Court name
High Court
Case name
S v Avenant and Another
Media neutral citation
[1994] NAHC 2















CASE
NO. CC 132/93


IN
THE HIGH COURT OF NAMIBIA















In
the matter between









THE
STATE


versus



JOHANNES
PIETER AVENANT HENNIE VAN DER MERWE








CORAM:
STRYDOM, J.P.









Heard
on:






Delivered
on: 1994/02/28








JUDGMENT



STRYDOM,
J.P.
:
The
two accused were initially charged with 75 counts of contravention of
various acts, a proclamation and an Ordinance. They pleaded not
guilty to all these charges.









After
the State's case was closed Mr Du Toit on behalf of the accused
applied for their discharge on all the counts. Their application was
successful in regard to the majority of the counts so that when the
defence started with its case, the only counts remaining were the
following, namely:











(1)
Counts 12, 24, 37, 49, 61 and 73 which concerned contraventions of
Section 32 of Act 59 of 1972, that is the administration of persons
to Namibia Regulation act, and



(2)
Counts 2, 14, 27, 37, 51 and 63. These counts all deal with the
wrongful and unlawful importation of game or wild animals into
Namibia in contravention of Section 49 of Ordinance 4 of 1975.






In
this judgment I will therefore only deal with the evidence applicable
to these various charges set out above. Mr Small on behalf of the
State, relied mainly on the evidence of farm employees who were at
the relevant dates employed either by accused no. 1 or the brother of
accused no. 1, Mr Willem Avenant, who farms on the farm Biesiepoort
in the Republic of South Africa. At this stage it is perhaps
necessary to give a geographical outlay of the farms which play a
role in these proceedings. The farm Kotzedal consists of three
portions, namely Kotzedal no. 1, no. 2 and no. 3. Kotzedal no. 1 is
the property of accused no. 1 which he inherited from his father.
Kotzedal
2,
or
as it's generally known as Witpan is also the property of accused no.
1. This property lies to the south and is adjacent to Kotzedal no. 1.
The eastern boundary of Witpan coincides with the eastern border
between the Republic of Namibia and the Republic of South Africa.
Immediately east of this border and adjacent to the farm Witpan lies
Obobogorob, the farm of one Botha. Kotzedal no. 3 lies immediately
east and adjacent to Kotzedal no. 1. The eastern boundary of this
farm coincides with the eastern border of Namibia, and directly
opposite and adjacent thereto lies the farm Biesiepoort in the
Republic of South Africa. Immediately to the south of Kotzedal 3 lies
the farm Witpan and immediately south of Biesiepoort on the South
African side lies the farm



Obobogorob.









The
four farms, namely Kotzedal 3 and Witpan on the Namibian side and
Biesiepoort and Obobogorob on the South African side, meet at the
south-eastern corner of Kotzedal no. 3. This spot is marked with a
circle in ink on EXHIBIT F. Biesiepoort and Kotzedal 3 belong to Mr
Willem Avenant, the brother of accused no. 1. Evidence was led that
prior to Independence Kotzedal no. 3 was incorporated into
Biesiepoort. The significance of this seems to me that many people,
at least also the farm employees, regarded mistakenly the boundary
between Kotzedal 1 and Kotzedal 3 as the Namibian/South African
border. It was also common cause that the border fence between
Kotzedal 3 and Biesiepoort and therefore between Namibia and South
Africa was non-existent for a distance of ± 2 km. This has been so
for as long as accused 1 could remember. It is also common cause that
a farm road runs from Biesiepoort through this opening to Kotzedal 3
and 1. On the boundary between Kotzedal 3 and no. 1, two gates marked
A and B on EXHIBIT F, give access from the one to the other farm. It
is also common cause between the State and the Defence that the
nearest border post where people could legally pass from and into
Namibia is situated on the farm Hollweg which, so it seems to me,
lies immediately south of the farm Witpan. A further aspect which
must be mentioned at the outset is the relationship between the two
accused.









Accused
2 is the son-in-law of accused no. 1. He farms in the region of
Nuniput in the Republic of South Africa.



However,
for two to three days per week he assists his father-in-law, accused
no. 1 with his farming operations on the farms Kotzedal no. 1 and
Witpan.






Against
this background I now wish to deal with the evidence respectively
presented by the State and the Defence.









The
first witness called by the State was Detective Sergeant Steyn, a
member of the South African Police, stationed at Upington. Steyn is
or was involved in police action on the part of South Africa to
investigate and prevent alleged smuggling of ostriches from South
Africa. In line with his duties Steyn held observation on the night
of the 30th June 1993 at the road junction of Nakop and Gemsbokpark.
At about 3:15 that night he saw a Mercedes Benz truck and trailer
with ostriches passing him. He in turn drove past the truck, and lay
in wait for it further along the road. When the truck again passed
him, he recognized the driver as one Willem van Wyk who, at that
stage, was in the employ of accused no. 1. He later on also
established that the truck and trailer belonged to accused no. 1.
Steyn followed the truck and saw it turning into the farm
Biesiepoort. From a dune he could see the farm buildings and saw the
ostriches being off-loaded at Pens near the homestead. Later the
truck and trailer passed him again in the direction of Nuniput.
Sometime later another truck, this time a horse and trailer with a
Bethlehem registration number, moved towards Biesiepoort. As a result
of a report Steyn went to Obobogorob on 13 July. Photographs of
various points were taken and handed in to



