IN
THE
HIGH
COURT
OF
SWAZILAND
Crim. APPeal No.37/92
In the matter of
ANTONIO MANANA
vs
THE KING
CORAM
FOR APPELLANT
FOR RESPONDENT
: Hull, C J .
: Mr. Nkambule
: Miss Mabuza
J_U_D_G_M_E_N_T
(29/10/92)
Hull,_C.J.
The appellant Antonio Manana was charged in the Magistrates'
Court at Lubuli with contravening "section 8(1) read with
section 24(1) as read with section 8(2)" of the Game Act
1953 as amended by Act No.4 of 1991.
The nature of the charge was that on 25th July, 1991 in the
Ndzevane area, not being the holder of a licence or permit,
he had in his possession a trophy of a specially protected
species of game, namely two tusks of elephant.
When he appeared before the Magistrate on 24th March, the
appellant said that he understood the charge and admitted
it.
To many people, that would probably seem to be a clear-cut
matter.
2/
- 2 -
In Swaziland, as formerly in South Africa, however, where a
person admits a charge in a Magistrate's Court, the
magistrate must nevertheless (except in the case of veryminor misdemeanours) go on to hear evidence, other than the
unconfirmed evidence of the accused person himself, that
proves that the offence was actually committed.
This requirement is to be found in section 238(1) of the
Criminal Procedure and Evidence Act 1938.
As I understand it, the rule stems the days when persons who
were not trained in law sat as magistrates. Its purpose was
to safeguard, I think, the interests of a person who pleaded
guilty out of ignorance or, perhaps, because of intimidation
in the face of the court or otherwise.
The rule does not apply to cases in the High Court. It no
longer applies to cases before magistrates in South Africa.
There is in my view a very strong case for abrogating the
rule here as well. Today, all magistrates in Swaziland have
legal training.
It is always necessary, when a person
pleads guilty to an offence, for the court to be sure that
he understands fully what he is admitting, and also that the
facts that are admitted by him do constitute the offence
charged.
This is especially so, of course, where the
accused person is not represented by a lawyer.
However,
every
magistrates
can
ensure
this
without
having,
in
case as a matter of course, to hear evidence under
section 238(1).
The requirements of that section place a heavy burden on the
lower courts - and also on the prosecution service and the
police - at a time when in my view it is no longer necessary
3/
- 3 -
to go so far.
Those requirements mean that witnesses have
to be notified and brought to court, and they also mean that
the work of the lower courts takes much longer than it needs
to, thereby adding to their backlog.
If there were no such rule it would be possible, in the
larger court centres, for one magistrate routinely and much
more quickly, when cases are first mentioned, or a guilty
plea has been intimated, to deal with and dispose of cases
in which such pleas are tendered.
This in turn would free
the other magistrates in such centres to get ahead with the
business of trying contested cases, which is the way in
which the work load of cases is often organised elsewhere.
In the present case, the magistrate proceeded to hear
evidence, after the plea of guilty, as he is obliged for the
time being to do under section 238(1).
When the prosecutor had led evidence, and the appellant's
rights had been explained to him, Manana then chose to
testify himself.
He admitted once again that he was in
possession of the tusks. He said that his child had brought
them to him from Mozambique but that he had not know that it
was an offence to have them in his possession.
If he had
known, he would not have allowed the child to leave them.
He said that he had kept them until soldiers had come and
taken them away.
He also said that in his 4 years in
Swaziland he had not broken the law previously.
It was
established that he was a first offender. He was a man of
55.
The magistrate found him guilty as charged and imposed the
minimum mandatory sentence prescribed by law, i.e.5 years
imprisonment without the option of a fine. Then Manana (who
4/
- 4 -
is
now
represented
by
counsel)
appealed
against
his
conviction and sentence.
The first ground of appeal involves a question of statutoryinterpretation .
Section 8(1) of the Act provides (inter alia) that no person
shall "
be in possession of a trophy ..." of any
specially protected game without a valid permit.
No question of the existence of such a permit arises here.
"Specially protected game" is defined in section 2 of the
Act (which in the usual way is the provision in the statute
containing general definitions).
It means any animal named
in the First Schedule.
The elephant is so named.
An
elephant is therefore a species of specially protected game.
The Act contains two other lists of game - "Royal game" and
"common game" - which are set out in the Second and Third
Schedules respectively.
One apparent reason for the separate schedules is that there
are particular provisions in the Act governing one or more
kinds of game but not others.
