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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Reportable

Case no: 1241/2016

In the matter between:

JAN KAREL ELS
APPELLANT

and

THE STATE
RESPONDENT

Neutral citation:
Els v The State (1241/2016) [2017] ZASCA 117 (22
September 2017)

Coram
Bosielo, Seriti and Saldulker JJA and Plasket and Tsoka
AJJA

Heard:
17 August 2017

Delivered:
22 September 2017

Summary: Appeal against sentence - environmental offences - unlawful
purchasing, possession and conveying of rhinoceros horns without a permit -
in contravention of the Limpopo Environmental Management Act 7 of 2003 -
misdirection by the trial court - appeal court entitled to interfere - four years’
imprisonment appropriate.

_____________________________________________________________

ORDER
______________________________________________________________

On appeal from: Gauteng Division of the High Court, Pretoria (Fourie and
Mabuse JJ sitting as court of appeal):

1.
The appeal is upheld.
2.
The sentence imposed by the trial court in respect of counts 5 and 6 is
set aside and substituted with the following:
‘Counts 5 and 6 are taken together for the purposes of sentence and the
accused is sentenced to four years’ imprisonment’.
3.
The suspended sentence on count 7 remains unaltered.

_____________________________________________________________

JUDGMENT
______________________________________________________________

Saldulker JA (Bosielo and Seriti JJA and Plasket and Tsoka AJJA
concurring):

[1] This appeal is against sentence only. The appellant, Mr Jan Karel Els
(Els) a game consultant manager, was charged in the regional court of
Musina (trial court), Limpopo with seven counts for the contravention of the
Limpopo Environmental Management Act 7 of 2003 (LEMA). Counts 1 to 4
related to the contraventions of s 31(1)(a) of the LEMA,1 (read with s 1 and
117(1)(a)(i) of LEMA), which are the unlawful, wrongful and intentional hunting
of a specially protected wild animal by darting or immobilising the said animals
by any means or method for trophy purposes without a valid permit. Counts 5
to 7 related to the contraventions of s 41(1)(a) of LEMA2 (read with  s 1 and s

1 31. Hunting of Wild and Alien animals - (1) No person may without a permit hunt—
(a) specially protected wild animals;
2 41. Prohibited acts regarding wild and alien animals - (1) No person may without a
permit— (a) acquire, possess, convey, keep, sell, purchase, donate or receive as a gift, any
specially protected wild animal, protected wild animal, game, non-indigenous wild animal or
animals referred to in Schedules 7 or 8;

117(1)(a)(i) of LEMA),3 which related to the unlawful purchasing, possessing
and conveying of the horns of a specially protected wild animal without a valid
permit.

[2] On 2 March 2012, the State withdrew counts 1 to 4 against the
appellant. The appellant  pleaded guilty to counts 5 to 7 and made a
statement in terms of s 112(2) of the Criminal Procedure Act 51 of 1977 (the
CPA).4 The State accepted the plea, whereafter he was convicted on the said
counts. Count 5 related to the purchasing, possession and conveying of 30
rhinoceros (rhino) horns without a valid permit; count 6 related to the receiving
of four rhino horns without a valid permit; and count 7 related to the
conveyance of eight rhino horns (being his property) without a valid permit.

[3] On 13 March 2012, the trial court sentenced the appellant as follows:
counts 5 and 6 were taken as one for sentencing purposes and he was
sentenced to ten years’ imprisonment, of which two years was suspended for
five years on condition that the appellant is not convicted of contravening s
41(1)(a) of Act 7 of 2003,5 during the period of suspension. In respect of count
7 he was sentenced to four years’ imprisonment suspended for five years on
condition that he is not convicted of contravening s 41(1)(a) of Act 7 of 20036
during the period of suspension. In addition thereto, he was sentenced to a
compensatory fine of R100 000 per month, payable to the National Wildlife
Crime Reaction Unit over a period of ten months for purposes of investigation
into rhino related matters.

3 Penalties - (1) Any person who is convicted of an offence in terms of this Act is liable—
(a) in case of an offence referred to in—
(i) sections 28(1), 31(1)(a), 35(1), and 40(1), 41(1), 41(2), 42(1),49, 541)(i) and (j), 57 (1)(a)
and (b), 57(2), 58, 61(2), 64(1)(a), 64(2)(a), 69(1), 70, 76.
4 112(2) Plea of guilty:
If an accused or his legal adviser hands a written statement by the accused into court, in
which the accused sets out the facts which he admits and on which he has pleaded guilty, the
court may, in lieu of questioning the accused under subsection (1)(b), convict the accused on
the strength of such statement and sentence him as provided in the said subsection if the
court is satisfied that the accused is guilty of the offence to which he has pleaded guilty:
Provided that the court may in its discretion put any question to the accused in order to clarify
any matter raised in the statement.
5 Refer to fn 2.
6 Refer to fn 2.