Court
as EXHIBIT B together with a sketch plan of the area showing the
various points. At point A on this sketch plan, the entrance to the
farm Langvlei, which again is a neighbouring farm of Obobogorob, the
witness picked up the tracks of a truck. He followed this on the road
to Obobogorob. On the way he saw droppings on the side of the road
like that of ostriches, point B, photo 4. The witness further found
the tracks of the truck at Point C, the entrance gate to Obobogorob,
where the tracks indicated a turn made by the truck. The truck did
not go through the gate. Again ostrich droppings were seen at this
gate. Here the witness also found a blood spot on the ground. See
EXHIBIT BIO. The witness then followed the tracks of ostriches in the
direction of the Namibian border. These tracks were parallel with the
fence and there were also vehicle tracks which were also parallel
with the fence. At point G where a camp fence intersected the
boundary fence of Obobogorob, the witness found that three of the
wires from the bottom were cut whereas the top ones were only
loosened and then slightly fastened again. The tracks of the car also
crossed the fence at point F as described by the witness. The witness
further followed the tracks up to point I which is a jackal-proof
fence and a fence which forms the border between Namibia and South
Africa and which is also the boundary between Obobogorob and Witpan.
Here again Steyn saw that the fence was loosened and that some of the
wires were not properly fastened. On the other side of the fence, the
witness saw tracks of a vehicle and motorcycle as well as footprints
of people, and some faint marks of ostriches. On 14 July Steyn
accompanied members of



Nampol
and Nature Conservation to the farm Masbieker where the witnesses De
Koker and one Manfred Both pointed out certain places. Here he saw an
ostrich with an injury on the back of its right leg. He also saw an
ostrich whose wings were fastened with string. On 28 July, the
witness visited the farm Biesiepoort where certain places were also
pointed out to him by one Jan Minnies. Again photographs were taken
and a sketch plan of the area was prepared, EXHIBITS D and E. This
witness also erroneously accepted that the boundary fence between
Kotzedal 1 and 3 was the border between Namibia and South Africa.








The
next witness tendered by the State, was Willem de Koker. According to
him, he was born and grew up on Kotzedal and he worked there.
However, at the time of the incident he had worked there only for a
period of three years. After the incident he left the employ of
accused no. 1. He stated in evidence that he worked on Kotzedal no. 1
with Bernard Jansen, Manfred Both and Abraham Diedericks. He
testified that on five occasions he and the three other farm workers
were taken to the farm Biesiepoort where they collected ostriches in
the pens at the homestead and drove them along the gravel road to
various camps on Kotzedal no. 1. On the first occasion they were
taken there by accused no. 2 in a white 4X4 Hi-lux truck. At
Biesiepoort they were assisted by Mr Willem Avenant, Jan Minnies and
Hans Eiman. The latter two were employees of Mr Willem Avenant. These
ostriches, ± 40 in number, were placed at the Volkshuis camp near
the homestead of Kotzedal no. 1 and later removed to newly-built
camps. On the second occasion they again received
instructions from accused no. 2 as a result whereof they went to
Biesiepoort, again with accused no. 2 and with the 4X4 Hi-lux truck.
This time there were 42 ostriches in the pens at Biesiepoort, and
they were again assisted by Messers Willem Avenant, Jan Minnies and
Hans Eiman. On this instance the ostriches were driven to Witpan. The
ostriches were left in a kraal at Witpan, where they were loaded onto
the Mercedes Benz truck of accused no. 1 and on this occasion accused
no. 1 and the driver of the truck, one Willem van Wyk, were present
when the ostriches were loaded. Subsequently the four workers with
Willem van Wyk transported the ostriches through Koes to Tweerivieren
road to an unknown farm where the ostriches were off-loaded. On this
farm they found a short white man with black hair who was
bald-headed. On this farm there were a loading pen and various
kraals. On the third occasion the four workers were again instructed
by accused no. 2 to go to Biesiepoort. They again went with the 4X4
Hi-lux truck, accompanied by accused no. 2. The number of ostriches
were 50 and they were taken to the Soutpomp camp on Kotzedal no. 1.
On the fourth occasion which was the next day, they again accompanied
accused no. 2 to Biesiepoort where they found 22 ostriches. At
Biesiepoort they were again assisted by Messers Avenant, Minnies and
Eiman. Accused no. 2 remained behind and the four of them drove the
ostriches again to the Soutpomp camp. The ostriches were left in this
camp on the instructions of accused no. 1. On the fifth occasion the
four workers, this time accompanied by accused no. 1, went to
Biesiepoort to collect ostriches. This time they also took a
motorcycle along. At Biesiepoort there were about



