would be obliged to replace or compensate at the value
of one white rhino in terms of Section but that such be paid jointly.
That means you divide the compensation by 3. He suggested that each
of the accused would contribute one third. There is no provision of
the Act that would permit me to do so. Moreover if the game is to be
replaced the question of compensation does not arise.
A
further suggestion was submitted to me by defence counsel that seems
to make some sense and I will make an order in those terms. The
conclusion to which I have come makes it unnecessary for me to have
to consider some of the ticklish problems that may otherwise arise.
The three accused are ordered to replace the game which is the corpus
delicti namely 2 Rhino Horns. Their obligation so to do is however
discharged by the forfeiture of exhibits "A1" and "A2"
and their delivery to the Government as represented by the Chief
Ranger.
SAPIRE,
CJ
4
