Hume v Directorate for Priority Crime Investigation and Another

• Jurisdiction: South Africa
• Judge: Hassim AJ
• Judgment Date: 28 January 2022
• Court: Gauteng Division, Pretoria
• Hearing Date: 28 January 2022
• Citation: 2022 (1) SACR 518 (GP)
• Counsel: DJ Joubert SC for the applicant. EC Labuschagne SC (with V Mabuza) for the respondents.
• Docket Number: 33593/20

Hassim AJ:

Introduction

[1] The applicant institutes a rei vindicatio for the return of 181 rhinoceros horns (the 181 horns, or the horns), valued at approximately R10 million. The 181 horns were seized by the respondents on 13 April

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2019 in terms of s 20 of the Criminal Procedure Act 51 of 1977 (the CPA) from two individuals, Petrus Stephanus Steyn (Steyn) and Clive John Mevam Melville (the accused). The 181 horns had been transported without a permit. The accused were charged with the unlawful possession and transportation of the rhino horns in contravention of s 57(1) read with ss 1, 4, 6, 8, 56, 57, 87, 87A, 88, 90, 92, 93, 97, 98, 101(1) and 102 of the National Environmental Management: Biodiversity Act 10 of 2004 (NEMBA).

[2] It is common cause that the applicant is the owner [1] of the 181 horns and that they are in the respondents' custody, having been seized in terms of s 20 of the CPA.

[3] The accused were prosecuted in the regional court for the regional division of North West, held at Brits. They entered into a plea-and-sentence agreement in terms of s 105A of the CPA. The proceedings were finalised on 5 June 2020. However, the magistrate presiding at the criminal proceedings failed to make an order as to the return of the 181 horns seized under s 20.

[4] Incidentally, the respondents have not pertinently raised the interest of the National Director of Public Prosecutions (the NDPP) or the Director of Public Prosecutions (the DPP), Gauteng Provincial Division, who represents the state in all prosecutions. There is an obscure reference to it (and I put it no higher than that), that the state intended opposing an application in terms of s 34 of the CPA which the applicant had intimated he would bring in terms of s 34. My prima facie view is that either the NDPP or the DPP, Gauteng Provincial Division, and perhaps both, is a necessary party and ought to have been joined in these proceedings. This, notwithstanding that the applicant's cause of action is a rei vindicatio, and not the CPA. The respondents do not represent the state, which is represented in criminal proceedings by the prosecuting authority. I say no more on the issue because of my view that the applicant cannot succeed in vindicating his claim to the horns on his pleaded case.

[5] Section 34 of the CPA, amongst others, [2] regulates how articles seized under s 20 must be dealt with. Section 34 provides:

'34 Disposal of article after commencement of criminal proceedings

(1) The judge or judicial officer presiding at criminal proceedings shall at the conclusion of such proceedings, but subject to the provisions of this Act or any other law under which any matter shall or may be forfeited, make an order that any article referred to in section 33 —

(a)

be returned to the person from whom it was seized, if such person may lawfully possess such article; or

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(b)

if such person is not entitled to the article or cannot lawfully possess the article, be returned to any other person entitled thereto, if such person may lawfully possess the article; or

(c)

if no person is entitled to the article or if no person may lawfully possess the article or, if the person who is entitled thereto cannot be traced or is unknown, be forfeited to the State.

(2) The court may, for the purpose of any order under subsection (1), hear such additional evidence, whether by affidavit or orally, as it may deem fit.

(3) If the judge or judicial officer concerned does not, at the conclusion of the relevant proceedings, make an order under subsection (1), such judge or judicial officer or, if he is not available, any other judge or judicial officer of the court in question, may at any time after the conclusion of the proceedings make any such order, and for that purpose hear such additional evidence, whether by affidavit or orally, as he may deem fit.

(4) Any order made under subsection (1) or (3) may be suspended pending any appeal or review.

(5) Where the court makes an order under paragraph (a) or (b) of subsection (1), the provisions of section 31(2) shall mutatis mutandis apply with reference to the person in favour of whom such order is made.

(6) If the circumstances so require or if the criminal proceedings in question cannot for any reason be disposed of, the judge or judicial officer concerned may make any order referred to in paragraph (a), (b) or (c) of subsection (1) at any stage of the proceedings.'