100
ostriches in the kraal. Again they were assisted by Messers Avenant,
Minnies and one Oubaard. These ostriches were taken to the Grasvlei
camp on Kotzedal no. 1. He, de Koker, was given the motorcycle to
assist in the driving of the ostriches to Kotzedal no. 1. De Koker
also testified about a sixth occasion when ostriches were fetched
from Obobogorob in the Republic of South Africa. On this occasion
instructions were given by accused no. 2 and the four employees
together with accused no. 2 went with the truck through Witbank to
the international border. He, Abraham Diedericks and accused no. 2
loosened the fence and went over to the Republic of South Africa.
They went through a gate in a fence to a place where they met accused
no. 1 with his truck and bakkie and where they off-loaded ostriches
from the truck. The truck driver was again Willem van Wyk. There were
47 ostriches. They drove these ostriches all along the fence. Accused
no. 1 and his truck driver went via the Main road back to Witpan. One
ostrich with an injured right leg was transported on the bakkie by
accused no. 2. The fence was again loosened by accused no. 2 and
Abraham Diedericks so they could get through with the ostriches.
These ostriches were again loaded on the truck at Witpan and
transported to the unknown farm. According to the witness the
instruction to go to Obobogorob was given by radio by accused no. 1
to accused no. 2. This witness furthermore testified that he
subsequently pointed out various places to Mr Uys of Nature
Conservation,
inter
alia
the
farm Masbieker to where the ostriches were transported on two
occasions. He was also shown the photo album, EXHIBIT B, and was
able to recognise most of the places on the photos. On Masbieker the
witness also identified to Mr Uys the ostrich with the injured leg as
well as the ostrich whose wings were fastened with a string. The
witness said that he and Bernard Jansen had fastened the wings.






In
regard to the second occasion when they went to Biesiepoort to fetch
ostriches the ostriches were, on their arrival, still on the truck
usually driven by Willem van Wyk. This witness further testified that
on none of the occasions on which they had to cross over from Namibia
to South-Africa did they leave or enter Namibia at the border post.









In
regard to the transporting and driving of ostriches the State also
presented the evidence of Mr Jan Minnies, who was an employee of Mr
Willem Avenant, the brother of accused no. 1 and who worked on the
farm Biesiepoort during the relevant time. He testified that he
knew the workers of Kotzedal no.




  1. and
    that during June-July, they came to Biesiepoort to collect
    ostriches. These ostriches were brought to Biesiepoort in the truck
    of Mr Johan Avenant, accused no. 1. He said that accused no. 2
    accompanied the four workers and the ostriches were taken out on the
    gravel road to Namibia. His employer, Mr Willem Avenant, assisted in
    driving the ostriches out. On the first occasion they took 30
    ostriches and on the second occasion 22. On this occasion accused
    no.



  2. was
    again present. The third time, a number of 50 ostriches were brought
    in the truck, and these were again taken away by accused no. 2 and
    the four workers. Then there was a further occasion where
    150 ostriches were brought by truck. On this occasion accused 1
    was there with his four workers, and they also brought a motorcycle.







The
witness De Koker was the one who used the motorcycle. According to
this witness the ostriches were brought there with the Mercedes Benz
truck driven by Willem van Wyk, except for the occasion when the 150
ostriches were brought to the farm. They were brought there in
another truck which was closed. It was also, according to the witness
a loose head truck, meaning thereby a horse and a trailer. This truck
only came there once.









The
witness Abraham Diedericks is again an employee of accused no. 1 and
when he gave evidence he was still so employed. To his knowledge
there were only two ostriches in the field on Kotzedal no. 1 and he
also knew of 14 other ostriches on the farm. He further testified
that he and accused 2 once went to fetch ostriches at Biesiepoort.
These ostriches were in the kraal on Biesiepoort. They were brought
to the Soutpomp camp. Again, on another occasion, the group,
accompanied by accused no. 2, went to Biesiepoort where they fetched
ostriches and brought them to the Soutpomp camp. He said there were
many but could not say how many. There was, according to the witness
yet another occasion on which they, together with accused no. 1 and
2, went to Biesiepoort to fetch ostriches and these were taken to the
Grasvlei camp on Kotzedal no. 1. The witness denied that he was ever
transported in the truck, presumably the Mercedes Benz truck, and as
a result whereof the State then put to him the contents of two
statements made by him to Mr



Uys.
In cross-examination the witness said that they were threatened by
Uys and Handley that if they do not tell them certain things they
would be detained. Later on, according to this witness, they were
confronted with the statement made by the witness De Koker. In
conclusion the witness stated that it was not true that the accused
were importing the ostriches from South Africa.






