Court name
High Court
Case name
S v Voges and Others
Media neutral citation
[1994] NAHC 13



















CASE
NO. CC 143/93



IN
THE HIGH COURT OF NAMIBIA


In
the matter between



THE
STATE


versus




  1. TIMOTHEUS
    PIETER VOGES


  2. JACOBUS
    BAREND LOFTY-EATON


  3. EUGENE
    VAN ROOYEN



  4. FREDERICK
    JOHANNES VOGEL


  5. PIETER
    CORNELIUS JOHANNES KOTZE









CORAM: FRANK,
J.









Heard
on: 1993/11/15, 23, 29; 1993/12/02; 1994/05/17-20,



24;
1994/06/01; 1994/11/16-18, 21. Delivered on: 1994.11.21








JUDGMENT


FRANK,
J.
: The
charges levelled against the accused fall



under
various statutory enactments. The enactments are as follows:











a. The
Nature Conservation Ordinance, Ordinance 4 of
1975 as amended;



b. The
admission of persons to Namibia Regulation
Act, Act 59 of 1972 as
amended;



c. The
Stock Theft Act, Act 12 of 1990 as amended;
and



d. The
Aviation Act 74 of 1962 as amended, as well as
the Riotous
Assembly Act relating to certain
matters concerning aviation.



The
charges pressed in terms of the Ordinance 4 of 197 5 all related to
certain alleged dealings with ostriches. The first issue that falls
to be decided is whether domesticated ostriches are covered by the
provisions of this Ordinance at all.
I
pause
here to mention that it was accepted by all concerned that the
ostriches involved in this matter were indeed domesticated ostriches.
This Court on two previous occasions dealt with the issue and both
the Judges concerned found that domesticated ostriches fell outside
the ambit of Ordinance 4 of 1975. (See
S
v Avanant

delivered by Strydom J.P. and
S
v De Klerk

delivered by O'Linn J.) Unless I am convinced that the judgments are
wrong I am bound by them. Ms Winson for the prosecution submitted
that the judgments were wrong because they were based on
interpretation only without the benefit of expert evidence such as
presented at this trial. She also attempted to persuade me that they
were wrong in law in any event. The reasoning of my brothers Strydom
and O'Linn appears from the judgments and I do not intend reiterating
them. I am not convinced that they are wrong and in fact in my view
the expert evidence presented to this Court tends to support the
conclusions they reached rather than the contrary.






According
to Dr. Huchzmeyer ostrich farming in South Africa for the purposes of
exploiting the feathers started in the mid-nineteenth century. At one
stage an expedition went up to what was then called the French Sudan
to purchase ostriches there so as to introduce them to South Africa
because the plumage of these birds were of a better quality. In
fact in earlier times these birds in the Sudan were
valuable because of a demand for their plumes by the Romans and the
Arabs. Hundred and fifty of these birds were brought into South
Africa. After World War One and the collapse of the feather market
ninety percent of the domesticated ostriches in South Africa were
culled. From this small base the industry was once again built up to
its present position. This process of selection over more than a
century has led to changes in the original ostrich. Thus the
domesticated ostriches today generally have whiter feathers, denser
plumage and are smaller than the ancestors or their wild kin. That
this is so makes sense. The ostriches were formed with for a specific
purpose and it is only natural that the farmers would have
endeavoured to breed them with this purpose (plumage) in mind. Thus
breeding was probably done with a view to eliminate or diminish
certain characteristics and to create or adhance certain other
characteristics.






Apart
from the physical changes already mentioned that this human
intervention brought about a change in the genetics probably also
occurred. The research done by Professor Kirby of the Department of
Biochemistry and Microbiology at Rhodes University seemed to suggest
this. According to him the genetic pool of domesticated ostriches and
wild ones differs and by way of a molecular DNA testing one would
with a ninety seven to ninety eight percent degree of certainty be
able to determine whether an ostrich was a domesticated one or a wild
one. In the result the accused are acquitted in respect of all the
charges under Ordinance 4 of 1975 as amended.







