MEMORANDUM OF DEMAND
[date]
To: [name of SA Government department/minister]
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DEMAND FOR PROPOSED AMENDMENTS TO SOUTH
AFRICAN LEGISLATION TO COMBAT RHINO POACHING
AND CRIMES INVOLVING THREATENED OR PROTECTED
SPECIES
1.
REQUEST FOR AMENDMENT TO LEGISLATION
The Department of Justice and Constitutional Development is hereby urgently
requested to intervene in the rhino poaching crisis by amending relevant legislation
that governs the bail applications and the prescribed sentence for the crime of
contravening Section 57(1) of the National Environmental Management: Biodiversity
Act 10 of 2004 - Restricted activity with a threatened or protected species.
Rhino poaching and the trade in rhino horn has escalated to such an extent that
positive action from the South African Government on the highest political level is
necessary and justified before an entire species becomes extinct.
With the current legislation rhino poachers are easily released on bail and the lenient
sentences imposed make their criminal efforts well worth their while. The risk of
being caught is low and the risk of being imposed a sentence of long term
imprisonment is equally low.
In similar circumstances in the past when serious and violent crimes escalated, the
legislature responded with the promulgation of the Criminal Law Amendment Act No.
105 of 1997 which came into operation on 31 December 2007.
In light of the high prevalence of crimes such as armed robberies, hi-jacking, rape
and murder the legislature deemed it fit to promulgate the Act, commonly referred to
as “The Minimum Sentences Act” to visit such crimes with prescribed minimum
sentences of long term imprisonment.
The effect of the amendment was profound since Magistrates and Judges, after the
amendment, did not have an unfettered discretion to impose just any sentence for
these crimes as they did in the past. Section 51(3)(a) of the Act further requires that
if any court is satisfied that substantial and compelling circumstances exist which
justify the imposition of a lesser sentence than the prescribed sentence, it shall enter
those circumstances on the record of proceedings and may thereupon impose such
lesser sentence.
Therefore similar intervention is requested for restricted activities involving
threatened or protected species. If the law is strengthened in this regard then the
hand of the courts and prosecution will as a necessary result also be stronger to deal
with these types of offences in a more satisfactorily manner.
2.
PROPOSED AMENDMENTS
Two proposals are made that would have an impact on curbing poaching and they
are the following:
1.
Amendment to Part III of Schedule 2 of the Criminal Law Amendment
Act 105 of 1997 to prescribe a minimum sentence of 10 (TEN) years
imprisonment applicable to the crime of contravening Section 57(1) of
the National Environmental: Biodiversity Act 10 of 2004 when the crime
involves rhinoceros or elephant, or other threatened or protected
species where the value in question involves amounts of R100 000 or
more; and
2.
Amendment to Schedule 5 of the Criminal Procedure Act 51 of 1977 to
include the offence of contravening Section 57(1) of the National
Environmental: Biodiversity Act 10 of 2004 where rhinoceros or
elephant are involved, or the value of the threatened or protected
species in question involves amounts of R100 000 or more, as a
Schedule 5 offence.
3. AMENDMENT TO THE CRIMINAL LAW AMENDMENT ACT NO. 105 OF 1997
It is recommended that the legislature enacts a prescribed minimum sentence of 10
years imprisonment for carrying out a restricted activity with a threatened or
protected species where it is proved that a rhinoceros or elephant is involved; or
where the value of the threatened or protected species in question involves amounts
of R100 000 or more.
There is no substantive offence in South African Law that prohibits “rhino poaching”
in its own right. To hunt a rhino illegally, or any threatened or protected species is
prohibited in terms of Section 57(1) of the National Environmental Management:
Biodiversity Act 10 of 2004. The offence is referred to as: “Restricted activity
involving a listed threatened or protected species”. Therefore any reference to “rhino
poaching” henceforth must be taken to mean a contravention of this section as well
as to include offences with other high value threatened or protected species.
The description of the offence is the following:
Section 57(1):
A person may not carry out a restricted activity
involving a listed specimen of a threatened or
protected species without a permit issued in terms of
Chapter 7.
The prescribed penalty is a fine not exceeding R10 million, or imprisonment for a
period not exceeding ten years, or to both such fine and imprisonment.