The
last employee of accused no. 1, who was called by the State, was
Bernard Jansen. He was also at the time when he gave evidence still
an employee of accused no. 1. He testified that during June/July he
together with the other three employees and accused no. 2, went to
Biesiepoort to fetch ostriches. They drove there in the Hi-lux truck
by means of the gravel road. At Biesiepoort they were assisted by Mr
Willem Avenant and the latter's two employees, Jan Minnies and Hans
Eiman. These ostriches were left at the Soutpomp camp. The witness
also described the second instance where they, that is the four
employees with accused no. 2, went to Biesiepoort to collect
ostriches. Again they were assisted by Willem Avenant and his two
employees. These ostriches were also placed in the Soutpomp camp.
These ostriches were then transported in two pick-ups to the
Volkshuis camp. There was a third occasion, when they, together with
accused no. 2 went to Biesiepoort and brought back ostriches. These
ostriches were eventually taken to loading kraals at Witpan where
they were put onto accused no. l's truck. Willem van Wyk was present
at this stage. These ostriches were then transported through Koes to
the farm Masbieker where they were off-loaded. At this farm
there was a short white man. Subsequently they again all went to
Biesiepoort to collect ostriches which were again taken to the
Soutpomp camp. There was yet a fifth instance where, according to
this witness, they went to Biesiepoort to collect ostriches. On this
occasion there were ± 100 ostriches which were taken to the Grasvlei
camp on Kotzedal no. 1. On this occasion accused no. 1 was also
present. On a sixth occasion, all of them accompanied accused no. 2
to the farm Obobogorob. They drove through Witpan and when they came
to the border they loosened the fence and went into the Republic of
South Africa. After they went through two camps they came to the
Mercedes Benz truck of accused no. 1. Here they also found Willem van
Wyk with two helpers and accused no. 1. Ostriches were unloaded and
driven to Witpan. There they were again loaded onto the truck and
taken to Masbieker. In cross-examination the witness said that they
initially denied any knowledge when they were arrested by Uys. But
that they were then told that De Koker had already told the truth and
they then later said the same as De Koker. He also agreed that there
were various instances where they had to go to Kotzedal 3 to retrieve
ostriches which had strayed away from Kotzedal no. 1. Finally on this
aspect of the case the State tendered the evidence of Chief-Ranger
Uys, an employee in the Ministry of Wildlife Conservation and
Tourism. He said that on the 26th May 1993 his office received an
application from accused no. 1 to catch ostriches. Head office
Windhoek then instructed that an inspection should be carried out.
This is done in order to determine the condition of the farm
boundaries and the number of game on a particular farm. Uys said
the normal procedure is that after instructions were received from
Windhoek he then makes an appointment with the particular applicant.
He therefore contacted accused no. 1 and they made an appointment for
1 July. This date was later changed to 8 July. The inspection was
held and the witness was shown about 75 ostriches in the Soutpomp
camp, at Grasvlei about 127 to 130. At the farmstead there were about
30 ostriches as well as 13 or 14 domesticated ones. As a result of
information received by him, he went to Kotzedal no. 1 during the
early hours of 13, 14 July. He went to the employees' houses after he
could not find anybody at the farmstead. He interrogated the workers
and either De Koker or Jansen first admitted what had happened.
Thereafter the two accused were arrested and taken to Aroab. Because
of the reports made by either Willem De Koker or Jansen he then,
together with these two, went to search for the farm where ostriches
were delivered. They pointed out the farm Masbieker where he also
found a loading pen and kraals. One of the people on the farm, Mr
Wessel Wessels, is a short man with a bald head. There were big
kraals on the farm which were full of ostriches. The witness
inspected the ostriches. One had broken wings and another was injured
on the leg. The witness confiscated a number of ostriches as well as
three ostrich skins. After information received Uys again took
statements of the four employees. As a result of this certain
ostriches were pointed out to the witness on the farm Kotzedal no. 1
and he further confiscated 220 ostriches and one skin. Various other
places concerning the importing of ostriches from the Republic of
South Africa to Namibia were pointed out by the witnesses to Uys.
Photographs were taken and handed in as EXHIBITS Q and R. This
witness testified in cross-examination that the pointings out were
made by the witnesses simultaneously therefore in the presence of
each other. He also further explained that he referred to the
ostriches as domesticated because they appeared to be so to him.
Uys then concluded the State's case.






There
are certain witnesses to whose evidence I have not referred. This
evidence is of a formal nature and I will later refer thereto if it
is necessary.









The
defence started their case with the evidence of Mr F.D. Alexander who
gave evidence of his extensive experience of the raising and farming
of ostriches. It seems that he is frequently consulted to advise
people in the ostrich industry and farming. Mr Alexander was taken to
inspect the ostriches confiscated by Mr Uys. He said that he found
nothing to contradict the allegation that these ostriches were
Namibian ostriches raised on a Namibian farm over a generation or
two. He also saw nothing that contradicted the averment that the
ostriches spent their time in camps or in the veld on a Namibian farm
and that some of them, from time to time, received green fodder at
the homestead or also in the veld. Mr Alexander said that the
ostriches were not of the blue neck variety which are mostly found in
the game parks in Namibia. Nor were they typical South African
ostriches. This opinion was based on the fact that the curls of the
feathers of the males were not evenly distributed throughout and
because there were too many inferior quality birds amongst
those he saw. This showed, according to the witness, that no proper
culling was done. One would expect this lack where birds are born in
the veld. The witness said that he drew the conclusion that
especially the wilder birds must have been born and bred in Namibia.
In cross-examination the witness said that in respect of some of the
birds he had the feeling that they were definitely domesticated and
used to human beings. At a stage the witness conceded that the
ostriches he saw could just as well have been raised in South Africa.
In re­examination Mr Alexander stated that the ostriches he saw
were not Black African, the South African variety, nor Blue Neck, the
Namibian variety, but mostly a cross between the two.