The schedules therefore
provide a convenient way of referring to each category as
necessary.
It is clear that, as their name itself rather suggests, the
legislature regards offences relating to specially protected
game as being more serious than those relating to other
categories.
The penalty for contravening section 8(1) - a
term of imprisonment of not less than 5 years but not more
5/
than
15
years, without
the
option
of
a fine
- is much
heavier than any of the other penalties, and is in itself a
very stringent penalty.
Section 2 also defines the word "trophy" as meaning (inter
alia) "any animal .... dead or alive, mentioned in the
Se£ond and Third Schedules or any part of any such animal
.... (Emphasis added).
It can therefore be seen that the definition in section 2
does not refer to parts of a specially protected animal,
such as the tusks of an elephant.
On this basis, it is argued by counsel for the appellant
that the possession of elephant tusks is not an offence
under section 8(1) (as read with section 8(2) which simply
proceeds to declare as an offence a contravention of
subsection (1) and to impose the penalty). The contention
is that the word "trophy" - in section 8(1) as elsewhere can only refer to a part of an animal that is either Royal
game or common game (as described in the Second and Third
Schedules) .
Counsel prays in aid of his submission the
oft-cited
principle
that an enactment
establishing
a
criminal liability must be clear and unequivocal.
He
maintains also that the intention to create a criminal
offence by section 8(1)(and section 8(2)) is manifestly
excluded
by
the
other
provisions
of
the
Act, and
specifically by section 2.
This is the first ground of appeal. An unusual feature of
the case is that Crown Counsel agrees with the submission,
and further that when the learned Magistrate came to set out
his reasons for the purposes of the appeal, he himself
concluded that he had been in error in this respect in his
judgment.
In other words, he also agrees now with this
submission by the appellant.
6/
- 6 -
With respect,
unsound.
however,
I
think
that
the
submission
is
In section 8(1), which is a substantive provision, the
legislature has stated that no person shall be unlawfully
"in possession of a trophy of any specially protected game".
In subsection (2), it has stated that it is a criminal
offence to contravene subsection (1). If these subsections
are taken in isolation, there is no ambiguity about them at
all.
Taking the subsections in isolation they do give rise
to a question as to what institutes a "trophy" - but taken
in isolation, in the absence of a relevant definition
section, that word would fall in accordance with ordinary
principles of interpretation to be given its ordinary
meaning.
There are other specific provisions in the Act in which the
legislature has referred to tropies of specially protected
game - for example, section 16(2) and section 19(1). There
is at least one other section, i.e. section 16(1), which
refers to trophies of game at large in circumstances that
clearly contemplate (inter alia), by reference to section
16(2), trophies of specially protected game.
It would seem odd, having regard to the general scheme of
the Act, and to ordinary considerations of common sense,
that as a matter of legislative policy a person should be
guilty of an offence by reason of taking the horns of a
reedbuck, but not guilty of an offence by reason of having a
lion skin, the horn of a rhinoceros or the tusk of an
elephant (lions, rhinoceros and elephants being specially
protected game).
In my judgment that is not the true meaning of the Act.
7/
- 7 -
The argument on behalf of the appellant depends in essence
on the validity of a supposition, namely that the definition
of "trophy" in section 2 contradicts or is inconsistent with
section 8(1).
But
the
fallacy
supposition.
at all.
in
the
argument
lies
in
that
very
There is no sematic or logical inconsistency
The definition of "trophy" in that section deals
only with the meaning of the word in relation to Royal game
and common game.
It does not, in itself, purport to define
the meaning of "trophy" in relation to specially protected
animals.
Moreover, even on the language of section 2 as a
whole, it does not purport to define "trophy" exhaustively.
The section is modified by the usual introductory words "In
this Act,
unless
the
contex
otherwise
requires....."
In the appeal that followed this case yesterday, as it
happened, counsel had occasion to cite two cases in point
for the propositions that definition sections do not
necessarily apply to every context in which a word may be
used in an Act, and that if a defined word is used in a
context in which the definition will not fit, it may be
interpreted according to its ordinary meaning: see (1)
Commissioner for Inland Revenue v Simpson 1949 (4) SA 678
(AD) and (2) Brown v Cape Division Council and Another 1979
(1) SA 589(AD) at 601 per Hofmeyer JA.
Here the context plainly requires otherwise, and according
to the ordinary meaning of the word "trophy" in relation to
an elephant it also plainly includes, in my view, the
animal's tusks.
