Lodi v MEC for Nature Conservation and Tourism, Gauteng, and Others

• Jurisdiction: South Africa

Lodi v MEC for Nature Conservation and Tourism, Gauteng, and Others
2005 (1) SACR 556 (T)

2005 (1) SACR p556

Citation	2005 (1) SACR 556 (T)
Case No	A1987/02
Court	Transvaal Provincial Division
Judge	Patel J and Legodi J
Heard	May 25, 2004
Judgment	January 31, 2005
Counsel	Z Omar for the applicant.; S M Lebala for the first and second respondents.; J N T Schutte for the third respondent.; No appearance for the fourth respondent.

Flynote : Sleutelwoorde B

Environmental offences — Possession of game — Nature Conservation Ordinance 12 of 1983 (G) — Sections 37(1)(c) and 110(1) of ordinance unconstitutional and invalid in that they cast reverse onus on accused, which violates constitutional right to be C presumed innocent and to remain silent — However, application to have sections set aside dismissed as trial not completed and application premature.

Headnote : Kopnota

Section 37(1)(c) of the Nature Conservation Ordinance 12 of 1983 (G) provides as follows: 'Any person who - . . . (c) in any manner acquired or receives into his possession or handles dead game without having D reasonable cause, proof of which shall be on him, for believing at the time of such acquisition, receipt or handling that such game was hunted or acquired lawfully, shall be guilty of an offence.' Section 110(1)(b) and (c) of the ordinance provide as follows: 'Where at criminal proceedings in terms of this ordinance - . . . (b) it is alleged that an offence has been committed in connection with or in respect of a E particular species of wild animal, exotic animal, fish or indigenous plant or a particular sex of a species of wild animal or exotic animal, the species of such wild animal, exotic animal, fish or indigenous plant or the sex of the species of such wild animal or exotic animal shall be deemed to be as alleged; (c) it is proved that a wild animal, exotic animal, fish or indigenous plant was upon a float, vessel, hovercraft, aircraft or vehicle or at a camping place, every F person who was upon or in any way associated with the float, vessel, hovercraft, aircraft or vehicle or who was at or in any way associated with the camping place shall be deemed to have been in possession of such wild animal, exotic animal, fish or indigenous plant . . . until the contrary is proved.'

By way of review in respect of a criminal trial pending in a regional court, the applicant sought an order, inter alia, declaring G the provisions of ss 37(1)(c), 110(1)(b) and (c) of the ordinance to be unconstitutional and invalid on the basis that the provisions placed a reverse onus on the accused, thus infringing an accused's right to a fair trial and, in particular, his right 'to be presumed innocent [and] to remain silent' as enshrined in s 35(3)(h) of the Constitution of the Republic of South Africa Act 108 of 1996: s 37(1)(c), H by calling for 'reasonable cause, proof of which shall be on (the accused)', and ss 110(1)(b) and (c), by providing for the application of certain presumptions 'until the contrary is proved'. The Court found that the provisions of ss 37(1)(c) and s 110(1) of the ordinance are unconstitutional and invalid in that they cast a reverse onus on the accused, which violates her or his constitutional right to be presumed innocent and to remain silent. (Paragraphs [30] and [35] at 566i and 569b.) I

However, the Court held that it was unnecessary to decide the issue finally, inasmuch as the review application was premature. Depending on how the trial unfolded, it might not be necessary to decide the constitutional issue. Even if there were a reasonable prospect that certain of the provisions of the ordinance were invalid, that was not in itself sufficient ground for referral, J

2005 (1) SACR p557

since it was not in the interest of justice to refer an issue simply because it had been A raised. The review application was accordingly dismissed. (Paragraphs [37] - [39] and [43] at 569e - h and 570g.)

Annotations:

Cases cited

Reported cases

Ismael and Others v Additional Magistrate, Wynberg, and Another 1963 (1) SA 1 (A): applied B

Osman and Another v Attorney-General, Transvaal 1998 (2) SACR 493 (CC) (1998 (4) SA 1224; 1998 (11) BCLR 1362): applied

Phillips and Another v Director of Public Prosecutions, Witwatersrand Local Division, and Others 2003 (1) SACR 425 (CC) (2003 (3) SA 345): compared C

Phillips and Another v Director of Public Prosecutions, Witwatersrand Local Division, and Others 2002 (2) SACR 375 (W) (2002 (5) SA 549): distinguished

Pretoria City Council v Walker 1998 (2) SA 363 (CC) (1998 (3) BCLR 257): dictum in para [16] applied

R v Luthingo 1961 (2) SA 343 (N): referred to

R v Rottcher 1924 TPD 472: referred to D

S v Bequinot 1997 (1) SACR 369 (CC) (1997 (2) SA 887; 1996 (12) BCLR 1588): applied

S v Bhulwana; S v Gwadiso 1995 (2) SACR 748 (CC) (1996 (1) SA 388; 1995 (12) BCLR 1579): dictum in para [7] applied