[4] Dissatisfied with the sentence imposed, the appellant launched an
appeal against the sentences. The trial court refused the application for leave
to appeal. Aggrieved by this, the appellant petitioned the Gauteng Division, of
the High Court, Pretoria for leave to appeal against the sentence, which was
partially successful. On 5 August 2014, the appeal against sentence in
respect of count 5 – 7 was heard by the court a quo (Fourie and Mabuse JJ
concurring), who set aside the compensatory fine of R100 000. However the
court a quo left the effective sentence of eight years’ imprisonment on counts
5, 6 and the suspended sentence on count 7 unaltered. The present appeal is
with the leave of the court a quo.

[5] Before I turn to consider the content of the statement made by the
appellant in terms of s 112(2) of the CPA, it is necessary to consider the
general import of the preamble to the charge - sheet, which reads as follows:

‘Maremani Nature Reserve (Pty) Ltd is a privately owned farm situated at Musina in
the Regional Division of Limpopo. The said farm is fenced. The main purpose of
Maremani Natural Reserve is nature conservation, although hunting occurs on
occasions.

Various wild animals are kept on the farm, including Rhinoceros White
(Ceratotherium simum) and Rhinoceros black (Diceros bicornis).

AND WHEREAS at all material times the late Mr Thomas Frederick Fourie, was
appointed to manage the farm on behalf of the owners, a Danish Consortium.

The late Mr Thomas Frederick Fourie was furthermore tasked with the
responsibilities of managing the Maremani Nature Reserve and to protect the wildlife
on the said Nature Reserve.

AND WHEREAS during October 2009 the accused, with the assistance of a
helicopter pilot immobilized and dehorned 2 white rhinoceros. Afterwards the horns, 4
in total, were bought without the necessary permits, from the late Mr Thomas
Frederick Fourie.

AND FURTHERMORE during October 2009 the accused once again immobilized
and dehorned 6 white rhinoceros and 5 black rhinoceros with the assistance of a
helicopter pilot and a veterinarian. Afterwards the accused bought the horns, 22 in
total, from the late Mr Thomas Frederick Fourie.

AND FURTHERMORE on 16 June 2010 the accused once again immobilized and
dehorned two white rhinoceros with the assistance of a helicopter pilot and a
veterinarian. Afterwards the accused bought the horns, four in total, from the late Mr
Thomas Frederick Fourie.

AND FURTHERMORE during July 2010 the accused once again immobilized and
dehorned 5 white, his own rhinoceros, with the assistance of a helicopter pilot and a
veterinarian. Afterwards the accused bought the rhinoceros (7) from the Limpopo
Valley Conservancy or Mr Jeremiah Jesia Cronje, he conveyed horns (8) without the
necessary permits to Thabazimbi.

AND WHEREAS according to Schedule 2 of the Limpopo Environmental
Management Act, Act 7 of 2003 both Rhinoceros white and Rhinoceros Blacks are
Specially Protected Wild Animals.

FURTHERMORE according to section 41(1) of the Limpopo Environmental
Management Act, Act 7 of 2003, no person may without a permit:
[a] acquire, possess, convey, keep, sell, purchase, donate or receive as a gift any
special protected wild animals, protected wild animals, games, non-indigenous wild
animal or animals referred to in Schedule 7 or 8.

AND WHEREAS according to chapter 1 of the Limpopo Environmental Management
Act, Act 7 of 2003, “hunt” means hunt with the intention to kill, and

(a) To dart or immobilize a wild or alien animal by any means or method for trophy
purposes: or . . . .’

[6] The events leading up to the commission of the offence appear largely
from the appellant’s written statement in terms of s 112(2) of the CPA. Therein
the appellant explained the circumstances relating to the illegal purchase,
possession and conveying of the rhino horns as follows:

‘Ek, die ondergetekende,

Jan Karel Pieter Els
. . . .
3. Op 30 Oktober op die Maremani Natuurreservaat het wyle Thomas Frederick
Fourie 30 (dertig) renosterhorings vir my te koop aangebied en my meegedeel dat sy
werkgewer hom opdrag gegee het om dit te verkoop.