Mr
Avenant, accused no. 1, testified that as long as he can remember,
there were hundreds of ostriches on Kotzedal, so that at some stages
it was necessary to cull them. At a stage his father introduced other
ostriches which he had bought in the Republic of South Africa. There
were at the relevant time about 250 ostriches which he wanted to
catch and keep in smaller camps for possible export at a later stage.
On 24 May 1993 he applied for a permit to catch 150. He expected an
inspection by Nature Conservation to take place within days. When
this did not happen he phoned the office where he spoke to a Mr van
Alphen who assured him that he could continue with the building of
smaller camps. The inspection took place eventually on the 8 May, but
on the morning of the 13 July he was arrested by Uys. After he was
again released he was told by De Koker that he did not want to make a
statement against the accused, but that he was threatened by Uys that
he would be locked up if he did not do so. He said that the ostriches
which were seized were born on Kotzedal and that none were imported
from South Africa. The witness also explained that at one stage there
were problems between him and the witness De Koker, and that he
terminated De Koker's services. Only after the intervention of De
Koker's father the accused no. 1 decided to change his mind. The
accused then explained that at least on four occasions the ostriches
belonging on Kotzedal no. 1 broke out and strayed onto Kotzedal no.
3, that is the portion of Kotzedal which belongs to his brother, Mr
Willem Avenant. These ostriches were each time retrieved and brought
back to Kotzedal no. 1 by his workers. On three occasions his
son-in-law, accused no. 2, assisted. He, accused no. 1, was only
present on one occasion when ostriches were retrieved from Kotzedal
no. 3. He further said that he once made his truck and driver
available to his brother Mr Willem Avenant, to transport ostriches
for the latter to the farm Biesiepoort. He was later informed that
some 42 ostriches were brought to Biesiepoort.









The
accused further testified that ostriches broke through to Obobogorob.
This was after he saw some lambs on Witpan killed by a jackal. He
instructed accused no. 2 to follow the tracks. They followed these
tracks into Obobogorob but had to return because it became dark. They
again continued the search the next day. The accused himself went to
the farm Langvlei to collect his bull. He arranged with the driver of
the Mercedes Benz which was coming from Upington to meet him there in
order to bring back the bull. When accused went into the camp at
Langvlei he saw ostriches in Obobogorob. He said that he told Mr
Pauli, the person who borrowed the bull from him, and whom he
presumably met on Langvlei, that it looked like his ostriches. He
then by radio instructed accused no. 2 to discontinue the jackal hunt
and to fetch the ostriches. These ostriches were then returned. The
accused denied that any ostriches were taken to the farm Masbieker.






The
last witness of the defence was Mr J.C. Theron, a Principal Animal
Health Inspector. The farms Kotzedal are in his inspection area. He
regularly visited the farms at least twice a year. Except for a
period of 18 months in between, he had visited the farm since 1984.
He said he saw ostriches on the farm and in 1991/1992 he saw a lot of
ostriches, about 70. He described De Koker's evidence that before
1993 there were only three ostriches on the farm as nonsense. The
witness would also not be surprised to learn that during 1992/1993
there were as many as 250 ostriches on the farm.









Accused
no. 2 did not give evidence under oath.









In
general the following issues can be accepted as common cause between
the State and the Defence.











(1)
That the farms Biesiepoort and Obobogorob as well as Langvlei are
situated in the Republic of South Africa, whereas the farms Kotzedal
1, 2 and 3 are in Namibia.




  1. That
    Kotzedal 3 is the property of the brother of accused no. 1, Mr
    Willem Avenant, and that, perhaps as a result of this, the employees
    of accused no. 1 regarded the dividing boundary between Kotzedal 1
    and 3 as the border between Namibia and South Africa. Steyn also
    made this mistake.



  2. If
    one goes with the gravel road which is shown on EXHIBIT F from
    Kotzedal 1 through Kotzedal 3 to Biesiepoort you do not pass a
    border control post. The nearest border control post is the one
    situated at Hollweg.







The
State's case depends heavily on the evidence of Willem De Koker. He
testified to six instances where ostriches were brought from the RSA
onto the farms Kotzedal no. 1 or Witpan. Five of these instances were
from Biesiepoort and one from Obobogorob. Strong, and in certain
respects valid, criticism was levelled at the evidence of De Koker by
Mr Du Toit. There is his evidence that prior to the influx of
ostriches from the RSA there were only three other ostriches on the
farm Kotzedal 1 and 2. He later on changed this to include also 14 or
15 other ostriches which accused no. 1 had obtained from a Mr Biggs.
Other than this he was adamant that there were no other ostriches on
the farm. In this regard he was however supported by Diedericks. This
evidence stands in contrast to those of accused no. 1 and also the
witness Theron, who testified that there were always other ostriches
on the farm, and during 1991/1992 the latter saw as many as 70
ostriches.









It
was put to De Koker that he had an altercation with
accused no. 1 which ended in a physical fight. He denied this. If
this did occur, it did in my opinion not play any part as far as the
evidence of De Koker is concerned, because he only implicated accused
no. 1 on two occasions. If he was out to take revenge by fabricating
evidence one would have expected him to implicate accused no. 1
rather than accused no. 2 with whom he had no problems.






De
Koker* s evidence does not stand alone. As far as the Biesiepoort
incidents are concerned, his evidence is at least supported by Jan
Minnies and to a certain extent also Jansen and Diedericks.