S v Coetzee and Others 1997 (1) SACR 379 (CC) (1997 (3) SA 527; 1997 (4) BCLR 437): dictum in para [5] applied E

S v Manamela and Another (Director-General of Justice Intervening) 2000 (1) SACR 414 (CC) (2000 (3) SA 1; 2000 (5) BCLR 491): applied

S v Manamela and Another (Director-General of Justice Intervening) 1999 (2) SACR 177 (W) (1999 (9) BCLR 994): dictum in para [45] applied

S v Mhlungu and Others 1995 (2) SACR 277 (CC) (1995 (3) SA 867; 1995 (7) BCLR 793): applied F

S v Moller 1990 (3) SA 876 (A): referred to

S v Nel 1963 (1) SA 383 (T): dictum at 384H - 385A referred to

S v Singo 2002 (2) SACR 160 (CC) (2002 (4) SA 858; 2002 (8) BCLR 793): applied

S v The Attorney-General of the Western Cape; S v The Regional Magistrate, Wynberg and Another 1999 (2) SACR 13 (C): applied G

S v Zungu 1972 (3) SA 44 (N): referred to

SAPAT and Others v The Director: Directorate for Organised Crime and Public Safety and Others 1999 (2) SACR 435 (C): applied

Walker v Stadsraad van Pretoria 1997 (4) SA 189 (T): dictum at 203E applied H

Wahlhaus and Others v Additional Magistrate, Johannesburg, and Another 1959 (3) SA 113 (A): applied.

Legislation cited

Statutes

The Constitution of the Republic of South Africa Act 108 of 1996, s 35(3)(h): see Juta's Statutes of South Africa 2003 vol 5 at 1-150 I

The Nature Conservation Ordinance 12 of 1983 (G), ss 37(1)(c), 110(1)(b) and (c).

Case Information

Review application in terms of Rule 53 of the Uniform Rules of Court. The facts appear from the reasons for judgment.

Z Omar for the applicant. J

2005 (1) SACR p558

S M Lebala for the first and second respondents. A

J N T Schutte for the third respondent.

No appearance for the fourth respondent.

Cur adv vult.

Postea (January 31). B

Judgment

Patel J:

A Introduction

[1] This is a review application, in terms of Rule 53 of the Uniform Rules of Court, by the applicant, Steven Lodi, a businessman from Mobopane, in respect of a criminal prosecution pending in the C Pretoria regional court.

[2] The first respondent is the Member of the Executive Council for Nature Conservation and Tourism for the Province of Gauteng and is assigned to administer, insofar as the provisions of the Nature Conservation Ordinance 12 of 1983, as amended, (the ordinance) is D applied in or with reference to the Province of Gauteng. The second respondent is the Minister of Environmental Affairs and Tourism. The third respondent is the Director of Public Prosecutions, Transvaal. The fourth respondent is the Minister of Justice and Constitutional Affairs. The second and fourth respondents are E members of the national Executive and are cited for all interests they may have in respect of the law relating to nature conservation and the constitutionality of any of the provisions of the ordinance challenged by the applicant in these review proceedings. F

B Background

[3] On 19 June 2001, the applicant and his co-accused, Magotsi Joseph Moroke and Mishack Sibiya were arrested. They were charged on or about 26 July 2001 on three counts: G

•

Contravention of s 32(2), read with ss 1(xx), 1(1ii), 1(1iiiA), 15, 32(1) and 32(3) of the ordinance.

•

Contravention of s 37(1)(a), read with ss 1, 15, 110, 111 and 112(1)(a)(i); alternatively, contravention of s 37(1)(b), read with the aforesaid sections; alternatively, contravention of s 37(1)(c), read with the said sections of the ordinance; alternatively, contravention of reg 41A(8), read with reg 1 and 41A(2) promulgated in terms of s 102 H of the ordinance, read with s 250 of the Criminal Procedure Act 51 of 1977.

•

Contravention of s 38(2), read with ss 1(xx), 1(1iiiA), 15 and 38(1) of the ordinance. I

[4] The charges read as follows:

'Count 1:

In that upon or about 19 June 2001 and at or near Pretoria North in the regional division of Northern Transvaal, the accused did unlawfully deal in two elephant tusks without being the holder of a permit which entitles them to do so. J

2005 (1) SACR p559

Patel J

Count 2: A

In that upon or about 19 June 2001 and at or near Pretoria North in the regional division of Northern Transvaal, the accused did unlawfully receive dead game, to wit, two elephant tusks, knowing that it was not lawfully acquired or hunted.

First alternative to count 2:

In that upon or about 19 June 2001 and at or near Pretoria North in the regional division of Northern Transvaal, the accused did B unlawfully receive dead game, to wit, two elephant tusks, knowing that it was not legally acquired or hunted, and the accused not being able to give a satisfactory account of such possession.

Second alternative to count 2:

In that upon or about 19 June 2001 and at or near Pretoria North in the regional division of Northern Transvaal, the accused did unlawfully receive dead game, to wit, two elephant tusks, without C having reasonable cause for believing, at the time of such acquisition, that...