S v African Game Services

• Jurisdiction: South Africa
• Judge: De Vos J, Prinsloo J
• Judgment Date: 22 November 2006
• Docket Number: A1767/04
• Hearing Date: 27 March 2006
• Court: Transvaal Provincial Division
• Citation: 2006 JDR 1031 (T)

De Vos J:

INTRODUCTION :

1.

The Three Appellants together with other co-accused appeared in the Regional Court, Pretoria on several charges of contravening the provisions of the Animal Protection Act 71 of 1962 (lithe Act") and on one charge of contravening the provisions of Section 1 of Act 24 of 1935.

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De Vos J

2.

The Second Appellant was cited in his personal capacity and also as a representative of the First Appellant in terms of Section 332 of the Criminal Procedure Act 51 of 1977.

3.

The Three Appellants were convicted on Count 1, being the contravention of Section 2(1)(a) read with Section 2(1)(q) and (r) of the Act. The First and Second Appellants were also convicted on Count 2, being the contravention of Section 2(1)(b) read with Section 2(1)( q) and (r) of the Act. They were sentenced as follows:

3.1

The First Appellant on Count 1 R15,000-00 and on Count 2 R10,000-00.

3.2

The Second Appellant on Count 1 R15,000-00 or 6 months imprisonment and a further 6 months imprisonment suspended for 5 years on appropriate conditions and on Count 2 R 1 0,000-00 or 6 months imprisonment plus a further 6 months imprisonment likewise suspended.

3.3

The Third Appellant was sentenced on Count 1 to a fine of R10,000-00 or 6 months imprisonment and a further 6 months suspended sentence was handed down.

4.

The Appellants now approach this Court on appeal against both conviction and sentence.

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De Vos J

CHARGES AGAINST THE APPELLANTS:

INTRODUCTION:

5.

This case involves the so called Tuli elephants. Baby elephants were apparently captured in Botswana and taken to South Africa where they were kept on a property which belonged to the African Game Property CC. Here Indonesian Mahouts (elephant trainers) were employed to subjugate the elephants. Mahout style training involves sleep deprivation, withholding of food and water, chaining and tethering and the extreme restriction of movement, and beatings with sharp and heavy objects such as the ankus (a traditional elephant goad), sharp hooks, whips and beating rods. [1]

6.

In applying restraining methods the elephants were tightly hobbled and chained, the calves were unable to lie down easily and were kept short of food and water, as well as beaten repeatedly with rubber whips, poked and jabbed with ankusses and a pole from which protruded the sharp end of a screw. During training sessions they were dragged around in circles anchored to an adult Indian elephant. During such sessions buckets of water were repeatedly hurled at the calf's face and to enforce further compliance a nylon rope with a hook attached was looped around one ear so that when tucked the hook dug into the soft flesh behind the ear.

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De Vos J

7.

The calves became severely stressed and took on a skeletal look of emaciation, their cheeks sunken, their eyes wide and staring from hollowed sockets, their bodies covered in festering abscesses resulting from all the prods and pokes, their hind legs encircled by raw chain wounds and their heads sporting lumps and bumps caused by heavy blows from a blunt instrument. In fact the elephants were so scared of their handlers, they lost control of their bowels while being beaten.

8.

A public outcry resulted from the fact that the Carte Blanche program on television featured an expose on the treatment of the animals. This resulted in the Appellants being charged as set out below.

9.

It was alleged by the State that the Appellants during the period September 1998 until May 1999 unlawfully and intentionally ill treated, neglected, infuriated, tortured or maimed or cruelly beat, kicked or terrified the elephants that were at all material times kept on a property which belonged to the African Game Property CC in the Rustenburg district. In the second count the State alleged that the Appellants unlawfully and intentionally confined, chained or secured the elephants unnecessarily or under such conditions or in such a manner or position as to cause the animals unnecessary suffering in a place which afforded inadequate space, ventilation, light, protection and shelter from heat, cold and weather.

10.

It is common cause between the parties that the elephants in question were being kept on the property of the African Game Property CC where the Second Appellant was staying at the time. The Three Appellants were at all times to some extent involved with the elephants in that the Second Appellant was involved in hiring or

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De Vos J

appointing the so-called Mahouts who were employed by the First Appellant who was engaged to train the elephants. The National Council for the Society of the Prevention of Cruelty to Animals ("NSPCA") obtained a court order in terms of which exclusive custody of the elephants in question was given to the NSPCA and an order was given that the training of the elephants would only take place under their supervision and control.

11.

The Court a quo found that both the First and Second Appellants complied with the extended description of owners as defined in Section 1 of the Act. Although the evidence did not show that the First and Second Appellants participated in any contravention of Section 2(A) and or 2(8) of...