Minnies
also testified to four occasions on which ostriches were brought in
accused no.
l*s
Mercedes Benz truck to Biesiepoort, and once by a horse and trailer
which was closed up. In this regard the evidence of Steyn is also
relevant. He testified that when he kept observation on the 30th June
1993 ostriches were off-loaded from accused l's truck into the kraals
at Biesiepoort and that he also saw a horse and trailer which was
closed going into the farm. Minnies also testified of an occasion
when 100 or more ostriches were off-loaded that accused 1 was present
on that occasion and that this was the occasion on which De Koker had
the motorcycle. Minnies's evidence is not above criticism. It must be
remembered that he was out on parole at the time, and that a certain
amount of pressure was put on him. Minnies, as Diedericks and Jansen
were in a very difficult position. On the one hand they were
pressurised to tell what happened. On the other hand, depending on
what they would say, it could mean that they may lose their jobs and
be without livelihood for themselves and their families. The
statement of Minnies was handed to the defence. This concerns the
number of times that he insisted he drove ostriches to the Namibian
border. Although De Koker was never directly asked in this connection
I gained the impression from his evidence that Minnies and Eiman only
assisted in bringing the birds on route to Namibia and that they did
not further assist in driving the ostriches to Namibia. In this
regard Minnies seems to me to be telling a lie. It was also put to
him by Mr Du Toit that according to the evidence of De Koker he was
not present on two occasions when they came to fetch ostriches. This
must have been a misunderstanding because I could find nowhere in De
Koker's evidence any reference thereto that Minnies was not present
when they collected the ostriches on the five occasions. Minnies
testified that he was present every time and that is also the
impression I gained from the evidence of Diedericks and Jansen.









Jansen
and Diedericks, and especially Diedericks, were very reluctant
witnesses. They were still at that stage in the employ of accused no.
1.
These
two witnesses were very ably cross-examined by counsel and they
agreed with almost every statement put to them by Mr Du Toit. The
circumstances and the background against which they testified, must
in my opinion be taken into consideration. Sight must however also
not be lost of the fact that they were State witnesses. In this
regard I accept the fact that they were put under some pressure by
Uys to make statements and that when they were reluctant they were
confronted with the statement of De Koker.









Jansen's
evidence, in this regard, is significant. It was put to him by
counsel that he was confronted with De Koker's statement. His answer
was, first they confronted us which we denied and then, at a later
stage we then told the truth. The witness was further cross-examined
and he agreed that eventually he told Uys what the latter wanted to
know. This witness also said on a question by the Court that when he
and De Koker went with Uys in search of the farm Masbieker that that
was not the first time that he visited the said farm. In this regard
he at least supported De Koker's evidence that they went with the
truck and the driver van Wyk on an occasion to the farm Masbieker.









De
Koker's evidence in connection with the Obobogorob incident was to a
great extent corroborated by the witness Steyn, who found the tracks
of the truck, the loosened wires and fences, the spoor and droppings
of ostriches and the blood spot on the ground.









It
is correct as was argued by Mr Du Toit, that this evidence is also
corroborative of the evidence of accused no. 1 where he related the
incident when ostriches broke through Kotzedal to Obobogorob.
However, De Koker's evidence went much further and he testified how
these ostriches, including the two with the injured leg and the
broken wings, were transported to Masbieker where they were found on
the 13 or the 14 July by Uys and Steyn.



The
accused denied that any ostriches were at any time taken to
Masbieker. The accused also described four other incidents where
ostriches broke through to Kotzedal no. 3 and had to be retrieved. In
the first instance they had to cross five fences and in the second
instance three fences to get to where they were ultimately found.






There
was evidence in general that fences were sometimes covered in sand or
in disrepair. There was however no evidence that on these specific
incidents that that was the case. If something such as that had
occurred one would have expected a farmer to take precautionary
measures to avoid a recurrence of birds straying away. Apparently
this was not in this instance done because then specific evidence of
how the ostriches were able to cross the fences would also have been
forthcoming. The denial of the accused that any ostriches were
transported to Masbieker presupposes that all this evidence by De
Koker was a fabrication. That seems to me unlikely in the extreme. De
Koker himself would have taken an enormous risk because as indeed it
happened, he was required to go and point out this farm. This he did,
and ostriches were found, some, of which he could identify such as
the one with the injured leg and the one with the broken wings. The
other possibility is that Uys fabricated all this evidence. This is
equally difficult to accept and was in any event never put to Uys.









There
are other aspects of the evidence of accused no. 1 which is suspect.



First
there is his evidence that there is very good co­operation
between the various neighbours. Then his denial, first of all, that
he had laid a complaint against Botha until he was confronted with
his statement. Then his failure to be able to give an acceptable
explanation as to why he, if there was such good co-operation between
neighbouring farms, he laid the complaint especially after Botha had
explained to him what had happened. There was the border incident
where eventually two of his friends were arrested. His initial
description of this incident was that it had not been of a serious
nature.