4. Ons het op ‘n koopprys vir al die renosterhorings in die bedrag van R760, 000
(SEWE HONDERD EN SESTIG DUISEND RAND) ooreengekom, welke bedrag
betaalbaar was in drie paaiemente welke paaiemente ek betaal het.

5. Ek het op dieselfde dag besit geneem van 26 (SES EN TWINTIG))
renosterhorings en die renosterhorings vervoer na my woning te Thabazimbi.

6. Ek het op 16 Junie 2010 die balans van 4 (VIER) renosterhorings wat ek
aangekoop het op die Maremani Natuurreservaat in besit geneem en dit vervoer na
my woning te Thabazimbi.

7. Ek het agt renosterhorings van my eie in Julie 2010 onwettig vanaf Limpopo Valley
Conservancy na my woning in Thabazimbi vervoer.

8. Al bovermelde horings het ek sonder die nodige permitte vervoer en in my besit
gehou.

9. Derhalwe is ek skuldig aan die oortredings soos omskryf in Aanklagte 5,6, en 7
deurdat ek in elkeen van die gevalle Artikel 41(1)(a) van die Limpopo
Omgewingsbestuurswet, Wet 7/2003 oortree het.
10. Eh het tydens pleging van die misdryf geweet dat ek wederregtelik optree.’

[7] The appellant was convicted by the trial court on the basis of the
aforegoing statement in terms of s 112(2) of the CPA, and no evidence in
respect of the merits was tendered. In mitigation, a statement in terms of s

112(3)7 of the CPA with specific reference to the appellant’s personal
circumstances and the circumstances surrounding the offences was
submitted on behalf of the appellant. I do not propose to deal with it in any
great detail and the following suffices for present purposes.

[8] The appellant stated that he was 39 years old (at the time of the
offence), a game catcher and game management consultant. As a result of
these offences his occupation in the game trade had come to an end. He had
no intention of selling the rhino horns illegally. His intention was to collect the
rhino horns hoping that when the trade in rhino horns was legalised, he would
sell them for a profit. Mr Fourie, the manager of Maremani Nature Reserve,
had arranged for the helicopters, pilots and veterinarians for the purposes of
dehorning the rhinos, and none of the rhinos that were dehorned were injured
and/or killed during the dehorning process. He stated that his conduct in
regard to these offences, without the necessary permits, had to be
distinguished from the illegal hunting of rhinos (poaching and killing). The
rhino horns were stolen from him during September 2010, and as a result of
the theft he did not derive any benefit from the horns. He was remorseful
about his conduct and had co-operated with the police investigation.

[9] In aggravation of sentence, the State called one Mr Scholtz from the
South African National Parks Board. Mr Scholtz testified that he was
previously employed by the South African Police Service and worked for the
endangered species unit for about 11 years. Several aspects of his testimony
did not relate to the offences that the appellant had been found guilty of but
related to poaching. He testified about the statistics in respect of the illegal
hunting of rhinos, and the value of the rhinos being killed, and their
diminishing numbers. His testimony with regard to poaching was irrelevant
and inadmissible. He also testified about the unfounded belief in some Far
Eastern Countries that rhino horns are used as medicines to cure certain

7(3) Nothing in this section shall prevent the prosecutor from presenting evidence on any
aspect of the charge, or the court from hearing evidence, including evidence or a statement
by or on behalf of the accused, with regard to sentence, or from questioning the accused on
any aspect of the case for the purposes of determining an appropriate sentence.

illnesses, which evidence was unrelated to the charges the appellant was
convicted of.

[10] In sentencing the appellant, the trial court took into account wide
ranging aspects linked to the current rhino poaching crisis, which in my view,
constituted a clear misdirection The misdirections of the regional magistrate
are inter alia as follows: (a) he misinterpreted many of the facts and
admissions in terms of the s 112(2) statement of the appellant; (b) he
considered factors most of which were irrelevant to the offences that the
appellant had been convicted of; (c) he referred to the illegal hunting and/or
the killing of rhinos and the unlawful smuggling of and trade in rhino horns, all
of which in his opinion (without any factual basis) was astronomically out of
control; (d) he referred further to the sale of the rhino horns to foreigners,
namely Chinese, Vietnamese and Taiwanese, all of which were totally
contrary to the facts presented before him; (e) he then further referred to
unknown and unconfirmed media reports and a television programme in
respect of poaching and illegal hunting, which did not relate to the appellant’s
charges at all; (f) he relied on his ‘general knowledge’ of illegal hunting of
rhinos in the Kruger National Park where prostitutes were being ‘rented’ to
shoot rhinos without any evidence being tendered to prove this ‘general
knowledge’. This was improper and untenable. (g) his reliance on the
estimated figures referred to by Mr Scholtz in respect of rhinos illegally hunted
during 2009, was without any foundation and irrelevant to the present
charges. These figures were transposed to the offences committed by the
appellant, as if the appellant was the poacher; (h) he overemphasised the
seriousness of the present offences, which resulted in the effective eight
years’ imprisonment being imposed on the appellant.