The
charges in terms of Act 59 of 1972 relate to the transport of
ostriches and ostrich eggs from South Africa into Namibia by
aeroplane without the respective pilots following the necessary
legal requirements. Prior to entering Namibia thus for example the
pilots never reported at a passport control office to present their
passports and declare their entry. It is undisputed that the pilots
did not enter Namibia lawfully. The question is whether it was
proved that the accused knew this or foresaw this as a reasonable
possibility. Accused no. 2 was a Director of accused no. 1 who lived
in Windhoek and whereas he might have arranged for the purchase of
the birds and eggs delivered it does not necessarily follow that he
made the arrangements for delivery as it is clear the actual running
of the farming operations were left to employees of accused no. 1.
On the other hand if accused no. 2 made the arrangements, the
employees would only be obeying orders to accept delivery. There is
no direct evidence to show that any of the accused knew that the
pilots entered Namibia illegally. There's also no background
evidence as to why all flights were at night and why the whole
operation was structured as it was as to whether the avoidance of
the South African authorities were a factor or not. Although I
suspect that they all knew that the pilots were in the country
illegally and will even go so far as to say that they probably knew.
This, however is not a civil matter where proof on a balance of
probabilities would have been sufficient and I cannot say that this
is the only reasonable inference even if it is a probable inference.
They are thus all entitled to an acquittal on the charges under Act
59 of



1972.
In the result all the accused are acquitted in respect of all the
charges under Act
59
of
1972
as
amended.








The
charges under the Stock Theft Act were twofold namely, charges
relating to the failure to obtain certain documents from the vendor
of the birds and eggs and charges relating to accepting delivery
of ostriches between sunset and sunrise.








Briefly
speaking ostriches and eggs were on various occasions taken on board
an aircraft in South Africa and flown to a farm in Namibia. It is
undisputed evidence that no documentation whatsoever were exchanged
during these operations and that the carrier was paid by Mr Vorster
who is not one of the accused.






In
respect of both categories of charges press under Act
12
of
1990
the
question of what constitutes delivery is crucial in my view. This is
so because the vendor must furnish the documents "at the time
of delivery" of the stock. The person who "accepts
delivery" may not do so between sunset and sunrise. Coupled
with this is the consideration if delivery was in South Africa then
Act
12
of
1990
would
not apply as it does not operate extraterritorially. See
Rex
v Holm
,
Rex
v Pienaar

1948(1)
SA
95(A).
Thus if the delivery in this matter took place in South Africa, or
there is a reasonable possibility that it took place in South Africa
the accused are entitled to be acquitted on these charges falling
under Act
12
of
1990.



The
relevant parts of sections 5 and 6 of Act 12 of 1990 reads as
follows:











"5.
Any person who for purposes of trade makes or accepts delivery
between the hours of sunset and sunrise of any stock or produce sold
or purchased or otherwise disposed of or acquired by him or her in
any other manner than at the public sale shall be guilty of an
offence.







6.1.
Any person (including any Auctioneer, agent or market master) who
sells, barters, gives or in any other manner disposes of stock to
any other person shall at the time of delivery to such other person
of the Stock so sold, bartered, given or disposed of furnish such
other person with a document."






Although
the word "delivery" may mean the mere handing over. (
Rex
v Roos

1936, GWLD 3) this would normally not be the case and the meaning of
the word must also be read in the context in which it is used in the
legislation. Thus in the Roos Case supra according to the report the
legislation provided that it was "not lawful for any person to
sell, barter, dispose of or deliver a diamond" . As can be seen
the delivery itself is prohibited. In the Stock Theft Act the
delivery
per
se

is not unlawful but delivery is coupled to certain transactions
which are also not
per
se

illegal. It is only if certain conditions pursuant to these
transactions are met that an offence is committed, i.e. documents or
darkness contemporaneous with the delivery.






In
this country as far back as
Rex
v Oscar Harms

192 6 SWA 64 a conviction of "accepting delivery" was set
aside when an agent received liquor on behalf of his principle
and the agent was not licensed "to accept delivery"
whereas the principle was. A cursory look of section 5 of Act 12 of
1990 makes it clear that the delivery must take place pursuant to
one of the transactions mentioned in that section and this is
reinforced by the introductory words to that section that the
transaction must be for the purposes of trade. Thus in the context
"accepts delivery" must mean an acceptance and delivery in
relation to and which recognises a pre-existing contract. Clearly if
a farmer purchases stock and arranges for a carrier to transport it
from the purchaser to his farm and the carrier loads the stock
during daytime but only arrives on the farm after sunset, the
handing over of the stock on the farm is not the "acceptance of
delivery". Similarly if a farmer moves his own stock from his
own farm to his other farm he cannot be said to fall foul of this
section because his one employee receives the stock from his other
employee. Because the acceptance of delivery is linked to the
"purposes of trade" and to certain contractual
transactions the law relating to delivery in the law of contract is
applicable.