In
regard to the Obobogorob incident, he testified in chief that he went
to Langvlei to collect his bull when he saw ostriches in Obobogorob
which he accepted were his ostriches. He said that he then told Pauli
so. That was the person who borrowed the bull from him. However, in
cross-examination he said that Pauli never turned up at their
pre­arranged rendezvous. In evidence in chief he testified that
after he called accused no. 2 on the radio he then went back to
Hollweg to pick up the truck of accused no. 2 to assist them in
bringing back the ostriches. However, in cross-examination he said
that he travelled in his truck and could then radio accused no. 2,
who also has a radio in his car, to come over. That presupposes that
accused no. 2 was with his truck and that it was not standing at
Hollweg where, so he testified in chief, he picked it up and followed
his son-in-law. According to the evidence in cross-examination he,
together with van Wyk in the Mercedes, then left for Kotzedal. He
did not go from Hollweg to assist in driving the ostriches. His
admission that on this occasion he crossed the border at an
uncontrolled point also therefore came to naught. These are
unexplained discrepancies regarding the Obobogorob incident which,
coming from the same witness, are difficult to accept. The evidence
of Alexander is important and there can be no doubt that Alexander
can be regarded as an expert in regard to the raising of ostriches.
However, I agree with Mr Small that Alexander's final answer that the
birds that he saw were neither black, nor blue ostriches but a
crossing, which is not to be found in Oudtshoorn or has never been
seen by the witness elsewhere in South Africa, is irreconcilable with
the answer he gave in cross-examination by Mr Small, namely that the
ostriches he saw could just as well have been raised in South Africa.
His evidence seems to me to be to the effect that the overwhelming
majority of the ostriches he saw were domesticated.









As
far as Mr Theron's evidence is concerned, it must be remembered that
to a great extent his evidence is based on the impression he had of a
lot of ostriches. He never saw 250 ostriches on the farm during 1993.
In fact, his evidence is silent as regards 1993. De Koker may have
overstated the situation that during 1991 or 1992 there were only
these three ostriches. However, Diedericks, as I have said, also
stated that in 1993 there were only two ostriches on the farm apart
from the 14 or 15 domesticated ones.









Considering
all the evidence, I am satisfied that the evidence of De Koker can be
accepted. His evidence is in various aspects corroborated by
other facts and other witnesses. The suggestion that his evidence was
fabricated either by himself or by Uys can in view of all the facts
and circumstances not be accepted.






I
have given due consideration to the evidence of accused no. 1 but
have come to the conclusion that, considering all the evidence, his
version is false and cannot be accepted. He was not a satisfactory
witness. In many respects his evidence is contradictory and
improbable.









This
is however not the end of the matter. In regard to counts 2, 14, 27,
39, 51 and 63 Mr Du Toit argued in the alternative that it was not
shown that ostriches are game or wild animals for the purposes of
section 49(1) of Ordinance 4 of 1975. Mr Du Toit submitted that the
purpose of Ordinance 4 of 1975 was to protect wild animals and game
in nature. Protected game includes birds which means the protection
of all species of a particular genus and not all species of birds.
The interpretation should be
ejusdem
generis
.
Ostriches are protected under the Improvement of Livestock Act, Act
25 of 1977.









As
stated before. Section 49(1) prohibits the importation of any wild
animal or game or skin thereof into Namibia. Wild animal is defined
in Section 1 (LVTI) as follows:











"(a)
For the purposes of any provision of this Ordinance excluding a
provision of Chapter 4, means any vertebrate (including any fish,
bird and reptile) whether kept or bred in captivity or
elsewhere belonging to a non-domestic species and the habitat of
which is in the Republic of South Africa or the territory."






This,
so it seems to me, includes all vertebrate, fish and reptiles which
habitat is in South Africa or Namibia and which do not belong to a
domesticated specie. In the Afrikaans version non-domesticated is
described as "wat nie 'n soort huisdier is nie". This
definition certainly includes ostriches. Whether the fact that
ostriches are domesticated will remove it from the operation of the
definition of wild animal, is, so it seems to me, a possibility,
which seems to me to depend on whether it can be said that a certain
specie of ostrich is domesticated. It further seems to me that the
fact that a lion or tiger may be tame, will not remove such lion or
tiger from the ambit of Section 49(1) because the specie itself is
not domesticated. This is also made clear by the words "whether
kept or bred in captivity or elsewhere".









Game,
on the other hand, means specially protected game, huntable game,
huntable game birds and exotic game. See Section l(XVI). Further, in
terms of Section l(XLI), protected game is in schedule 4 divided into
animals and birds. In regard to birds the following is provided. "All
species of birds except the huntable game birds mentioned in schedule
6 and the following birds,: weavers, sparrows, mousebirds, readheaded
quelae, bul bul and pied crow."



As
I read this schedule all species of birds are protected except
huntable game birds mentioned in Schedule 6 and the six species
specifically mentioned under protected game, namely weavers,
sparrows, etc.









Ostriches
are nowhere mentioned in the various schedules to the Ordinance,
however, the above definition is wide enough and in my opinion clear
enough to include also ostriches.






However,
in regard to both the definitions of wild animal and game the
question may validly be asked whether if it is shown that in regard
to a particular specie there exists a domesticated branch of that
specie whether such domesticated specie is covered by the
definitions. As was submitted by Mr Du Toit, the primary purpose of
the Ordinance is the protection of wild animals and game which
includes wild birds. The definition for instance of wild animal,
makes it clear that no animal or bird belonging to a domesticated
specie and which has its habitat in South Africa or Namibia is
included in the definition. When it comes to game and more
particularly birds, the birds mentioned in the two lists are wild
birds of nature, not belonging to any domesticated specie. Likewise
all the animals mentioned in the schedule do not include domesticated
animals of any nature. As was argued by Mr Du Toit, if regard is had
to the purpose of the Ordinance and this specific wording and
applying the principle of ejusdem generis I must conclude that
species of domesticated animals are not included in the provisions of
the Ordinance. It would in my opinion be absurd to give the words
"all species of birds" a meaning so wide so as to include
also chickens, domesticated ducks, turkeys, etc. and to apply thereto
the provisions of Ordinance 4 of 1975.