[11] The regional magistrate furthermore misdirected himself by finding that
the appellant had been a participant in relation to the charges on counts 1 to
4. These charges had been withdrawn against the appellant. It was improper
for him to consider them for sentencing. He assumed that the rhinos had been
hunted and killed, whilst they were only dehorned and that Mr Fourie did not
have any permission to dehorn the rhinos. These findings are totally contrary

to the facts and admissions made by the appellant in his statement, which
was accepted by the State.

[12] The court a quo held that it could not find that the trial court had
misdirected itself and was not convinced that the sentence imposed, except
for the compensatory fine, was shockingly inappropriate. It reasoned that
there were aggravating circumstances which the regional magistrate had
taken into account: firstly, that the appellant must have known that Mr Fourie
would not have sold the rhino horns to him lawfully and secondly, that the
appellant misled the authorities in an attempt that in future he would obtain a
permit to enable him to possess and sell the rhino horns legally. There is no
factual basis for these assumptions. Like the trial court, the court a quo relied
on the testimony of Mr Scholtz that poaching of rhinos had increased since
2007, and as a result of the demand for the horns, a total of 1066 rhinos had
been killed unlawfully between the period of 2008 and 2012. The trial court
erred in treating the appellant as a poacher who killed rhinos when he was
not.

[13] Additionally, the court a quo took the view that the legislature deemed it
fit that a maximum penalty of R250 000 or imprisonment for a period not
exceeding 15 years or both such fine and imprisonment, was a clear
indication that these offences were not to be dealt with in a lenient manner.
Whilst the penalty may, in certain circumstances be laudable and deterrent,
the facts in this case did not call for such a penalty. In the event, the court a
quo held that the sentence imposed by the trial court was a salutary one,
given that this was a serious offence where the public interest played an
important role stating that: ‘What should also be taken into account in my
view, is that people who are involved in this evil business, whether by killing
these animals for their horns or by being illegally involved in the buying and
selling thereof, or by merely being in illegal possession thereof, are
participating in the destruction of the wild life heritage of this country’.

[14] In my view, both the trial court and the court a quo made an
assumption incorrectly and without any rational basis that the purchasing of

the rhino horns by the appellant emanated from illegal hunting of rhinos. This
impermissible approach by both courts lends itself to a misdirection, entitling
this Court to interfere. Before us, counsel for the State conceded that there
were several misdirections committed by the trial court and this concession, in
my view, was correctly made. At the same time the State contended that a
strong message had to be sent out that our environment had to be protected.

[15] It is trite law that sentencing is a matter pre-eminently in the discretion
of the trial court and a court of appeal will only interfere with the exercise of
such discretion when such discretion was not properly exercised, or the
sentence imposed is as a result of an irregularity or misdirection, or such
sentence, having regards to the nature and circumstances of the offence, is
disturbingly inappropriate or induces a sense of shock.8

[16] Mr Scholtz who was called by the State conceded that the appellant
was not part of any smuggling network and that the appellant’s position was
totally distinguishable from those cases related to poaching. By equating the
appellant’s conduct to that of poachers, the trial court misdirected itself.

[17] Having listened to both counsel, I am not persuaded that a non-
custodial sentence is called for. Threat to the wildlife in South Africa has
dramatically increased in recent years, and so has the illegal trade in rhino
horns. As a result, this species is under a serious threat of being slaughtered
or otherwise exploited, for economic gain. Sentences which reflect our
censure will go a long way to safeguard the rhino from being economically
exploited. Regrettably a non-custodial sentence would send out the wrong
message.

[18] Creating a safe haven for the fauna and flora of our land and our
heritage should resonate universally.9 This Court expressed the following
sentiments in S v Lemthongthai 10

8 S v de Jager & another 1965 (2) SA 616 (A) at 628H-629.
9 Tsoka J at para 20 in S v Lemtongthai [2013] ZAGPJHC 294; 2014 (1) SACR 495 (GJ).
10 Navsa JA at para 19 and 20 in S v Lemthongthai [2014] ZASCA 131; 2015 (1) SACR 353

‘[19] The Constitution recognises that citizens have the right to have the environment
protected for the benefit of present and future generations, through reasonable
legislative and other measures that, inter alia, promote conservation.