Rhino poaching is committed by armed and dangerous criminal groups and the
manner in which the offence is committed can be likened to Robbery with
aggravating circumstances which resorts under Part II of Schedule 2 for which the
minimum sentence is 15 years imprisonment for a first offender.
Taking into account that the value of one rhino is over R100 000 then poaching a
rhino is effectively also permanently removing ownership of it as in the case of theft.
The “Minimum Sentences Act 105 of 1997 prescribes a minimum sentence of 15
years imprisonment in cases of theft –
•
•
involving amounts of more than R500 000;
or involving amounts of more than R100 000, if it is proved that the
offence was committed by a person, group of persons, syndicate or
any enterprise acting in the execution or furtherance of a common
purpose or conspiracy; then the crime falls under Part II of Schedule 2
of the Act.
Based on the value of the commodity involved rhino poaching qualifies to be listed
on Part II of Schedule 2 of the Minimum Sentence Act 105 of 1997.
However the minimum sentence prescribed by Act 105 of 1997 for offences listed on
Part II of Schedule 2 is 15 years imprisonment which exceeds the maximum
sentence of 10 years imprisonment prescribed by the National Environmental
Management: Biodiversity Act 10 of 2004 for a restricted activity with a threatened or
protected species with 5 years imprisonment.
It is not in the interest of justice that different Statutes enacted by one and the same
legislature contradict each other in terms of the penalties prescribed. Therefore it
would then rather make sense to enlist rhino poaching on Part III of Schedule 2 of
Act 105 of 1997 since the prescribed sentence is in line with that of the Biodiversity
Act which amounts to 10 years imprisonment.
In Part III of Schedule 2 of the Criminal Law Amendment Act 105 of 1997 a term of
10 years imprisonment is prescribed for the following offences:
•
•
•
•
•
Rape in circumstances other than those referred to in Part I;
Indecent assault on a child under the age of 16 years, involving the
infliction of bodily harm;
Assault with the intent to do grievous bodily harm on a child under the
age of 16 years;
Any offence in contravention of section 36 of the Arms and
Ammunitions Act, 1969 (Act 75 of 1969), on account of being in
possession of more than 1000 rounds of ammunition intended for firing
in an arm contemplated in section 39 (2) (a) (i) of that Act.
Any trafficking related offence by a commercial carrier as contemplated
in section 71 (6) of the Criminal Law (Sexual Offences and Related
Matters) Amendment Act, 2007.
In terms of Section 51(2)(b) of Act 105 of 1997 read with Part III of Schedule 2 the
prescribed penalties for the above offences are:
In the case of—
(i)
a first offender, to imprisonment for a period not less than
10 years;
(ii)
a second offender of any such offence, to imprisonment
for a period not less than 15 years; and
(iii)
a third or subsequent offender of any such offence,
to imprisonment for a period not less than 20 years;
Although crimes involving other threatened or protected species with a much lower
value than rhino are also prosecuted under the same Section 57(1), it would be
ludicrous to make the minimum sentence applicable to all species.
It is
recommended that the amendment should be qualified to apply to crimes involving
rhinoceros and elephant and any threatened or protected species where it is proved
that a value of R100 000 or more is involved.
The suggested amendment is therefor to Part III of Schedule 2 of the Criminal Law
Amendment Act 105 of 1997 with the addition of the following offence to the list and
to read as follows:
Any offence referred to in section 57(1) of the National Environmental
Management: Biodiversity Act 10 of 2004, if it is proved that(a)
the listed threatened or protected species involved is a
rhinoceros or elephant; or
(b)
the value of the listed threatened or protected species or product
or derivative in question involves amounts of more than
R100 000; or
(c)
the value of the listed threatened or protected species or product
or derivative in question involves amounts of more than R10 000;
if it is alleged that the offence was committed by a person, group
of persons, syndicate or any enterprise acting in the execution or
furtherance of a common purpose or conspiracy; or
(d)
if it is alleged that the offence was committed by any law
enforcement officer(i)
involving amounts of more than R10 000,00; or
(ii)
as a member of a group of persons, syndicate or
any enterprise acting in the execution or
furtherance of a common purpose
4. AMENDMENT TO SCHEDULE 5 OF THE CRIMINAL PROCEDURE ACT 51 OF 1977
Section 60(1) (a) of the Criminal Procedure Act 51 of 1977 states:
“An accused who is in custody in respect of an offence shall, subject to the
provisions of section 50 (6), be entitled to be released on bail at any stage
preceding his or her conviction in respect of such offence, if the court is
satisfied that the interests of justice so permit.”