This ground of appeal is therefore rejected.
The second ground of appeal against conviction was that
although the magistrate heard evidence after the appellant's
8/
plea
of
guilty,
that
evidence
did
not fulfill
the
requirements of section 238(1) of the Criminal Procedure and
Evidence Act 1938.
The soldiers who were said to have seized the tusks were not
called by the prosecution as witnesses.
Although the
appellant himself went into the witness box and admitted on
oath that he was in possession of the tusks, the magistrate
ought not to have required him to do so, especially as he
was unrepresented.
At the close of the prosecution's
evidence, it had not been proved (otherwise than by the
unconfirmed evidence of the appellant as the accused person)
that an offence of the kind charged had actually been
committed.
The prosecution had called two witnesses.
The first was
Sub-Inspector Mdluli of Lubili.
His evidence was that on
25th July the appellant was brought before him by members of
the Umbotfo Swaziland Defence Force who also handed over to
him two tusks "together with the accused". He said that he
asked the appellant to produce a permit for the tusks but he
failed to do so. Mr. Kontsho Vilane, who was a game ranger,
testified that the items produced as elephant tusks by the
Sub-Inspector were indeed elephant tusks.
There was also the evidence, as such, from the appellant
himself, that the tusks had been in the possession of his
child.
There is no evidence that anyone had a permit for the
possession of the tusks in Swaziland. The burden of proving
that a person has such a permit lies on a person charged
with unlawful possession of the tusks: see section 271 of
the Criminal Procedure and Evidence Act 1938. (I put that
proposition as a general principle and not in relation to a
specific obligation of the accused in this case to produce a
licence) .
9/
- 9 There was therefore before the magistrate, in my view, prima
facie evidence that an offence had been committed under
section 8(1) and (2) of the Game Act in respect of the
tusks, quite apart from the issue whether the appellant was
the offender.
The evidence of the prosecution witnesses
alone was in my view sufficient to establish that prima
facie, although I also think it is permissible to have
regard to the appellant's own evidence, not as to the fact
that he came into possession of them, but as to where they
came from.
Accordingly, the second ground of appeal against conviction
is also dismissed and the conviction is confirmed.
As to the appeal against sentence, I want to say this. The
offence occurred as long ago as July of 1991.
Although
triable in a summary manner, the case was not heard for some
8 months. Another 6 months have gone by. In the meantime,
the appellant has been on bail, which was a matter of his
own choice. Nevertheless, he is a man who is beginning to
approach his old age - at least it is coming into focus. He
is a first offender.
His account that his child left the
tusks with him was not challenged. He pleaded guilty to the
charge at the outset.
The legislature, by enacting the Game Act as amended in
1991, has clearly
indicated
its
intention that game
violations, of the kind now in issue, are to be regarded as
very serious offences. There is, however, as is well known
to everyone who is involved in the administration of the
criminal process, a distinction to be drawn between criminal
liability - which is measured by the imposition of a
conviction - and on the other hand the degree of criminal
blameworthiness, which is measured in terms of sentence.
All developed systems of criminal justice recognise these
differences.
It is for that reason that they provide for a
measure of judicial discretion in sentencing.
10/
- 10 This was clearly, as the magistrate's sentence indicates, an
offence at the lowest end of the scale.
It has not been
shown, or even suggested,
that the appellant was a
participant
in
a trophy-trafficking
operation.
The
mitigating factors that I have already mentioned are very
much in his favour.
If I were free to do so I would, keeping in mind the
legislature's clear concern about this kind of offence,
impose the minimum sentence of 5 years, suspending 4 years
of it however, on condition that the appellant does not for
3 years after his release from actual custody commit another
offence under the Game Act or in respect of protected fauna.
In this case neither the magistrate nor I could do so.
legislature
has
expressly
provided
that
terms
imprisonment under the Act are not to be suspended.
The
of
I regret that I cannot do so. Five years is in my view a
very harsh sentence in the circumstances of the case for an
ageing man of 55 years.
I cannot help but observe in
passing that the minimum penalty for possessing elephant
tusks unlawfully is much higher than that for homicide, but
that is the law, which the courts are bound by. The appeal
against sentence is dismissed and the sentence is confirmed.
It may be that the responsible authorities will, however,
consider at an appropriate time the exercise of a measure of
clemency.
David Hull
CHIEF_JUSTICE