Application
of various sections of the Ordinance to domesticated animals will no
doubt lead to absurdities. In terms of the Ordinance domesticated
ostriches will fall under protected game. Section 27(1) therefore
applies and in terms of the definition of hunt, ostriches cannot be
killed without the necessary permit. Killing thereof, otherwise than
with a permit or in self-defence, is a criminal offence in respect of
which a penalty of R4 000 or 4 years imprisonment can be imposed. See
further Section 40(1) and (2), 41(1), 44, and 50(A) as examples where
the application of these sections to domesticated animals such as
ostriches will lead to absurdities which will stifle and kill any
industry based on the farming of domesticated ostriches. In view of
the indication of what was intended, given by the Ordinance itself,
it is permitted not to give to the wide words "all species of
birds" its ordinary and wide meaning. See in this regard
Union
Government (Minister of Finance) v Mack

1917 AD 731 at 743.






The
question then is, is there a domesticated specie of ostrich. If this
is not such a well-known fact that the Court can take judicial notice
thereof, then the evidence before me, especially that of Alexander,
makes it clear that that is so and that also by inter-breeding wild
ostriches can be domesticated. For purposes of the Livestock
Improvement Act, Act no. 25 of 1977 ostriches are regarded as
animals and the exportation thereof is dealt with in Section 17 of
the Act. See also Proclamation AG61 of 1979. In Section 1 of Act 12
of 1990, Stock Theft Act, domesticated ostriches are for purposes of
the Act classified as stock.








It
is generally not permissible to interpret one Act by making use of
the context of another Act, but the provisions of these Acts are at
least an indication that in many respects ostriches and domesticated
ostriches are dealt with differently by the legislature than is the
case with other wild animals and game. The finding of the Court that
Ordinance 4 of 1975 does not apply to domesticated ostriches will
therefore not leave a legislative hiatus.






I
have consequently come to the conclusion that domesticated ostriches
are not covered by the provisions of section 49(1) of Ordinance 4 of
1975. In my opinion therefore the accused cannot be convicted on
counts 2, 14, 27, 39, 51 and 63 on the basis that it was proved that
most, if not all of the ostriches brought into Namibia were
domesticated. If I am wrong in this conclusion then it was for the
State to prove that the ostriches which were brought in, fall within
the ambit of Section 49(1) and this the State fails to prove.






In
regard to the entry into Namibia at a place other than a border post
the Court must decide the matter on the evidence found to be proved,
in other words on the evidence of the State. It was argued by Mr Du
Toit that in respect of the area between Biesiepoort and Kotzedal 3
where no fence is in existence and in regard whereof it was also
stated by the witness Theron that there were no beacons, Mr Du Toit
submitted that the offence can only be committed where a border was
set which was on the evidence not the case. I am not aware of any
such principle either in municipal or international law regarding the
border of a country, nor was
I
referred
to any such principle. Theron testified that the eastern border of
Namibia runs along the 20th meridian and according to Theron this
border has been recognised as such since 1 July 1890. This is also
not a case where, because no border was physically in position, the
accused did not know that they were crossing into South Africa and
back into Namibia. They knew that Biesiepoort and Obobogorob were in
the Republic of South Africa, and Kotzedal 3 and 1 and Witpan were in
Namibia.









According
to the evidence of De Koker accused no. 2 accompanied them from
Kotzedal to Biesiepoort and back on the first occasion when they
fetched ostriches. They took the gravel road where there was no
control post. There was no evidence that accused no. 1 was involved
on this occasion.









In
regard to the second occasion there De Koker said that accused 2
accompanied them from Kotzedal to Biesiepoort, but there was no
evidence from De Koker that he also accompanied them back to Witpan.
This evidence came from Bernard Jansen. Accused no. 1 was also not
involved on this occasion.








In
regard to the third occasion there was no specific evidence that
accused no. 2 accompanied them back to Namibia. Accused no. 1
was not involved on this occasion.






In
regard to the fourth occasion De Koker specifically stated that
accused no. 2 accompanied them to Biesiepoort but that he then
remained behind. Accused no. 1 was also not involved on this
occasion.









On
the fifth occasion De Koker testified that they were accompanied by
accused no. 1 to Biesiepoort and on their return accused no. 1 was
present when they returned to Kotzedal.









In
regard to the sixth incident which took place at Obobogorob, De
Koker testified that accused 2 accompanied them there and was also
present when they returned to Witpan. On this occasion accused no. 1
and the truck driver returned with the main road and went presumably
through the control post.



Consequently
the Court finds as follows: Accused no. 1:







(a) On
Counts 2, 14, 27, 39, 51, 63, 12, 24, 37,
49 and 73, accused no.
1 is found not guilty
and discharged.



(b) The
accused is found guilty on count 61.
As far as accused no. 2 is
concerned:




  1. On
    counts
    2,
    14,
    27,
    31,
    39,
    51,
    63,
    37,
    49,
    and

    61
    the
    accused
    is
    found
    not
    guilty
    and
    discharged.



  2. On
    counts
    12,
    24
    and
    73,
    the
    accused
    is
    found
    guilty.










































STRYDOM,
JUDGE PRESIDENT