The accused is therefore entitled to be released on bail in respect of any offence
unless the offence is listed on Schedule 5 or 6 of the Criminal Procedure Act 51 of
1977.
Section 60(11)(b) of the Criminal Procedure Act 51 of 1977 provides the following:
“Notwithstanding any provision of this Act, where an accused is charged with
an offence referred to(b)
in Schedule 5, but not in Schedule 6, the court shall order that
the accused be detained in custody until he or she is dealt
with in accordance with the law, unless the accused, having
been given a reasonable opportunity to do so, adduces
evidence which satisfies the court that the interests of justice
permit his or her release.
It is a deeply entrenched fundamental right that every person is innocent until proven
guilty and therefore the purpose of bail proceedings are not to punish the accused in
advance for a crime he has not yet been convicted of, but to ensure that he stands
his trial until finalisation thereof.
One of the factors that impact on the high prevalence of rhino poaching is the lenient
manner in which courts deal with rhino poachers especially with regard to bail
proceedings.
Experience has illustrated that when an accused is released on bail the case takes
much longer to finalise than when an accused is in custody during the trial. An
incarcerated accused is much more eager for the trial to proceed and reach its
finality without delay. However for an accused person who is released on bail there
is just no urgency to finalise the matter as speedily as possible since his life goes on
in all respects. In fact the longer the case is dragged out the better for the accused
since witnesses lose interest, the media loses interest and evidence and witnesses
could even disappear.
Therefore if changes are made to the legislation governing bail proceedings the court
would have no choice but to deal with the offence in the same manner as it does with
the more serious offences listed on Schedule 5.
If Section 57(1) of the National Environmental Management: Biodiversity Act 10 of
2004 is listed on Schedule 5 the onus shifts to the accused to prove that his release
is permitted in the interests of justice.
The proposed amendment to Schedule 5 of the Criminal Procedure Act 51 of 1977 to
read as follows:
Any offence referred to in section 57(1) of the National Environmental
Management: Biodiversity Act 10 of 2004, if it is proved that-
5.
(a)
the listed threatened or protected species involved is a
rhinoceros or elephant; or
(b)
the value of the listed threatened or protected species or product
or derivative in question involves amounts of more than
R100 000; or
(c)
the value of the listed threatened or protected species or product
derivative in question involves amounts of more than R10 000; if
it is alleged that the offence was committed by a person, group
of persons, syndicate or any enterprise acting in the execution or
furtherance of a common purpose or conspiracy; or
(d)
if it is alleged that the offence was committed by any law
enforcement officer(i)
involving amounts of more than R10 000,00; or
(ii)
as a member of a group of persons, syndicate or
any enterprise acting in the execution or
furtherance of a common purpose
CONCLUSION
It is commonly accepted that rhino poaching is a crime committed by organised
criminal syndicates who act in the furtherance of a common purpose. Law
enforcement up until now has failed dismally to detect and curb the poaching in
South Africa. When arrested poachers are released on bail and sentences imposed
are highly unsatisfactory. Therefore it is submitted that the proposed changes to
legislation will go a long way in sending the message to poachers that if they are
apprehended and prosecuted they will be dealt with harshly in the circumstances.
The time has come to enact a prescribed minimum sentence of 10 years
imprisonment for a restricted activity involving a rhinoceros, elephant or any
threatened or protected species with a value of R100 000 or more and to categorise
the offence under Schedule 5 for the purposes of bail applications in order to reflect
the seriousness of the offence and to strengthen the hand of the prosecution and the
court when dealing with such offences. It is also strongly recommended that a
person found guilty of the illegal killing of a rhinoceros or elephant should be
penalised to refund the owner of such killed rhinoceros or elephant at market related
prices.
There is very little time left to save elephants from vanishing forever – South African
Government, please ACT NOW.
Yours sincerely,
[name]
Organizer
Global March for Elephants and Rhinos – Johannesburg [city name]
https://www.facebook.com/events/282033211960356/
http://www.march4elephantsandrhinos.org/
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