In
my view the same applies to section 6 of Act 12 of 1990. It is clear
that the delivery contemplated in that section is delivery pursuant
to some contractual transaction. In the present matter there are
thus more than one possibility. Delivery either took place in South
Africa or in Namibia. The same applies to "accepts delivery"
as the role of Vorster was not cleared up one is in the dark as to
whether he was the seller or an agent of the purchaser. As the
prosecution did not prove beyond reasonable doubt the
delivery took place in Namibia or that the accused accepted delivery
in Namibia the charges under Act 12 of 1990 cannot stand. In the
result all the accused are acquitted on the charges under Act 12 of
1990 as amended.






As
mentioned earlier ostriches and ostrich eggs were flown from South
Africa to a farm in this country on a number of occasions. For the
purpose for this judgment this operation ceased when an aircraft
crashed upon landing at the farm. Sometime after this accident the
engines of the aircraft
was
discovered
under camouflage netting whereas the bulk of the aircraft was found
dismantled and broken up in a well under bales of hay. From the
undisputed evidence it is clear that the aircraft was moved from the
site of the accident and it was basically broken up to be hidden
from public view. Mr Maritz conceded these facts and also conceded
as to the involvement of certain of the accused as far as this
charge was concerned. In my view the concession was properly made.
Accused no. 2 representing accused no. 1 appeared on the scene the
day after the incident. It was only after he consulted with the
owner of the aircraft that it was decided that the aircraft had to
be removed.






It
is abundantly clear from all the evidence that the cargo of this
plane as well as all the others were intended for accused no. 1 and
that accused no. 2 bought the cargo on behalf of accused no. 1.
According to the undisputed evidence of the pilot of the aircraft
accused no. 3 also indicated virtually immediately after the crash
that the aircraft had to be removed. To this extent accused
no. 4 was eventually contacted and he in turn discussed the issue
with accused no's 5 and 6 and they decided to cut up the aircraft.
There is however no evidence that accused no. 5 and 6 ever did
anything after this. Accused no. 4 phoned accused no. 2 in this
regard who we described as "the big boss" and after
talking to him informed the pilot that the aircraft must be gotten
rid of. The owner of the aircraft who flew to the sight of the crash
also testified that he and accused no. 2 agreed to remove the
aircraft albeit for different motives. It is clear that accused no.
4 was a responsible employer and was the one in charge of the day to
day operations on the ostrich farm (not the site of the crash) . One
of the employees even thought he was the owner. It is also clear
that if instructions were given to remove the plane it would have
been given to him. These instructions must have been given as the
aircraft was taken apart and dealt with as previously stated. The
only reasonable inference is that he was involved and thus also did
Mr Maritz properly concede that he together with accused no. 1, 2
and 3 cannot escape conviction on this count. As far as accused no's
5 and 6 are concerned I cannot due to the scarcity of evidence and
the fact that there were clearly also other employees that could
have assisted in the breaking up of the aircraft, say without a
reasonable doubt that they assisted in the breaking up operation
although they probably did. In the result accused no's 1, 2, 3 and 4
are convicted as charged in respect of count 164 and accused no's 5
and 6 are acquitted in respect of count 164.









The
last charge facing the accused was that they incited,instigated,
commanded, or procured the pilot of the aircraft that crashed not
report this to the authorities. In my view the evidence does not
support a conviction on this charge. It is clear that the matter was
discussed by the parties concerned and the effect on the pilot's
commercial flying licence and on the business of his employer if the
crash was divulged played a role in this decision and there's no
evidence whatsoever that the pilot intending to report to the
authorities was dissuaded from doing this by any of the accused, so
as amount to "incite, instigate, command or procure". In
the result all the accused are acquitted on count 165.