[6]

[6.1]

Section 34(1)(a) obliges the presiding officer to make an order as to the disposal of the seized article. This should happen at the conclusion of the proceedings. However, where such an order is not made at the conclusion of the criminal proceedings, s 34(3) authorises such an order at any time after the conclusion of the criminal proceedings. It specifically identifies not only the court which has the jurisdiction to make such an order, but it also directs that the order should be made by the judge or judicial officer who presided over the criminal proceedings. It is only where that judge or presiding officer is not available, that another judge or presiding officer of the court where the criminal proceedings were concluded may make the order. [3]

[6.2]

Section 34(3) affords a remedy to a person in the applicant's position who seeks the recovery of property seized in terms of s 20 of the CPA.

[7] As mentioned, the magistrate presiding over the criminal proceedings has made no order as to the disposal of the seized horns. The horns remain in the first respondent's custody.

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Summary of the salient facts and averments

[8] The applicant, who describes himself as a businessman, breeder and owner of a white-rhinoceros breeding facility, is authorised in terms of the relevant legislation to breed white rhinoceris in captivity. He owns more than 1800 white rhinoceris. It is common cause that the applicant harvests rhinoceros (rhino) horns.

[9] The NEMBA prohibits any restricted activity as defined [4] therein, unless a permit authorising the restricted activity is issued by the relevant authority. The applicant ostensibly holds a permit issued on 20 December 2018 in terms of the NEMBA to possess, amongst others, the 181 horns. The permit is valid for 50 years from the date of its issue (the applicant's possession permit). [5] It authorises the storage of the horns at an address in Centurion, which is the location of a third-party secure vault (the Centurion vault). Unlike the other permits attached to the founding affidavit to which I refer shortly, the page which ought to contain the conditions of the permit is not attached to it.

[10] On 30 January 2019 the applicant obtained a permit which was valid from 30 January 2019 to 20 May 2019, authorising the sale of 181 rhinoceros horns to Alan Rossouw (the selling permit). A document captioned 'Standard Permit Conditions' was attached to the permit. The conditions to the permit, amongst others, were that the permit was not transferable, would be deemed invalid if it was lost or destroyed and a copy thereof would not be issued, and it would be invalid if it is not signed by the permit-holder. It was recorded that a contravention of, or a failure to comply with, a condition or requirement of the permit constituted a criminal offence. The Special Conditions, amongst others, were that the 181 horns listed in the selling permit could only be sold to a holder of a buying permit.

[11] On the same day, a permit was issued in Rossouw's name, authorising him to purchase the 181 horns from the applicant (the purchasing permit). The validity period of the purchasing permit coincided with that of the selling permit. It was subject to the same standard conditions and special conditions as the selling permit, save that the purchasing permit required that the horns had to be purchased from a holder of a selling permit.

[12] The applicant alleges that on 25 February 2019 a permit was issued to Rossouw, authorising him to possess the 181 horns (Rossouw's possession permit). The wording on the copy of the permit uploaded onto CaseLines is wholly illegible. None of the required particulars are

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decipherable. The permit is subject to the same standard conditions as the permits referred to hereinbefore. The 181 horns are identified in the addendum to the permit. The addendum reflects Rossouw as the permit- holder and his address as 'Care of: XXXX Security, 222 _____, Centurion, Pretoria'. [6] This is the address identified on the applicant's possession permit as the location of the applicant's rhino horns.

[13] On 9 April 2019 a permit was issued in Rossouw's name to transport the 181 horns from the Centurion vault to 'XXX Vault, XXX Safety Box Deposit, Houghton ___ Johannesburg' (the Houghton vault). This vault is also a third-party secure vault. The permit was valid from 9 April 2019 to 8 June 2019. The permit conditions authorised the transport of the 181 horns within only the Gauteng Province. Additionally, the permit was not transferable and not valid unless the permit and the conditions were signed by the permit-holder.

[14] Considering that all the permits were subject to the same standard conditions, it is reasonable to infer that the applicant's possession permit referred to in [9] above, was also not transferable, was deemed invalid if lost or destroyed and a copy would not be issued, and would be invalid if it was not signed by the permit-holder. And, that it recorded that a contravention or failure to comply with a condition or requirement of the permit constituted a criminal offence.

[15] None of the permits are signed by the permit-holder.

[16] The applicant avers that the 181 horns were the subject of a domestic sale to Alan Rossouw, whom the applicant expressly avers he had never personally met. The applicant and Rossouw agreed that Rossouw could remove and transport the...