[20] The duty resting on us to protect and conserve our biodiversity is owed to
present and future generations. In so doing, we will also be redressing past neglect.
Constitutional values dictate a more caring attitude towards fellow humans, animals
and the environment in general . . . A non-custodial sentence will send out the wrong
message. Furthermore, illegal activities such as those engaged in by the appellant
are fuel to the fire of the illicit international trade in rhino horn.’

[19] I align myself with the above sentiments. However the facts in this case
differ from Lemtongthai. As a result the present appellant deserves a lighter
sentence. As it was held in the oft-quoted S v Zinn11, a sentence must fit the
crime, the criminal and be fair to society. Furthermore, it remains a salutary
principle of our law that sentences have to be individualised to fit the peculiar
circumstances of each accused.

[20] Accordingly, taking into account all of the above, the effective sentence
of eight years’ imprisonment imposed by the trial court on counts 5 and 6
appear to me to be inappropriate in the circumstances of the present case. As
a result, it has to be set aside. Having given a proper consideration to all the
facts, a sentence of four years’ imprisonment is appropriate.

[21] In the result the following order is made.

1.
The appeal is upheld.
2.
The sentence imposed by the trial court in respect of counts 5 and 6 is
set aside and substituted with the following:
‘Counts 5 and 6 are taken together for the purposes of sentence and the
accused is sentenced to 4 years’ imprisonment.’

(SCA).
11 S v Zinn 1969 (2) SA 537 (A).

3. The suspended sentence on count 7 remains unaltered.

______________________
H K Saldulker

Judge of Appeal

APPEARANCES:

For the Appellant:

J H Van der Merwe
Instructed by:
Phillip du Toit Attorneys, Pretoria
Van Pletzen Lambrechts Attorneys, Bloemfontein

For the Respondent:
P A Van Wyk SC
Instructed by:

Director of Public Prosecutions, Pretoria

Director of Public Prosecutions, Bloemfontein
SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT
OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

22 September 2016

STATUS

Immediate

Els v The State (1241/2016) [2017] ZASCA 117
Please note that the media summary is intended for the benefit of the media
and does not form part of the judgment of the Supreme Court of Appeal.

The SCA today upheld an appeal and set aside and substituted a decision of the Gauteng
Division of the High Court, Pretoria, from an effective sentence of eight years imprisonment to
four years imprisonment, and with a suspended sentence remaining unaltered.

The appellant, Mr Jan Karel Els, a game consultant manager, was charged in the regional
court, Musina, Limpopo with 7 counts relating to the contravention of the Limpopo
Environmental Management Act 7 of 2003. The State withdrew counts 1 to 4 against the
appellant who pleaded guilty to counts 5, 6 and 7. The State accepted the plea, whereafter he
was convicted on the said counts. Count 5 related to the purchasing, possession and
conveying of 30 rhino horns without a valid permit; count 6 related to the receiving of four
rhino horns without a valid permit; and count 7 related to the conveyance of eight rhino horns
(being his property) without a valid permit.

The trial court sentenced the appellant on counts 5 and 6, which were taken together as one
for sentencing purposes, to ten years' imprisonment, of which two years was conditionally
suspended for five years; and on count 7 to four years' imprisonment conditionally suspended
for five years. In addition thereto, he was sentenced to a compensatory fine of R100 000 per
month payable to the National Wildlife Crime Reaction Unit over a period of ten months for
purposes of investigation into rhino related matters.

The appellant launched an appeal against his sentence, which the trial court refused. The
appellant then petitioned the Gauteng Division, Pretoria for leave to appeal against the
sentence, which was partially successful. The appeal in respect of the sentences in respect of
counts 5 to 7 was heard by the court a quo. The court a quo set aside the compensatory fine
of R100 000, but left the sentence of eight years' imprisonment on counts 5, 6 and the
suspended sentence on count 7.

On appeal to the SCA, the SCA held that both the trial court and the court a quo incorrectly
made an assumption, without any rational basis, that the purchasing of the rhino horns by the
appellant emanated from illegal hunting of rhinos. These assumptions amounted to a
misdirection entitling this Court to interfere. The SCA went further, qualifying its decision to
impose a custodial sentence by stating that the rhino species was under serious threat of
being slaughtered or commercially exploited, and to impose a non-custodial sentence would
send out a wrong message.

In the event, the SCA found that a sentence of four years' imprisonment was appropriate in
the circumstances, on counts 5 and 6. The suspended sentence on count 7 remained
unaltered.